UNITED STATES v. GOLDSTEIN
No. 221, Docket 20931
Circuit Court of Appeals, Second Circuit
May 26, 1948
168 F.2d 666
John F. X. McGohey, U. S. Atty., of New York City (William M. Regan, Bruno Schachner, and John C. Hilly, Asst. U. S. Attys., all of New York City, of counsel), for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
CHASE, Circuit Judge.
The appellant was tried by jury in the District Court for the Southern District of New York on an indictment in one count charging a violation of
The perjury charged in the indictment was that appellant, David Goldstein, while being examined under oath administered by a duly authorized special agent of the United States Treasury Department in a proceeding to determine the tax liability of American Coated Fabrics Co., Inc., Aetna Coated Fabrics, Inc., David Rosen, Sydney Drooker, and the appellant himself, will
The following undisputed circumstances which the tax investigation disclosed will show how the time when the above stock certificates were issued was significant. In August, 1945, when treasury agents were investigating the tax liability of the American Coated Fabrics Co., Inc., and that of Drooker and Rosen, its owners, certain duplicate invoices of Aetna Coated Fabrics were found in American‘s possession. These led the agents to suspect that Drooker and Rosen owned an interest in Aetna and might have received therefrom taxable income which they had failed to report on their returns. The investigation, therefore, was broadened to include the tax liability of Aetna and of the appellant, who was its president. It appeared that the appellant had been employed in 1937 by Drooker and Rosen to manage Aetna, which they had organized as a corporation with 750 authorized shares of capital stock, only 75 shares of which had been issued. The stockholders, appellant told the agents, were nominees of Drooker and Rosen, one Hillson having a certificate of 25 shares, one Shaw having one of 25 shares, and appellant having two of 12 1/2 each. The nominees all indorsed their certificates in blank and the certificates were in the possession and control of Drooker and Rosen thereafter at least until October 2, 1941. Some time before that date the appellant had been made president of Aetna and until the fall of 1940 had been paid for his services a weekly salary ranging up to perhaps $100. But late in 1940 commissions on the gross sales of Aetna were credited to him on the books and he may have withdrawn some of them in addition to his weekly salary. By the fall of 1941 his salary had been substantially increased and commissions of 5% on the gross sales of Aetna were credited to him on the books. At irregular intervals he withdrew parts of this credit by checks drawn on Aetna. Each time the checks were cashed by or in behalf of the appellant, he turned over the greater part of their amounts to Drooker and Rosen. This practice was followed throughout the taxable years under investigation. The commissions so credited were deducted as business expenses by Aetna on its income tax returns and were reported by the appellant on his and the tax paid, but the part received by Drooker and by Rosen was unreported by them.
With this background the special agents suspected that the amounts received by Drooker and Rosen were in fact secret dividends upon which they were taxable and that at least that part of the commissions were not deductible as business expenses by Aetna. The explanation of the appellant for his division of commissions with Drooker and Rosen was in effect that in the fall of 1940 he felt that his management of Aetna entitled him to more remuneration than he had been receiving and that he ought to be allowed to purchase some of its stock. He talked with Drooker and Rosen and in January, 1941 the three came to an oral understanding substantially as follows. The appellant‘s salary was increased and he was given a five per cent commission on Aetna‘s gross sales. He was then to purchase one-third of the issued shares of Aetna for which he agreed to pay Drooker and Rosen two-thirds of the commissions after taxes for a period of five years, but he was not to receive the shares until the end of that period. Thus, the portions of each withdrawal of his commissions which he had shared with them were, he said, the payments he had agreed to make for the Aetna stock.
This explanation of the disposition of his commissions was not taken at face value and the special agents asked the appellant to produce Aetna‘s stock book. After some delay it was produced and turned out to be a loose-leaf binder with blanks not printed for use by any particular corporation. The first four certificates issued in 1937 as above indicated had been marked cancelled and
During the proceedings above mentioned at which the appellant was interrogated under oath, he testified positively that all of the certificates numbered 5, 6, 7, and 8 had been issued on October 2, 1941 and that he had signed each certificate on that date as president of Aetna. He also testified that Drooker and Rosen were present when all these certificates were issued and that all the shares were then put in his name merely for the business purposes which had before been fulfilled by having the stock in the name of dummies, viz., to prevent the trade from knowing that Drooker and Rosen owned Aetna. It was thought, so appellant testified, that to transfer all the stock to the appellant would better serve the purpose of secrecy than to let some shares remain in the names of Hillson and Shaw.
At the trial below the prosecution, among other things, proved the above in substance and introduced evidence tending to show that, although the appellant had included the commissions withdrawn from Aetna in his gross taxable income and had paid the taxes thereon, the treasury would have been entitled to a greater tax if the tax liabilities of Aetna, Drooker, Rosen, and the appellant had all been computed on the theory that the amounts received by Drooker and Rosen were dividends paid to them as stockholders of Aetna. To show that certificates Nos. 5, 6, 7, and 8 had not been issued on October 2, 1941 but had been issued after March 23, 1945, Belskin, an employee of the New York State Department of Finance and Taxation, testified that on the latter date a representative of Aetna brought the stock book to his office for examination and that he then examined the book for the purpose of determining state tax liability. He also in the usual and regular course of the business of the state office then made a record on a card, provided for that purpose, showing the result of his examination. This card was duly filed as a part of the records in the office and was admitted in evidence in corroboration of the testimony of this witness. It gave substantial support to his testimony which was to the effect that at the time he inspected the stock book it contained only the stubs of certificates Nos. 1, 2, 3, and 4. Aside from those stubs, his testimony ran, the book showed no evidence of any certificates having been issued, the remaining pages all having been blanks.
The government rested upon the case thus made, with Belskin‘s testimony corroborated only by the record in his office that he himself had made substantially as above outlined. The appellant then moved for a dismissal on the ground that no prima facie case of perjury had been shown in that no false statement by the appellant of any fact material to the investigation had been proved and on the ground that in any event the testimony of the witness Belskin was not sufficiently corroborated to comply with the so-called two-witness rule in perjury cases. That rule is that the offense must be proved either by the direct testimony of two witnesses or by that of one witness supplemented by proof of corroborating circumstances. See Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496; 7 Wigmore on Evidence, 3rd Ed., § 2042.
The judge reserved decision on the motion and the appellant introduced evidence tending to show the following defense on the facts. Certificates Nos. 5, 6, and 7 had actually been issued on October 2, 1941 but through an oversight the aggregate number of shares they represented was only 72 out of the intended total of 75. It had been decided to put all of the stock in the appellant‘s name in 1941 and the mistake was not discovered until sometime in the fall of 1945. Then certificate No. 8, for the three shares not accounted for in the three pre
It is clear and indeed is conceded by the appellant that before Rule 29 of the Federal Rules of Criminal Procedure,
“(a) Motion for Judgment of Acquittal. * * * The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. * * *
“(b) Reservation of Decision on Motion. If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. * * *”
From the use of the words “shall order the entry of judgment of acquittal” in subdivision (a) without any express provision for the reservation of decision on a motion made or for delay in making the entry upon the court‘s own motion, the appellant argues that he is entitled to a reversal, because (1) his motion to dismiss made at the close of the government‘s case was well founded and (2) he was entitled to have it granted nunc pro tunc after delayed consideration without regard to anything which meanwhile occurred at the trial. We shall assume, without deciding, both that, as the evidence stood when the motion was made, the appellant was entitled to have his motion granted and that he could have insisted upon a ruling upon his motion, by virtue of
It is well settled that in prosecutions for perjury the testimony of one witness will not as a matter of law suffice to prove the commission of the crime beyond a reasonable doubt unless corroborating circumstances are shown to exist. See Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495, 156 A.L.R. 496. Without corroboration at least two living witnesses are necessary, as a general rule, to prove the offense adequately, though there are exceptional instances, not present here, where no living witness need testify.*
As the case stood when submitted to the jury there was evidence from two witnesses called by the appellant, as well as his own admission, that certificate No. 8 had been issued in the fall of 1945 to correct the mistake in making out certificates Nos. 5, 6, and 7 for only twenty-four shares each. After the special agents had called for the stock book during the investigation it had been discovered that the number of shares supposedly re-issued when the first four certificates were cancelled was three short and that No. 8 was then issued and signed by the appellant as president of Aetna to make up the original and intended number. This evidence, of course, fully satisfied the quantum rule as to proof of the appellant‘s having at least incorrectly testified under oath in the treasury proceedings that he had signed the
The judge charged the jury that as a matter of law the time when the reissue certificates were executed was material to the investigation of the tax liabilities. That, we think, was clearly correct. The purpose of the tax investigation was to determine the liabilities of the taxpayers for taxes or for filing fraudulent returns. Whether dividends had been taken from Aetna under the guise of commissions paid the appellant and in part transferred to Drooker and Rosen depended in large part, if not entirely, upon whether the appellant had actually made arrangements with them in 1941 to buy a one-third stock interest in Aetna and pay for it out of his commissions. Whether he had made such an agreement rested entirely upon his assertion and theirs. And they insisted that it was practically contemporaneous with the reissuance of all the stock in the appellant‘s name on October 2, 1941. Whether all the stock was then reissued was, of course not determinative of the question whether part of the Aetna stock was then bought by the appellant. But how the stock of Aetna was held at any time while the withdrawals called commissions were being made was a factor in determining what was the actual nature of those withdrawals. Though the investigation was not primarily concerned with the date when the stock was reissued, it was concerned with whether the appellant had purchased and been paying for any stock out of his commissions. At least one test of materiality is whether the false testimony had a tendency to make the investigators more ready to believe that the purchase had been made than they would have been had they known the truth about the reissuance of the shares in certificates all dated October 2, 1941. Had the appellant told the agents that those certificates, or at least one of them, had actually been issued after the beginning of the investigation and that they, or at least one of them, had been predated, it can hardly be questioned that it would have tended to make the investigators less willing to believe his representations about his purchase of and payment for some of the stock. His entire statement would have been reflected upon, and his credibility opened to doubt. Under these circumstances, his false testimony as to certificate No. 8 was material. Carroll v. United States, 2 Cir., 16 F.2d 951; Blackmon v. United States, 5 Cir., 108 F.2d 572; United States v. Slutzky, 3 Cir., 79 F.2d 504; United States v. Shinn, C.C., 14 F. 447, 453. And it is of no consequence that a truthful statement by appellant might not have resulted in making the investigation more successful than it was. United States v. Hirsch, 2 Cir., 136 F.2d 976.
Since, then, there is ample evidence to support the verdict as to certificate No. 8, the judgment should stand. The sole count in the indictment charged the perjury as to each certificate. The court in its charge made it clear that the accusation was that the appellant testified as to all, making no distinction at any time except to say that, “There was somewhat different testimony concerning 5, 6, and 7, and concerning 8.” The jury also charged that, “If you do not believe Belskin you do not have to pay any more attention to the case you will acquit the defendant forthwith.” Thus it appears that the jury actually found that the appellant willfully testified falsely as to all four certificates. Even if, as a matter of law, the evidence did not support the verdict as to certificates 5, 6, and 7, it did as to 8. That is enough. The single count charged perjury as to four certificates, that is, made four assignments of perjury in one count. The appellant did not request the withdrawal of any specific assignment of perjury. Rather, he moved for a dismissal of the entire indictment both at the close of the government‘s evidence and again at the close of all the evidence. That is not the equivalent of a request for a restricted submission. In the absence of such request and its denial, it is enough that one assignment in the count was adequately proved. United States v. Mascuch, 2 Cir., 111 F.2d 602,
Judgment affirmed.
L. HAND, Circuit Judge (concurring).
I agree with all that Judge CHASE has said, and I also think that Belskin‘s testimony, which was corroborated by Zeller‘s testimony upon the defense, was “direct” testimony that certificates five, six and seven had not been made out in 1941. If A swears that at a stated time there was an entry in a book, and B swears that he examined the book at that time, and that the entry was not there, I submit that B has “directly” contradicted A. Belskin swore that when he saw the book only blank certificates followed the first four stubs. Had it been a solidly bound book that testimony would have “directly” contradicted Goldstein, who said that certificates five, six and seven had been made out in 1941. I do not understand that Goldstein disputes this; but he answers that, since the book was not solidly bound, but of the loose-leaf kind, it was possible that at the time Belskin saw it, certificates five, six and seven may have been removed and were later replaced. That is theoretically possible, but so would it be theoretically possible in the example I have put, that a solid book might be substituted for the occasion. We should not for that reason require two witnesses to the identity of the book; we should allow the jury to find that it was the identical book on any reliable evidence. So here, the evidence is that this was the stock book of Aetna Coated Fabrics, Inc., and the jury was free to infer that it had not been tampered with for the occasion, just as they might, had it been a solid book. Were not some such latitude permissible in determining what is a “direct” contradiction, we should in effect insist upon two witnesses to every fact in a prosecution for perjury. I can find no warrant for any such dialectical extravagance, and I think that the verdict can stand as to all four certificates.
Judge AUGUSTUS N. HAND concurs in the foregoing opinion, as well as in the one by Judge CHASE.