Berger v. United States

295 U.S. 78 (1935)

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Nature of the Case

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Facts

D was charged with having conspired with seven other persons named in the indictment to utter counterfeit federal reserve banknotes. Katz, a co-conspirator in the indictment pleaded guilty to the conspiracy count and testified for P upon an arrangement that a nolle prosequi as to the substantive counts would be entered. The evidence tended to establish not a single conspiracy as charged but two conspiracies -- one between Rice and Katz and another between D, Jones, and Katz. The only connecting link was that Katz was in both conspiracies and the same counterfeit money had to do with both. There was no evidence that D was a party to the conspiracy between Rice and Katz. During the trial, the United States prosecuting attorney misstated the facts in his cross-examination of witnesses; put words into the mouths of such witnesses; suggested by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, conducting himself in a indecorous and improper manner. The trial judge sustained objections to some of the questions, insinuations, and misstatements, and instructed the jury to disregard them. The prosecutor even went so far as stating that when witness who had difficulty identifying D, that she actually knew him well. The prosecutor also told the jury that the defense had an advantage in being allowed to “twist” witnesses while the prosecution could not. The trial court did not grant a mistrial. D moved to dismiss the charges at the close of evidence. The court refused. D was convicted and appealed.