The claim of error on the ground that the Court refused
Kerner's motion for severance based on United States v.
Echeles, 352 F.2d 892 (C.A.7, 1965), is without merit. In
Echeles, the exculpatory statements of the co-defendant were
made on the record and under oath at an earlier trial which was
the basis for the subsequent subornation of perjury charge
against Echeles. To grant a severance under our circumstances
would destroy the use of joint trials as provided under the
rules of criminal procedure. See United States v. Johnson,
426 F.2d 1112, 1116 (C.A.7, 1970); United States v. Kahn,
381 F.2d 824, 841 (C.A. 7), cert. den. 389 U.S. 1015, 88 S.Ct. 591, 19
L.Ed.2d 661 (1967).
Kerner complains of the Court's refusal to read him its
charge prior to instructing the jury. He contends that this
action "was at variance with accepted practice and denied
counsel a fair opportunity to object to the charge as given."
His contention is founded on an erroneous statement of fact.
This Court does not recall ever hearing of any federal judge
following such a practice. We were informed that only one of
the fifteen district judges in Chicago, Judge Campbell,
advocates this procedure. This Court has never provided
counsel with its charge in advance. In this case, the Court
worked on and made changes in the charge through the day
before it was delivered. Counsel was advised of the substance
of the charge more than three days before it was delivered
through the Court's action on the 405 jury instructions
proposed by counsel. Our action is consistent with Rule 30,
Kerner contends that certain testimony by Miller apparently
concerning Mrs. Everett's state of mind in making the stock
offer is incompetent. The Government responds that this
testimony was in answer to the question, "Why did you relay
Mrs. Everett's offer of stock to Governor Kerner and Mr.
Isaacs?" (Tr. 2952) It contends that the question and answer
relate only to Miller's own intent and, as such, is both
relevant and competent. Even if viewed as opinion testimony as
to Mrs. Everett's state of mind, the testimony had a solid
foundation in the totality of Mrs. Everett and Miller's
combined testimony to permit the jury to weigh its
credibility. In the Court's opinion its admission was not
prejudicial error, if error at all.
The questions to former racing board members as to how they
would have voted had they known the Governor was a shareholder
in an applicant for racing dates are not impermissible
hypothetical questions but go to the factors considered by the
former board member in determining his vote, that is, to his
state of mind. A person is competent to testify to his own
state of mind. See also Bettman v. United States, 224 F. 819,
830 (C.A.6, 1915).
If any mistake was made in stating the theory of Kerner, the
responsibility rests with counsel for their failure to present
an adequate statement of his theory as provided for in the
First Pre-trial Order and Stipulation or for their failure to
advise the Court of the error.[fn2a] The extremely general
nature of proffered statement of Kerner's theory compelled the
Court to extract his theory from his counsel's opening
statement to the jury.
Some of the instructions given the jury that Kerner contends
were error involve questions of law that are not settled; a
few are deemed as frivolous. As to Kerner's proposed
instructions which he contends the Court erroneously refused
to charge, these too involve questions of law. The Court gave
careful consideration to all proposed jury instructions, and
is of the opinion that it did not commit prejudicial error in
its rulings thereon. As to purported error II.D.(2)(b), the
Court instructed the jury that campaign contributions were not
illegal by themselves. Tr. 7454.
Counsel on both sides and the Court advised the jury that
statements of counsel are not evidence and if any such
statements contradict the evidence the jury shall disregard
the same. See, e.g., Tr. 1217.
The closing argument of government counsel that the personal
integrity of the United States Attorney was in issue was
proper in light of the defense claim that the indictment was
". . . the product of a very busy imagination of a very
vigorous and ambitious prosecutor . . . The attempt to torture
the facts into criminal charges is manufactured, unjustified,
unreasonable and not in good faith." Tr. 1305. See United
States v. Hoffa, 349 F.2d 20, 50-51 (C.A.6, 1965).
For the indicated reasons, it is ordered that the motion for
a judgment of acquittal be, and the same hereby is, granted as
to Counts V, VII, X, XI, and XII, and denied as to the other
counts. It is further ordered that the motion for a new trial
be, and the same hereby is, denied.