(dissenting).
I am in complete accord with the court in its view that the jury was justified in finding the defendant guilty on the second and third counts of the indictment and that the court did not err in sustaining the Government’s objection to the testimony of the defendant’s witness Ettinger. But I cannot agree that the defendant is entitled to a new trial because of the remarks made by counsel for the Government in his summation with respect to the defendant’s witness Silberstein. I agree that those remarks were ill-advised and in bad taste but I do not believe that they could have operated to discredit the witness in the minds of the jury, and thus to prejudice the defense, to any greater extent than Silberstein’s testimony, to which the defendant had made no objection, had already done.
Silberstein testified, on cross-examination, that he'had been removed from the service of the Treasury Department for immoral conduct involving falling in love with a woman, he being at the time a married man. He stated that he did not wish to discuss the nature of the charge of immoral conduct. I am satisfied that any juror of ordinary intelligence and experience with the facts of life would inevitably infer from this testimony that Silberstein had been discharged by the Treasury Department for sexual misconduct with a woman other than his wife. Certainly anything less than adultery would hardly be described in ordinary parlance as “immoral” conduct with a woman other than one’s wife. I cannot believe that a juror would have thought that such drastic action as dismissal would have been taken by the Government if Silberstein had merely taken a woman other than his wife to dinner or the theatre or sent her a valentine or a Christmas gift. And it is equally certain, to my mind, that a juror would be likely to infer that the witness’s admitted immoral conduct took place in a secluded spot. Whether this was a hotel room or some other place would not seem to be a point of any consequence in this case.
I repeat that I regard the remarks of Government counsel with respect to Silberstein’s conduct as unfortunate and ill-advised. But I am sure that the ideas which they suggested as to the nature of his conduct were already in the minds of the jurors and others in the courtroom as the result of the reading of his testimony. Moreover it must be remembered that Silberstein was not the defendant on trial and these facts were-relevant, if at all, only on the question of his credibility as a witness. This the trial judge adequately pointed out in his charge which I think put the whole matter in its proper perspective.
In my judgment the defendant was fairly tried and properly convicted. I would affirm the judgment of the district court.