Before DUFFY, Chief Judge, and MAJOR and SCHNACKENBERG, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
From judgments of conviction upon the verdicts of a jury, defendants, Julius L. Echeles ("Julius") and Paul Echeles ("Paul"), have appealed.
The indictment consisted of 13 counts. Eight of the first nine counts charged they received, and one count that they solicited, money in consideration for a promise of support and the use of influence in obtaining for the payers appointments to various positions in the post office, being misdemeanors in violation of 18 U.S.C.A. § 215. Counts 10 to 12 charge the defendants promised money to John Haderlein, postmaster of Chicago, to influence his decision in official matters, being felonies in violation of 18 U.S.C.A.§ 201. Count 13 charges Paul and Julius and defendant, Max Lewis, with conspiracy to commit all the offenses set forth in counts 1 through 12 in violation of 18 U.S.C.A. § 371.The jury returned a verdict of not guilty as to Lewis on count 13 and found Paul and Julius guilty on all 13 counts.
1. Defendants in this court say that the court's prejudicial rulings and conduct deprived defendants of a fair trial according to due process of law.
(a) They say that the trial judge abdicated his judicial function to the prosecutor.In support of this contention they point to the following proceedings: (1) When, prior to the trial, defendants attempted to procure by subpoena duces tecum certain witness statements, the court struck from the subpoena reference to a statement by one John Haderlein. Defendants now say, in doing so the judge reversed himself following a suggestion by Mr. Cohen, the government counsel. We find nothing in the proceedings on that occasion to sustain this charge. (2) Later government counsel moved to quash a subpoena procured by defendants and served upon the postmaster, claiming that it called for a huge mass of documents which obviously had no materiality. Defense counsel stated that they certainly should have the personnel jackets of the individuals named in the indictment. To this the court responded, "How about those, Mr. Cohen?" The court did not merely suggest that the defense "consult with Mr. Cohen," as they now say in their brief. The court added to the suggestion, "Perhaps he can get for you what you really want. After all, you do not want him to bring a carload of personnel jackets in here." But defense counsel rejoined, "Yes, I do, your Honor." The court then sustained the motion to quash the subpoena. (3) At the trial, when Finn, attorney for defendant Lewis, stated an objection to certain government exhibits, the court asked Cohen if he cared to comment on that objection. The latter stated that he had no objection to their not being admissible against Lewis at that time. Whereupon the court told the jury that "We are going to receive these exhibits at this time only as to the defendants Paul Echeles and Julius L. Echeles. They are not to be considered as evidence against the defendant Max Lewis at this time. I will sustain your objection at this time so far as your client is concerned, Mr. Finn. I am sorry I didn't ask you to state your position." Mr. Stewart, attorney for Paul and Julius, said, "I had forgotten he is here, your Honor. I beg his pardon." (4) When the question of subpoenas came up again, the court observed that Mr. Cohen was to consider them overnight and inquired: "Did you consider them?" Receiving an affirmative answer, the court asked, "Would you care to state the Government's position with respect to these subpoenas?" Thereupon followed a statement by Mr. Cohen of the government's objections to the production of the material asked for by the subpoenas.
Seventeen other colloquies, of a similar nature, are also cited to show abdication. This contention, given prominence by defendants as the first point argued in their brief in this court, is without basis in fact.
(b) Defendants urge that the court repeatedly and improperly limited their cross-examination. We have examined the incidents at the trial specifically relied upon by the defendants in this connection.
As we said in United States v. Lawinski, 7 Cir., 195 F.2d 1, at page 7, where this court discussed the scope of cross-examination:
"It is for the presiding judge to exercise a wise discretion in determining whether, considering the examination in chief, it is fit and proper that the questions presented be permitted or excluded. Storm v. United States, 94 U.S. 76, 24 L. Ed. 42. All the decisions agree that the latitude allowed should be great enough to subserve ends of justice; but once fixed by the trial court it can not be deemed erroneous except where it is clear that that discretion has been abused, even though the discretion is necessarily vague in extent."
We do not believe that the court abused its discretion in respect to the scope of cross-examination allowed defendants' counsel.
(c) It is argued that the trial judge embarked on a deliverate campaign of ridiculing trial counsel in the eyes of the jury. Typical of the examples cited are the following: When defense counsel Stewart was cross-examining the first government witness, the district attorney objected and the court sustained the objection saying: "Mr. Stewart, if there is some part of the case that makes it necessary for that information to go to the jury, there is a way of getting it in. We are restricted by the rules of evidence as to what you may inquire into on cross-examination." Mr. Stewart: "Am I to understand Your Honor is going to allow them to prove what they want to and I cannot ask anything about these records?" Later, the court said to Mr. Stewart: "There is a way to prove anything material to your case, but that is not the right way, in my opinion." Again the court said to him: "If it is important to your case, then there is a way to get it in. We cannot do everything with one witness." The court also said: "I do request of you, Mr. Stewart, that you ask questions that are designed to impeach * * * just conform to the rules of evidence."
In view of the colloquy between court and counsel which appears to have accompanied these and other similar instances cited by defendants, we believe that the remarks of the court were not intended to, and did not, have the effect of ridiculing defense counsel.
A fair appraisement of the record fails to show that anything which the trial judge did or said deprived defendants of a fair trial.
2. Defendants also argue that the district attorney (Mr. Cohen) violated defendants' right to a fair trial because of his illegal and prejudicial conduct and questions during the trial. They point out that, the court having delegated its judicial function to the prosecution attorney, it was therefore error for the prosecutor to take advantage of that situation. We need not consider this argument in view of our holding that there was no such abdication.
We will, however, consider what defense counsel cites as the "highest peak" reached in the prejudicial conduct of the district attorney. He was cross-examining postmaster Haderlein, a defense witness. Without objection from defense counsel, Mr. Cohen asked: "For your information, Mr. Haderlein, the post office inspectors have testified that Paul Echeles told them, in addition to what is in the statement, that you were the person mentioned as the appointing official. Now, does that charge your opinion of Paul Echeles?" The witness answered, "Either it would change my opinion of him or of the inspectors." Mr. Cohen then asked that the answer be stricken as not responsive to the question. The court said: "It may go out, and the jury will disregard it."
Obviously, the question called for a yes or no answer and the answer was unresponsive. Inasmuch as no objection was made to the question, and the court properly struck the answer and told the jury to disregard it, we find that the incident involved no prejudicial conduct on the part of the prosecutor.
We similarly characterize the other instances of alleged misconduct.
3. Julius, before the trial, moved for a severance and supported his motion by his own affidavit, which set forth that he was informed that Lewis made a statement to the federal officers and also testified before the grand jury, that Paul made and signed a statement and Julius was informed that Paul "expects" to claim on the trial that the statement was involuntary. He also stated that he (Julius) was not present when the above statements were made and that "they are not admissible as evidence against him," having been informed that said statements purport to relate to transactions in which Julius had been mentioned. He also stated that he "fears and represents his belief that any such statement introduced in evidence as against said co-defendants in a joint trial would prejudice the rights of this affiant to a fair and impartial trial." The motion was denied.
While defense counsel admits that the granting of a severance rests within the discretion of the trial court, he maintains that in this case the court abused its discretion. He does not point out what showing was made by the affidavit accompanying the motion upon which such charge of abuse of discretion is based. Actually there is no allegation in the affidavit as to the contents of the statements signed by the co-defendants nor is there any allegation that their defenses would be antagonistic to the defense of Julius.
Julius then shifts to a later occasion preceding the trial, when there was a discussion before the court as to who the attorneys for the various defendants were. It appearing that Mr. Finn would try the case for the defendant Lewis, and that Mr. Stewart and Mr. Oliver would represent both Paul and Julius, the district attorney stated that "There may well be situations developing where there will be a genuine conflict of interest between those of Julius L. Echeles and Paul Echeles." However, Mr. Stewart and Mr. Oliver, after a lengthy colloquy with the court and counsel, persisted in stating that they would represent both Paul and Julius. The court thereupon called these two defendants into chambers and stated what had just occurred. When Julius started to answer, Mr. Stewart silenced him. During the colloquy the court repeatedly asked Mr. Stewart if there was anything he would like to say or any comment he wished to make. Mr. Stewart asked whether it called for comment and added that he did not hear any motion. It is clear that neither he nor any attorney representing Julius made any motion on that occasion for a severance. The case thereafter went to trial as to all three defendants. Mr. Stewart and Mr. Oliver did try the case for both said defendants.
Inasmuch as Julius and Paul, and their lawyers, were advissed of the possibility of conflict of interest between them at the trial and they nevertheless then chose to proceed with common counsel, one of whom still represents them in this court, and inasmuch as they made no motion for severance when this possible conflict of interest was called to their attention before the start of the trial, we do not believe that the charge of abuse of discretion by the trial court in this respect is supported by the record.
At the close of the government's case, Mr. Stewart renewed the motion for severance which was made originally and denied. It was denied.
In Allen v. United States, 91 U.S.App.D.C. 197, 202 F.2d 329, where a motion by each of two defendants for a severance was made on the second day of the trial, although before any evidence had been introduced, on the ground that their defenses were inconsistent, without pointing out to the court where the inconsistency lay, it was held that a denial of the motion did not constitute an abuse of discretion. The court, 202 F.2d at page 334, quoted from Dauer v. United States, 10 Cir., 189 F.2d 343, at page 344:
"'* * * The mere fact that there is hostility between defendants or that one may try to save himself at the expense of another is in itself alone not sufficient grounds to require separate trials. It is only when the situation is such that the exercise of common sense and sound judicial judgment should lead one to conclude that one defendant cannot have a fair trial, as that term is understood in law, that a severance should be granted.'"
Defense counsel argues that the jury was confused when evidence was submitted against one defendant, in keeping in mind the exclusion of the defendants as to whom it was not admitted. The record, on the other hand, indicates an intelligent understanding by the jury of the applicability of such evidence. For instance, the jury found the defendant Lewis not guilty, although it found the other defendants guilty. Moreover, it is highly significant that the record of the trial is devoid of any indication of antagonism between Julius and either of his co-defendants.
On the record before us we cannot say that error was committed by the trial court in originally denying Julius' motion for severance or in later denying the motion of the respective defendants for a severance.
4. Defendants contend that they were deprived of their constitutional right to compulsory process. They refer to the court's quashing of several subpoenas duces tecum which would have required the government to produce for their inspection certain documents supposed to be in the government's possession. This contention is based upon the sixth amendment to the constitution of the United States which requires:
"In all criminal prosecutions, the accused shall enjoy the right * * * to have compulsory process for obtaining Witnesses in his favor * * *."
and also upon rule 17(c) of the federal rules of criminal procedure, 18 U.S.C.A., which provides:
" For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to product the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. * * *"
(a) The first document sought was a statement by postmaster Haderlein. When the motion was argued, the district attorney told the court that Haderlein would not be called as a government witness. It may be that under rule 17(c) the subpoena process is available to a defendant to enable him to impeach a government witness by the use as evidence of a statement given by him to the government. Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S. Ct. 675, 95 L. Ed. 879. However, that is academic in this case because Haderlein did not testify as a government witness. He did testify as a defense witness. Under these circumstances the defense could not have introduced the statement in evidence. It therefore had no evidentiary value to the defense and any effort made by the defendants to obtain the evidence by subpoena could not have been in good faith. Bowman Dairy Co. v. United States, supra, 341 U.S. at page 219, 221, 71 S. Ct. 675. Rule 17(c) is a statutory method of implementation of the sixth amendment. Defendants not having brought themselves within the purview of rule 17(c), no error was committed by the district court in quashing the subpoena insofar as it pertained to Haderlein's statement.
(b) The second subpoena required production of the postal personnel jackets of all postal employees recommended for promotion during the tenure of Haderlein as postmaster, together with all documents and letters referred to therein or relating thereto. At the time the court quashed this subpoena, he stated, "After all, you do not want him (district attorney) to bring a carload of personnel jackets in here", to which defense counsel replied, "Yes, I do, your Honor." This remark indicates that the scope of the subpoena was unreasonable and oppressive within the meaning of rule 17(c), and the court did not abuse its discretion in quashing it.
(c) The third subpoena required production of the personnel jackets of the accomplice witnesses who testified against the defendants. When the defense moved for production of these documents, the court deferred ruling on the motion at the specific request of their chief counsel. Later in the trial, upon renewal of defendants' motion for production, the court permitted the subpoena to be filed and ordered the documents produced. Defendants are in no position to now urge as error the precise action of the court which defense counsel requested.
(d) The fourth subpoena required production of the "political personnel files" maintained by Haderlein during his tenure as postmaster, further identified by the names of six persons who testified for the government, and one Harold R. Noftz, deceased, who is named in the indictment as having paid money to influence his promotion. In the colloquy of counsel and court which preceded the quashing of this subpoena, the district attorney stated that the government had no "political personnel files", although there were personnel files of a confidential nature.
He contended that there was no showing as to the materiality of the documents sought. Defense counsel indicated to the court that the purpose of the subpoena was to reach letters which men in public office might have written to the postmaster about the qualifications, or lack or qualifications, of aspirants for positions.We do not believe that such letters would be material in this case, because the indictment relates to payments of money and promises to make such payments, in consideration of promises of support and influence in obtaining such appointments. The existence of letters from public officials to the postmaster would have no tendency to prove or disprove such charges in the indictment. The quashing of the fourth subpoena was therefore not error.
5. On one occasion during the trial Mr. Stewart, who had been acting as chief counsel for Julius and Paul, was missing from the courtroom.
Thereupon Mr. Oliver, the other attorney for said defendants, stated to the court "We have run out of witnesses at this time" and asked for a short recess. The court asked him if he had no other witnesses in court ready to go ahead, and Mr. Oliver said that that was correct. The court asked how long it would take to get a witness, and Mr. Oliver stated that he did not know where Mr. Stewart was at that time or what he had in mind. The court stated that Mr. Stewart had not told him why he was leaving.
The court then asked Mr. Oliver several questions in regard to whether there was a witness in the courtroom who could testify. Mr. Oliver's answers were evasive. The court then denied a motion for an adjournment and told Mr. Oliver to put a witness on. Mr. Oliver stated "I'll see if I can find one in the witness room. There may be one or two there." On request, the court gave Mr. Oliver a few minutes adjournment for the purpose of telephoning Mr. Stewart.
The colloquy accompanying these proceedings is said by defense counsel to delineate the "intense prejudice of the judge and his intent to do the defendants harm."
The unexplained disappearance of chief defense counsel Stewart during the trial, without notice to or leave of the court, followed by the exasperating sparring of Mr. Oliver when the court attempted to find whether any witness was in court to testify, in our opinion, falls very short of showing prejudice on the part of the judge. Courts have repeatedly held that the granting of a continuance during a trial is purely a matter of discretion and not subject to review by upper courts, unless the discretion be abused. United States v. Vrilium Products Co., 185 F.2d 3, at page 5; United States v. Glasser, 7 Cir., 116 F.2d 690, 701; United States v. Hartenfeld, 7 Cir., 113 F.2d 359, 362, certiorari denied 311 U.S. 647, 61 S. Ct. 30, 85 L. Ed. 413; U.S. v. Cook, 7 Cir., 184 F.2d 642, 643.
We hold that the refusal to grant a continuance under the circumstances above outlined was not an abuse of discretion ...