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IN RE COHEN

December 3, 1973

In the Matter of Stanley S. COHEN

Edward Weinfeld, District Judge.


The opinion of the court was delivered by: WEINFELD

Stanley S. Cohen (hereafter respondent) was cited for criminal contempt of court in violation of 18 U.S.C., section 401(1) *fn1" for misbehavior in the course of a criminal trial presided over by Judge Dudley B. Bonsal, wherein he was counsel for the defendant, one Stuart Cohen. The trial commenced on March 12 and was concluded on March 26, 1973, when the jury returned a verdict of guilty. *fn2" On March 30, 1973, Judge Bonsal issued the contempt citation, pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure, *fn3" which he referred to the Chief Judge of this Court for the designation of another judge to hear and determine the charges; this Court was so designated. *fn4" The citation was duly served upon the respondent, who appeared by an attorney who represented him throughout these proceedings. Upon representations made by the government at a pretrial conference, with the defendant's acquiescence and the Court's approval, the trial was nonjury. *fn5"

Before considering the citation, it is desirable to set the matter in proper focus. Rule 42 is a means of "vindicating the majesty of law, in its active manifestation, against obstruction and outrage." *fn6" Whether the summary procedure under subdivision (a) of the Rule is invoked by the trial judge in whose presence the alleged conduct is committed or the notice and hearing procedure before another judge under subdivision (b) is applied, the purpose of the Rule is to assure the integrity and efficiency of the judicial process. The Rule protects the right of counsel to be a fearless, vigorous and effective advocate of his client's interest, but rejects the concept that contemptuous conduct is to be equated "with courage or insults with independence." *fn7"

 The citation was based upon thirteen (13) incidents occurring at various times during the trial. As to each, Judge Bonsal specified the pages of the trial record, *fn8" but did not enumerate each as a separate charge. Although, upon the hearing, *fn9" these incidents, for convenience, were referred to by counsel as numbered specifications or particulars, this Court indicated its determination would be based on the totality of the cited occurrences as charging a unitary offense. *fn10" In addition to the acts or statements contained in the trial transcript, the government, to support the charge, relied upon the testimony of one of Judge Bonsal's law clerks, *fn11" who was present throughout the entire trial and who described the respondent's expressions, manner of speaking, bearing and attitude with reference to each cited particular. *fn12" The respondent testified on his own behalf, giving his version of the events; in general he urged mitigating circumstances and denied an intent to obstruct justice. An attorney associated with the defense testified in a challenge to the accuracy of the court reporter's transcription of one specification which attributed to respondent a vulgarity, referred to hereafter.

 A proper evaluation of the charges required, in addition to consideration of the hearing testimony and an appraisal of the witnesses who testified thereat, a close study of the trial record to place in their proper perspective the acts and conduct which underlie the charges against respondent *fn13" -- to recreate, to the extent possible, the living trial as it unfolded from day to day. *fn14" Thus, the Court has read the entire record of the trial of Stuart Cohen, almost 2,000 pages.

 The indictment upon which Stuart Cohen was brought to trial was comparatively simple. It charged that he and another had made false material statements to a licensed gun dealer on three separate occasions in connection with the purchase of rifles, in violation of the Gun Control Act, *fn15" and that they, together with other named persons, had conspired to violate that Act. *fn16" The codefendant had previously pled guilty and Stuart Cohen was the sole defendant on trial before Judge Bonsal.

 The record indicates that from the very start of the trial, even before the jury was sworn, an atmosphere of tension was created. When the case was called for trial, in an obviously emotional argument, the respondent moved for dismissal of the indictment upon a claim that his client previously, on July 9, 1971, had entered a plea of guilty in the Eastern District of New York to a charge of conspiracy to possess and transport explosives (upon which he had received a suspended sentence) on a "distinct understanding" or "impression" of a promise by the prosecution that the plea would cover the instant charges, and expressed the view his client had "been betrayed." *fn17" The charge was denied by the prosecutor as without substance, noting that the instant indictment was returned in August 1972, more than a year after the entry of the guilty plea in the Eastern District, and almost two years before the instant case was called for trial. Additionally, Judge Bonsal observed that pretrial conferences had been conducted in September and October 1972, and January and February 1973, and no such claim had ever been advanced on behalf of the defendant. He ordered the trial to proceed. The voir dire of the jurors was not without incident. Respondent's conduct required an admonition from the Court that he sit down -- a direction that was necessary to repeat on a number of occasions on the opening day of trial, and many times thereafter. *fn18" Also on that first day, the trial judge cautioned respondent, "please don't keep making these speeches" *fn19" -- an admonition which likewise it was necessary to repeat throughout the course of the trial.

 Respondent, in his opening statement to the jury, sought to inject into the case obviously irrelevant matters, *fn20" which if permitted would have proliferated the issues under the indictment. Thus he addressed the jurors: "And Mr. Cohen does believe, as I believe and as many other Jews believe, that another holocaust may come and that we may have --." Upon objection by the prosecution, the Court urged upon defense counsel: "Don't get into that, please. You raised the issue of knowledge and intent, quite properly. But let's not get into other issues." *fn21" But as counsel continued with his opening argument, he disregarded the Court's request and again touched upon irrelevant matters. He then referred to the Jewish Defense League, a militant organization whose activities had come to public notice and of which the defendant was a member. The Court, in an effort to keep the trial within the framework of the indictment charges, noted: "This case does not involve that. This case purely involves the question of these guns, and whether there was a conspiracy to acquire these guns . . . . Let's keep to the issues of this case." *fn22" The Court previously had observed that the indictment was "very simple," charging the defendant "with having made false statements to get three rifles, with a conspiracy count thrown in . . .," which respondent challenged as "not that simple," and the Court continued, "It is going to be that simple." *fn23" At the end of the first day of trial, after the jury had been discharged, the following occurred:

 
"MR. JAFFE: . . .. I would ask you to admonish defense counsel to stop making speeches on objections.
 
"THE COURT: I have been doing my best. I will try to stop him. Please don't make speeches."

 The Court thereupon admonished both defense and government counsel: "[Stop] all this rhetoric and let's move along with the trial." *fn24" It is against the background of this charged atmosphere at the very start of the trial, which intensified over the following eleven trial days, that the respondent's acts and statements, set forth in the citation which is attached hereto, *fn25" must be considered.

 Upon a careful word by word study of the trial transcript and an evaluation of the testimony and demeanor of the witnesses who testified at the hearing with respect to the circumstances attendant upon each specification, there emerges a clear pattern of persistent and repetitive tactics by respondent which obstructed and interfered with and delayed the orderly progress of the trial and hampered the trial judge in the performance of his judicial duties. *fn26" It would be a work of supererogation to detail the evidence and the circumstances surrounding each numbered specification. A number of instances will suffice.

 The first incident, while perhaps by itself not constituting contemptuous conduct, was a forecast of subsequent incidents enumerated in the citation which clearly come within the ban of proscribed conduct. Immediate events surrounding this incident establish that respondent shouted in making objections, used a strident tone and sarcastic language, *fn27" engaged in unnecessary argument and misstated the law. *fn28" After the jury was excused, the prosecutor appealed to the trial judge to "have the defense counsel stop misstating what the law is and misstating what I am doing." The Court thereupon said to respondent, "I do agree that it is unwise to make these speeches," and commented that the sidebar conferences were delaying the trial. The response of the respondent was, "I would ask that the Court at this time declare a mistrial and disqualify itself from sitting in this matter. I think that the Court throughout the inception of this proceeding has been grossly prejudicial and unfair and unheeding of the rights of the defendant --." *fn29" An objective study of the record indicates that there was not the slightest justification for this accusation of prejudice, unfairness or indifference to the rights of the defendant on trial. This was the forerunner of similar charges or motions for mistrial when the Court sought to impress upon respondent that his actions were obstructive and to have him desist therefrom. *fn30" The fact that the Court may have ruled adversely to respondent's contention by no means reflected a prejudicial attitude and did not warrant the motion for a mistrial. *fn31"

 The second specification centers about the cross-examination by respondent of a government witness who admitted that her initial statements to official investigators as to the circumstances of the sale of firearms, the signing of the forms in connection therewith, and the persons involved as purchasers were not true. Upon the trial, contrary to an earlier identification of another person, she named the defendant as a purchaser of the firearms. She testified that her earlier false versions were given because she was frightened, since the sale of the weapons was made contrary to law and regulations. *fn32" Respondent's continued loud, harsh and strident questioning of this witness soon degenerated into a shouting contest between the two. She was adamant, however, that her trial testimony was truthful; also that she had been admonished by the prosecutor to tell the truth at the trial. *fn33" Respondent made sarcastic, mocking and disrespectful comments about this latter aspect of her testimony. He also directed sarcastic remarks to the trial judge when he suggested that respondent, in examining the witness, not "get so excited." *fn34" Under respondent's repetitious questioning the witness reiterated she was giving truthful testimony, with the result that he shouted even more, with the witness being led to respond in kind until finally the Court admonished respondent "to please modulate your voice. This is not a shouting match, this is a trial, and the jury and I are interested in the facts, and it doesn't help to have you make such a loud noise in the courtroom," to which respondent sarcastically replied, "thank you, your Honor."

 
"THE COURT: Or to engage in arguments with the witness. Now please relax.
 
"MR. COHEN: I am angry, your Honor. I am very angry." *fn35"

 As the witness, under continued badgering by respondent, insisted she was testifying truthfully, it was evident that respondent became angrier and even enraged. The Court was compelled to interrupt the trial for a sidebar conference, with the jury still in the box. The prosecutor then protested respondent's conduct as "outrageous," and the Court stated: "I have asked Mr. Cohen to stop this shouting and stop all this argumentation. It doesn't go in this court. It really doesn't." *fn36" Thereupon, as Judge Bonsal's clerk testified, *fn37" respondent raised his voice so that the jury could hear; in addition to accusing the government of interference with his cross-examination, the respondent expressed his view that the use of such a witness was "an outrage against every standard of decency and morality." *fn38" Finally, the Court said to respondent: "You don't improve your position by these antics and shouting in the courtroom, and I am not going to allow you to do it." *fn39"

 Respondent resumed his cross-examination of the witness, which the record shows was not only hectoring, but repetitious and in disregard of the Court's admonition not to repeat previous questioning, until the Court again directed respondent to refrain, stating: "We went all through this yesterday afternoon," with respondent replying, "No, we did not, your Honor. We went through a portion of it." *fn40" The result was an event related to the third occurrence, *fn41" when respondent yelled at the witness: "You are not telling the truth now, Mrs. Brown." The Court reacted: "Please, now. Wait a minute. Please don't do that." Thereupon respondent turned from the witness and to the Court, and, as described by the prosecution witness, with his hands dropped to his sides in a gesture of resignation to suggest the Court was unfair to the defense and that it was useless to go forward, in the presence of the jury, stated: "Your Honor, if the Court wants counsel to stand mute, I'll be happy to." *fn42"

 With respect to this same witness and the next specification, *fn43" the record demonstrates a repetitious, badgering cross-examination, in continued disregard, if not in defiance, of the Court's admonition, and conducted in such a loud voice that the Court again was forced to interrupt the trial and excuse the jury. The following then occurred:

 
"THE COURT: . . .. I would just like to say it is quite apparent to me you haven't been in the federal court very often, and perhaps you are not used to our procedures.
 
"MR. COHEN: I object to that comment, and I consider it --.
 
"THE COURT: You can object all you want, but I have been a Judge here for over eleven years, I have never held a lawyer in contempt, and s [sic] don't want to hold a lawyer in contempt.
 
"I have asked you any number of times to try to keep quiet, modulate your voice, not shout, because I don't think it is doing any good to anybody other than prolonging the trial. I have been trying to help you in every way I can, *fn44" and I obviously will continue to, but I am going to see that this trial is conducted as it should be, as a search for the truth, and a search for the truth depends on the testimony and the facts that are brought out and doesn't depend on the noise or the loudness of lawyers.
 
"I say that to you with great sincerity, and I hope that this is going to stop. It isn't your view as to whether a witness may be telling the truth or lying, you are entitled to cross-examine that witness, the conclusion on that is the jury's.
 
"I would also like to say I feel from what's gone on -- here that you may be emotionally involved in this thing, and I ask you to think about that and try not to be because what we are trying to reach here is justice in this case and you are an officer of the Court and I am sure you are just as interested in that as I am." *fn45"

 This fervent plea was answered by the respondent, after noting he had been a practicing member of the bar for over twenty years and argued hundreds of cases in the state and federal courts:

 
". . .. I moved yesterday for the Court to disqualify itself and to declare a mistrial. I feel that the conduct of the Court in no manner whatsoever is remotely interested in justice or the discovery of the truth in this case." *fn46"

 The respondent then made the frivolous and rather singular comment that the determination of the witness' credibility "is not for a jury decision" and continued in argumentative and obstructive colloquy. *fn47" Parenthetically, at the hearing respondent testified that he construed the trial judge's statement that he never held a lawyer in contempt and of his reluctance to do so as a threat to hold him in contempt. A fair reading of what transpired does not in the slightest justify that interpretation, nor even if so construed does it justify respondent's continued misconduct thereafter.

 These are but several of the thirteen incidents set forth in the citation. The record abounds with other instances of unseemly and reprehensible conduct which repeatedly delayed the trial and interfered with its orderly progress. There were contumacious and disrespectful outbursts when respondent was displeased with the Court's rulings. *fn48" Thus, he addressed the Court: "Come on, your Honor, this is ridiculous." *fn49" This came during respondent's questioning of the defendant on direct examination relative to testimony given against him by one of the government's main witnesses, an undercoveragent. The trial judge, at a sidebar conference, noted that he was "very concerned" about respondent's apparent lack of preparation. *fn50" When soon after this incident another sidebar conference was forced by another of respondent's outbursts and the Court urged him to "relax," reminding him "[you] are a lawyer in a courtroom," his response was: "I have been for many years, and I have never seen anything like this circus," and he continued the colloquy in a loud voice, requiring an admonition by the Court that respondent "keep [his] voice down." *fn51"

 At another point, when respondent again vociferously objected to the cross-examination of his client, the Court directed him to sit down. He refused; he was openly defiant:

 
"MR. COHEN: I have heard you ask me to sit down, your Honor.
 
"THE COURT: I ask you again.
 
"MR. COHEN: And I won't sit down; I will not tolerate this. This is a travesty."

 His conduct before the jury required a recess, during which he again charged that what the Court permitted in the case was "ridiculous"; that the "Court's conduct in this trial makes it a travesty of justice." *fn52"

 On another occasion, in cross-examining a witness about an exhibit, the prosecutor suggested he show it to the witness, whereupon respondent said: "There is no point in showing it to the witness." The Court directed that he show it to the witness, to which the respondent flippantly answered: "I will be happy to. He can make paper airplanes out of it for all I care." *fn53"

 No useful purpose would be served in detailing each and every particular contained in the citation, which show persistent open defiance and disrespect to the Court, often in the presence of the jury. *fn54" In sum, the respondent, throughout the trial, engaged in loud and boisterous conduct, repeatedly disregarded the orders of the Court, without justification frequently charged the trial judge with hostility and unfairness when rulings went against him, persisted in continued questioning of witnesses as to matters previously excluded by the Court, badgered a witness far beyond the limits of proper cross-examination, and carried on obstructive colloquies, causing repeated delays and interruptions of the trial. Furthermore, at one point, without excuse, he was twenty minutes late for a court session which previously had been scheduled specifically to accommodate him, *fn55" and soon thereafter he charged that the Court had "sandbagged" him when it admonished him for having been late. *fn56"

 One of the specifications n.57 [Footnote Omitted] includes the use of a scatological term by respondent when the trial judge requested him to sit down. *fn58" This specification presented the only issue of fact as to the trial transcript. I find upon a full consideration of the testimony given by the witnesses that the defendant did use the term and that the court reporter correctly transcribed respondent's utterance. If there is to be the reality of a fair trial, both in fact and in appearance, it must be conducted in an atmosphere of respect, order, decorum and dignity befitting its importance both to the prosecution and the defense. *fn59" In our tradition "a courthouse [is] a hallowed place of quiet dignity as far removed as possible from the emotions of the street"; *fn60" the atmosphere that should pervade the trial is one of "hush and solemnity of a court of justice." *fn61" While an attorney is under a duty to represent his client with vigor and fidelity, this duty is not without its limits; it does not permit an attorney to misconduct himself in the pursuit of his client's interest. *fn62" Respondent's status as an officer of the Court is not to be overlooked; *fn63" as such he has a higher duty to assist in maintaining the dignity of the Court than the ordinary citizen. *fn64" One may understand the use of certain language patterns and word choice among the illiterate and uneducated, but surely the lawyer may not descend to the use of gutter language to give vent to his disagreement with a court's ruling. *fn65" The duty of a lawyer to his client does not justify even in this age of permissiveness, if the dignity and decorum of a trial is to be preserved, the use of scatological terms by a lawyer to express his disagreement with a court's ruling.

 The pattern of misbehavior was persisted in even after the Court, with almost infinite patience, as the record reveals, urged upon respondent that he desist therefrom and that he adhere to proper standards of trial conduct. The totality of his conduct, as evidenced by respondent's defiant disregard of the Court's repeated orders -- which time and time again delayed the trial either because of compelled sidebar conferences or recesses to avoid prejudicial impact upon his client's cause -- and his reckless indifference to his professional duty and for orderly judicial process compel a finding that his misbehavior was willful, was intended to and in fact did materially obstruct the orderly processes of the trial; it interfered with the proper discharge by the judge of his judicial function. *fn66"

 The defendant's subjective denial of intent to obstruct, expressed at the hearing before me, meets a sharp challenge from the objective facts of his acts and statements at the trial; it would require a blatant disregard of the totality of evidence not to find that defendant's conduct was willful, deliberate and intentional. It has been stated that the requisite intent may be ascertained from a trial transcript. *fn67" Indeed, in this case it fairly leaps from the trial record and is sufficiently established even without the testimony of the prosecution witness at the hearing. This is not a case of an isolated instance of contemptuous conduct, a sudden outburst, which now and then does occur under the pressure of trial where one is carried away by misguided zeal in the defense of a client and which may be overlooked as aberrational. Nor is it a case where the defendant can advance with any degree of plausibility a claim that his acts and conduct were triggered by or in response to the acts or attitude of the trial judge. One searches in vain through the entire record to find a single such instance; the judge was not an "activist seeking combat." *fn68" To the contrary, here, after a series of incidents which resulted in compelled and repeated interruptions of the trial, the Court virtually beseeched the defendant to desist from his pattern of conduct. The trial judge was a model of self restraint and displayed Job-like patience; *fn69" in measured words and with calmness he sought to impress upon respondent that his conduct, if continued, was leading in the direction of a contempt charge which, with reluctance, he would have to consider. *fn70" But it was to no avail; instead, petitioner stubbornly persisted in his reprehensible and contumacious conduct.

 It is one thing for counsel to strongly and persistently pursue a contention; it is quite another to continue in actions that debase the trial when warned to refrain from obstructive tactics. In the event the Court's rulings were erroneous, the rights of his client were amply protected by an appropriate appeal, which the Court specifically called to respondent's attention in a vain effort to have him desist. *fn71" That the Court made adverse rulings to the defense, even if counsel disagreed, did not justify contumacious behavior or disrespectful outbursts, or the repeated specious challenges to the Court's integrity, and the motions for mistrial on the ground that it was biased, prejudiced and unfair to the defense, a number of which were made in the presence of the jury. *fn72"

 The proper conduct of the trial -- that it go forward expeditiously with due regard for the rights and interests of the litigants -- requires the maintenance of discipline in the courtroom. While under our adversary system counsel for litigants, prosecutors and defense attorneys alike, are expected to plead the cause of their clients with vigor and zeal, they are required to comport themselves so that they do not interfere with the integrity or efficiency of the trial process -- indeed they are under an affirmative duty to further, not obstruct, the administration of justice. And when the conduct of an attorney causes unwarranted and frequent interruptions in the orderly and expeditious conduct of the trial, the end result is disruptive of the trial court's business so as to amount to an obstruction of justice. Here there was such a course of conduct by respondent from the very start to the end of the trial. When respondent in summation again adverted to the irrelevant and emotional matter which he sought to inject into the trial in his opening statement to the jury, the Court again urged respondent to keep within bounds; thereupon he abruptly terminated his summation and with a sarcastic and mocking manner asked: "Would your Honor like me to discuss a burlesque show or a rodeo or . . . ." *fn73" There can be little doubt that had Judge Bonsal, immediately upon the commission of several of the incidents cited, acted summarily pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure and held respondent in contempt, his judgment would have been beyond challenge. *fn74"

 In sum, the evidence compels the conclusion that the government has established beyond a reasonable doubt the essential elements of the contempt charge, to wit:

 (1) that the totality of the acts and conduct charged to respondent constituted misbehavior, committed in the presence and the hearing of the trial judge;

 (2) that such misbehavior materially interfered with and delayed the orderly progress of the trial and further interfered with the trial judge in the discharge of his duties during the trial and resulted in the obstruction of justice;

 (3) that such misbehavior was engaged in by respondent willfully, deliberately and with intent to obstruct the administration of justice. *fn75" Accordingly, respondent is found guilty as charged.

 The foregoing shall constitute the Court's Findings of Fact.

 APPENDIX

 PORTION OF RECORD PRECEDING SPECIFICATION OR PARTIUCLAR 1 *fn76" (T.R. 115-21)

 MR. COHEN: I object to this entire proceeding and I want the record to reflect that objection. However, if the Court will allow the use of this material, again I request that this exhibit be introduced in evidence.

 THE COURT: Do you have any objection to that?

 MR. JAFFE: None at all.

 THE COURT: All right.

 MR. COHEN: And before the reporter leaves, your Honor, I would also, while we are at the side bar, ask that the exhibits which are introduced into evidence, and which speak for themselves, not be read to the jury with the dramatic and deleterious impact --

 MR. JAFFE: I didn't think I was being dramatic.

 THE COURT: That applies to both of you. That can apply to you too. The jury requires a modulated voice.

 MR. COHEN: There is no reason or excuse for that.

 THE COURT: Okay.

 (In open court)

 MR. JAFFE: The Government at the defendant's request offers Government Exhibit 11E.

 THE COURT: All right.

 (Government Exhibit 11E for identification was received in evidence).

 MR. JAFFE: Ladies and gentlemen, I am going to read from Exhibit 11E:

 "Ammo 108. September 6, 19" --

 MR. COHEN: I object to the reading of this document, which speaks for itself.

 THE COURT: Let him read it.

 All right. Go ahead and read the document, but read it as it is written.

 MR. JAFFE: "1. On Monday, August 31, 1970, the assigned left his residence at 5:15 a.m.

 "3. Mr. Stuey Cohen and the assigned went to Dau-Son's Sporting Goods in Woodbourne, New York, where the assigned observed Mr. Dave Brown and John, last name unknown, an ammunition salesman. Mr. Brown asked John if John could get 200 pounds of unregistered black powder for a good cause. John stated he would have to look around. Mr. Brown stated he would have the 20 gauge sawed off shotgun ready by Thursday, September 3, 1970. Mr. Cohen purchased the two boxes of 38 special ammunition, which Mr. Brown put down as mops on the bill."

 Q Mr. Brown, does that refresh your recollection?

 A Yes, it does.

 Q Do you recall now having a conversation with Mr. Cohen on Monday, the 31st of August?

 A That's correct.

 Q Tell these ladies and gentlemen, if you would, who else was present.

 A Stuey Cohen, John and --

 THE COURT: Who is John?

 THE WITNESS: John is a salesman.

 THE COURT: Your salesman?

 THE WITNESS: Yes.

 THE COURT: What is his last name?

 THE WITNESS: I don't know his last name.

 Q Do you recall if Mr. Rosenthal was present?

 A Mr. Rosenthal was present.

 MR. COHEN: Your Honor, I object to that. Why doesn't the --

 THE COURT: Please, now. Sit down.

 MR. COHEN: Your Honor, no, no, no "please, now." This is ridiculous for the United States Attorney to testify and to put words in the mouth of the witness.

 THE COURT: Okay. All right. Please don't do that. Ask the witness what happened.

 Q Mr. Brown, what did you say and what did each of the people there say?

 A I said to him -- I said to -- I asked John if he could get me the powder, and he said it would be pretty -- very hard to get. And at the time I had no intentions of getting it for him. I was just stringing him along because I just wanted their business. But he never got no black powder from me.

 And also Stuey says -- "You know," he says, "I wouldn't like to get the powder here." I says, "We can meet some place and I can give it to you."

 But he never got the powder.

 Q Did you ever sell black powder to Stuart Cohen?

 A Never.

 Q Did you ever sell black powder to anybody at the camp?

  A Never. I never had it in my store. I've always had smokeless powder. Never.

  Q You heard Exhibit 11E, is that correct?

  A That's correct.

  Q Did you sell any ammunition on that day?

  A On that particular day?

  Q That's right.

  A I don't recall. I might have, but I don't recall.

  Q Did you have any conversation with reference to shotguns?

  A Yes. This I had.

  Q Would you tell us what you said and what anybody else said, telling us who the other people are who were talking?

  A I was talking to Stuey Cohen. He wanted me to cut the shotgun down. He wanted something like 18 inches. And I said to him that I would make it legal, and he said all right, he'll go along with it.

  Q Did he give you a shotgun to have cut down?

  A Yes, he did.

  Q And what kind of weapon was it?

  A I believe it was a single barrel, single shot shotgun.

  Q And what did you do with that weapon?

  A I didn't have the time to cut it down at the time, so I sent it out to Mr. Hartman in Livingston Manor.

  Q Who is he?

  A He is a gunsmith, too.

  Q And did there come a time after that when you received the gun back?

  A Yes, I did.

  Q And thereafter did you give it to anybody?

  A I gave it to Stuey Cohen. And Mr. Rosenthal, I believe, was present when I gave it to him. I'm not sure, but I believe he was there.

  Q And did he pay you for the job?

  A Yes, he did.

  Q And to your knowledge was the gun at that time of a legal length?

  A Yes, it was, definitely.

  Q Now, you just said, I think your testimony was, that you were stringing him along because you wanted business?

  A That's correct.

  Q Would you explain.

  MR. COHEN: Your Honor, I object. This is direct examination. He is not rehabilitating his witness.

  MR. JAFFE: I am not trying to.

  THE COURT: I don't think he needs any explanation anyway.

  I think you testified that you wanted business.

  THE WITNESS: That's correct.

  THE COURT: And therefore you engaged in conversation about these things, but you said you had no intentions of ever giving him the black powder.

  THE WITNESS: No intentions, and he never got it from me.

  THE COURT: Okay.

  Q Did Mr. Cohen pay you for the work done on that shotgun?

  A Yes, he did.

  Q Do you recall how much?

  A I don't recall.

  MR. JAFFE: May I have just a moment, your Honor?

  (Pause)

  MR. JAFFE: Judge, s [sic] have nothing further.

  THE COURT: All right. We'll take our morning recess, ladies and gentlemen.

  (The jury left the courtroom.)

  MR. JAFFE: May I be heard, Judge?

  THE COURT: I want to first check on the 3500 material.

  MR. JAFFE: That was furnished yesterday, your Honor.

  THE COURT: You have received that?

  MR. COHEN: I have an application.

  THE COURT: Well, go ahead.

  SPECIFICATION OR PARTICULAR 1 ...


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