343 U.S. 946 (1952)

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U.S. Supreme Court

LEVITON v. UNITED STATES , 343 U.S. 946 (1952)

343 U.S. 946

Rubin LEVITON, Arthur Blumenfeld and Martin Markowitz, petitioners,
The UNITED STATES of America.
No. 326, Misc.
Decided May 12, 1952.

Rehearing Denied June 9, 1952.

See 343 U.S. 988.

Mr. Sidney Feldshuh, for petitioner Leviton.

Mr. John Logan O'Donnell, for petitioner Markowitz.

Mr. David E. Scoll, for petitioner Blumenfeld.

Memorandum of Mr. Justice FRANKFURTER.

This seems to me to be another instance where it becomes helpful to an understanding of the exercise of the Court's discretionary jurisdiction in granting or denying certiorari, to indicate the kind of question that did not commend itself to at least four Justices as appropriate for review by this Court. Several questions were raised by the petition for certiorari. It suffices to indicate the nature of only one, which can be most helpfully conveyed by giving the views of the Court of Appeals and of the dissenting opinion. 2 Cir., 193 F.2d 848.

Speaking for that court, Judge Clark, with the concurrence of Chief Judge Swan, stated the matter thus:

    'The third incident involved a newspaper article in the New York Times, December 14, 1949. This account falsely reported that the indictment covered some $9,500 worth of barbed wire; that Field, a Customs Bureau visa clerk who had received the eleventh and last fraudulent export declaration in this case and who was an important witness for the government, had been offered a $200 bribe by Leviton to suppress this evidence (Leviton had in fact purchased $44 worth of clothing as a gift for Field); and that the defendants were part of a much larger 'ring.' A copy of the newspaper containing the article was found in

    Page 343 U.S. 946 , 947

    the jury room. We do not think, however, that such a report, erroneous as it was, made a fair trial impossible. The judge gave very explicit instructions that the contents of the article were to be disregarded and went on to point out how the offenses set forth in the indictment differed from those described in the article. Trial by newspaper may be unfortunate, but it is not new and, unless the court accepts the standard judicial hypothesis that cautioning instructions are effective, criminal trials in the large metropolitan centers may well prove impossible. United States v. Keegan, supra, 2 Cir., 141 F. 2d (248) at page 258. Citations of the reporting media for contempt by publication are rare and the Supreme Court has stated that their activities in reporting criminal trials do not deprive the accused of a fair trial unless there is a 'clear and present danger' that such will result. See Ex parte Craig, 2 Cir., 282 F.1d 8, affirmed 263 U.S. 255; Baltimore Radio Show v. State, Md., 67 A.2d 497, certiorari denied, with opinion by Frankfurter, J., Maryland v. Baltimore Radio Show, 338 U.S. 912; Note, 59 Yale L.J. 534. Such was not the showing here.' Id., at page 857.

Judge Frank in dissent took this view of the question:

    'On the second day of trial, the prosecutor held a 'press conference' after court. He told the newspaper reporters of matters which (so he later advised the court) they promised not to print. In the next morning's New York Times, there appeared a story, told with typical journalistic vigor, about 'export racketeers' who 'poured $500,000 of commodities into European and South African black markets.' The significance of the newspaper story was this: It professed to recount the testimony of a witness that Leviton, over the phone, had offered him a $200 bribe to withdraw from customs files a fraudulent declara- [343 U.S. 946 , 948]

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