
    UNITED STATES v. WEBER.
    No. 239, Docket 22393.
    United States Court of Appeals Second Circuit
    Argued April 18, 1952.
    Decided June 5, 1952.
    James R R7an> Brooklyn, N. Y„ for appellant.
    MyleS J. Lane, U. S. Atty., New York City> Thomas F. Burchill, Jr., Norman S. Beier and John M> Foley; Asst Ut s> Atty.f New York cityj of counsei; for appellee.
    _ , „TTr. ,T , Before SWAN, Chief Judge, and AUGUSTUS N. HAND and FRANK, Circuit Judges.
   SWAN, Chief Judge,

The appellant was convicted of perjury in testifying falsely before the so-called Kefauver Committee in New York City on March 16, 1951 that he did not know James J- Moran. At the trial evidence was presented that the Kefauver Committee was a dtdy crea-ted suocommittee of the United States Senate s Special Committee to Investigate Organized Crime in Interstate Commerce. The appellant was sentenced to five years imprisonment and a fine of $2,000. He has been admitted to bail pendjng fog appeal.

The appellant first contends that L J , error was committed in denying motions to , dismiss the indictment because no evidence ,, , , , . was adduced before the grand jury as to ^ ° (1) the competency of the subcommittee 7 ' , . , , ^ before which he testified, and (2) the materiality of the alleged false testimony. -Before the trial commenced, the appellant moved to dismiss the indictment for insufficiency of the evidence presented to the grand jury, or in the alternative for an inspection of the minutes. The accompanying affidavit advanced no facts in support of the application. In denying the motion the district judge stated that in essence it was “a fishing expedition.” We see no error in denial of the motion. A mere request to inspect the minutes, without any statement of facts indicating insufficiency of the evidence, is not enough to require the court to inspect the minutes, There is a presumption that the grand jury acted on sufficient evidence. United States v. Texeira, 2 Cir., 162 F.2d 169, 170.

In the course of the trial counsel for the defendant asked each of the eight witnesses for the prosecution whether he had appeared before the grand jury. Only three had so appeared. At the close of the government’s case, the defendant requested that the grand jury minutes be marked for identification, which was denied, and renewed his motion to dismiss the indictment for insufficiency of the evidence presented to the grand jury. This was also denied, Because the three witnesses who admitted appearing before the grand jury did not include Arnold Schubert, a stenographer, who was called at the trial for the purpose of introducing a resolution which gave Senator Kefauver authority to sit as a committee of one and to swear witnesses, nor Rudolph Halley, counsel to the committee who testified at the trial about Senate Resolution 202, the appellant argues that there was no evidence presented to the grand jury as to the competency of the subcommittee and its authority to administer the oath. This is a complete non seqmtur. Proof of the subcommittee s competency may have been made by exhibits or by other witnesses. As already noted, there is a presumption that a grand jury acted on sufficient evidence in returning an indictment. Such presumption is not overcome merely by showing that some of the trial witnesses did not appear before the grand jury, where the competency of the tribunal may have been otherwise established.

The appellant’s motion that this court „ , L e .-c a • call for the production of the grand jury . . . . , ,, .... mmutes and inspect them is denied.

The appellant next contends that the question whether Weber knew Moran is not shown to have been material to the subcommittee’s investigation. In United States v. Moran, 2 Cir., 194 F.2d 623, we held that the intimacy of Moran’s relations with Weber was relevant and that false testimony as to- the frequency of their visits might impede the investigation. In that case there was proof that Weber was a convicted “policy” gambler. No such proof is present in the case at bar. However, it appears from Mr. Halley’s testimony that the committee was investigating Moran and his associations. We think the committee was entitled to find out whether Weber knew Moran, even if Weber was not shown *° a convicted gambler. Mr. Halley also testified: We had certain specific information, which has never become public concerning the policy racket in New York, that connection we called Louis Weber.” If this testimony was properly admitted, the materiality of questioning kirn as to his acquaintance with Moran is apparent.

The a.ppeiiant moved to strike QUt jjalley’s testimony and urges that derdad 0f tjje motion is reversible error, Hg argues tbat the testin?0ny casts an aspersion on bjs character which may not fee done unlegg he hag chogen tQ place his character or reputation in issue. But counsel misconceives the purpose of this evidence. Testimony that Weber was caded jn connection with the subcommit^ee»g investigation of the policy racket was not offered tQ attack Hg character but be_ cause it wag relevant to the question 0f the materiality of his testimony. See United States v. Moran, 2 Cir., 194 F.2d 623, 625. The question of m,ateriality is for the court> The appellant could have asked that tbe jury be instructed not to consider it> but hig objection to tlle evidence was not gQ Hmited and Qne of hig requests to charge submitted materiality to the jury. Since ^ evidence was competent for the court to consider; we think there was no error jn denying the motion to strike.

_ , ... Several other objections to evidence as ; . , „ well as exceptions to the charge are with- . , , .. . out merit and deserve no discussion.

Finally, it is urged that error was committed in denial of a motion to withdraw a juror and declare a mistrial. This motion was made in chambers on the second day of the trial. On the first day nothing had been done except to impanel , f , the jury. That evening and the next morn-mg several New York newspapers published stories of the impanelling of the jury and alleged that Weber had a prior criminal record, and one paper published a scandalous cartoon. The motion was based on these derogatory newspaper articles, There was no assertion that any of the jurors had read the articles and no request that they be interrogated to ascertain whether they had. Such comments by newspapers during the pendency of a criminal trial are inexcusable. In the case at bar the trial court’s only remedies were either to caution the jury not to be influenced by anything seen in the newspapers or to declare a mistrial. Here the court gave such a caution. We think there was no abuse of discretion in denying a mistrial, United States v. Leviton, 2 Cir., 193 F.2d 848, 857, certiorari denied U.S., 72 S.Ct. 860. 
      
      . See United States v. Moran, 2 Cir., 194 F.2d 623.
     
      
      . In England it is probable that the publishers would be severely penalized. See cases cited in Maryland v. Baltimore Radio Show, 338 U.S. 912, 921-936, 70 S.Ct. 252, 94 L.Ed. 562.
     