United States v. Leo Kaufman

guilty mаn was found on 90 counts KAUFMAN, Before ANDERSON and violating the Soldiers’ and Civil Sailors’ FEINBERG, Judges. Circuit Act, 520(2);1 App. Relief U.S.C. § any person which makes it a crime for ANDERSON, Judge: Circuit required “make or use an un- affidavit employed In Leo Kaufman was knowing der this it to section . . . process Sheng- as a server for one Max be false . . ..” hit, attorney engaged in collection im- The defendant claims that he was large City work for retail New York properly be- convicted the statute companies. stores and other commercial cause, although signed the documents he Shenghit’s service, in Kaufman While affidavits, appeared to no there was signed non- numerous “affidavits” proof that he truthfulness to the swore military serviсe, Shenghit subse- signed. of the he He statements which quently filed in in courts actions various argues they that because were not writ- brought on of his to com- behalf clients oath, they did not ten statements under ply 520(1) App. of the with 50 U.S.C. § any accepted within definition of come Act, Soldiers’ and Relief Sailors’ Civil the “affidavit” that therefore word provides: the statute. there was no violation of proceeding “In action com- however, assumed, that Even if any court, menced in if shall be there actually to the did swear Kaufman any appearance the a default of statements, that as we conclude written defendant, plaintiff, enter- before statutory construction, on a matter оf ing judgment court an shall file us, appellant violated facts before showing setting forth facts affidavit 520(2). provisions of § military is not that the defendant service. ...” purpose of the Soldiers’ and repre- affidavits, prevent de Kaufman these Civil Relief Act is to Sailors’ spoken being personally judgments from entered sented that he had fault defaulting agаinst deter- had armed services defendants and members of the acquitted jury charging under 18 him on 23 mail fraud U.S.C. counts might fortunately huge falsification, in circumstances where another themselves, appear superimposed upon first, defend unable to that Realty represented Securities see In re Associates (E.D.N.Y. Corp., F.Supp. sworn to when fаct it had not requires that, This, asserts, proves before Act been. he there judg- any plaintiff can default real obtain a affidavit and shows that he ment, unlawfully charged. affidavit with he must file an But the rule being stating penal strictly the individual statutes should be in- military terpreted protect not in the service. sued is meant provides penalties for those surprisе. Act who defendant from also unfair Cer- tainly into Kaufman, seek mislead courts mislead or who testified he granting judgments the basis default knew he was documents which non-military purported false affidavits. be affidavits expected give York New courts to signed by The instruments legal affidavits, documents the of effect they represented contained Kaufmаn that hardly position persuade in a to this statements, by him to as such true sworn unfairly surprised by that he was subscribing notary public. before a On the district court’s construction. The they appeared all intents their faces for warning of the statute fair and the fully completely purposes to and and be by McBoyle line drawn is clear. v. qualified proper filed in as affidavits States, 27, 25, United 283 51 S.Ct. compliance the with of stat terms the 340, (1931). L.Ed. 75 816 It is difficult Under these circumstances —when ute. suppose to that a criminal would even appears its face a written instrument hope, believe, let alone that if he induced presump be a to an affidavit —there is rely upon a court to and use written the truth tion that affiant swore to the represented had statement which he to contained the statements fulness be under oath which he knew but Abraham, therein, United 347 States charged not, lawfully he could not be un- 1965); (7 F.2d 397 Cir. Congress statute; der did the nor intend (7 Lynch, States v. purpose that the whole thrust and the cert, Cir.), denied, 70 S.Ct. 339 U.S. nugatory rendered could be statute Hardy (1950); L.Ed. simple exрedient. fact so States, (5 22 F.2d 153 an unrelated another has in present In the were case the documents proscribed use “a false or statute they were found the courts to which declaration, affidavit, certifi- fraudulent they affidavits, presented be and were to cate, statement, voucher, paper or unquestionably to effective show writing purporting such” con- be complied App.U.S.C. 520(1) had been § cerning representations in certain made judgment with a default and obtain applications, insurance 38 U.S.C. § against certain in those defendants only by use creates no inference that They effective therefore courts. were wording could Kaufman have of similar perpetrating precise in acts chargeable App. been under 50 § U.S.C. (2) designed pre 520(1) and were § (2). former statute was 520(1) and they vent. We conclude therefore entirely purpose for an different enacted purpose of for the were affidavits bearing on and has no the construction given the latter. appellant concedes appellant has cited certain cases representing in affidavits were false proposition that a state- written persons he had talked certain about with actually in order must be sworn ment military truth he their status when in affidavit, qualify those as not, that, presumably ‍‌​‌​‌‌‌‌‌​​‌​​​​‌‌​​‌‌​‌​‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‍if had the af They are have no here. cases relevance respects in been had other all fidavits distinguishable present case be- from true, properly found would have been he pro- they guilty. But, points out, there were with cause concerned value bative of a written anyone. statement un- to deceive attempted Kaufman not; opposed der oath as to onе that portray unsophisticated himself as an employee statements at issue not in the merely doing were who was what he accepted they, form of nor did affidavits signed was told to do when he af- faces, represent on their had fidavits. At conclusion of the direct example, Bradley been in sworn to. For examination, thereforе, Kaufman’s States, 657, 659, 1 knowledge v. United n. and intent were crucial issues (9 rev’d, 348 U.S. in the case. (1955), the court L.Ed. During cross-examination, Kaufman decided that a statement not stated expenses, that he had incurred evidentiary given under oath had less although infrequently, for witness and hearing than value a Selective Service filing serving pa- fees the course of had, an affidavit in Wil- pers, for which he had been reimbursed. County Com’rs, liams Pierce Bd. of When asked whether he had claimed de- (9 1959), the court 267 F.2d 866 Cir. ductions for expenses such business opinion person should that a returns, his tax he said that he “didn’t pawperis proceed allowed in forma so,” explained think that the returns pov- if he swore to the fact of his prepared by were a friend who “deducted erty. course, any case, Of from things supposed he was to deduct.” probative view, point value a written point, At the Government offered purporting made to have been Kaufman’s 1968 tax return anas exhibit oath, fact, under not to in but sworn objected. and defense counsel The Gov- worth nо more an unsworn state- than justified inquiry ernment further into ment. upon the return an as attack the de- credibility fendant’s and to show “what present case, however, The concerns papers kind of documents and this wit- forbidding construction of a statute signature willing put ness is on.” his ap false and fraudulent affidavits as judge The admitted and the the evidence аffidavit, plied to a situation in which briefly questioned Kaufman Government though usually accepted form and he about a deduction sizeable business regular face, represented its on filing fees.” had taken for and “witness had fact it had been sworn to when in signing tax The admitted defendant part parcel This and of the not. was return the deduction and conceded very at falsification and fraud which erroneous, explained had that he was but adopt the was directed. To statute given friend to the return to a trusted theory appellant’s strict construction prepare the re- and had never examined place above common technicalities filed. turn before was unnеcessarily sense and frustrate carrying plain intent of Con out of the The defendant contends that gress. States, 349 U.S. Bell v. United this cross-examination as to another 81, 83-84, 620, 99 75 S.Ct. L.Ed. improper criminal act requires and (1955). disagree. reversal. We evidence appellant’s second claim is that a false statement in the tax return was the trial permitting proper court erred in the well-established rule Government including acts, introduce evidence of a that “evidence of similar prior crime crimes, he had committed but for other is admissible when it had not substantially he been purpose Dur- relevant for other convicted. ing the direct merely examination of the defend- than to show defendаnt’s criminal ant, Kaufman e., admitted disposition,” that he had character or i. in this signed non-military case, knowledge affidavits and intent. show that he 114, knew that Deaton, stated that the United States 381 F.2d v. party military service, (2 was not See e. steadfastly knowing he (2 denied Keilly, 1285, States 445 F.2d Johnson, statements 1971); were false or that he intended Cir. United States 280, (2 1967); cumulative; 382 F.2d 281 Cir. no other evidence 427, Knohl, 438-439 tax fraud States 379 F.2d or other criminal conduct cert, Cir.), denied, admitted, (2 Byrd, 389 U.S. was either offered see or (1967); Unit- supra, S.Ct. 19 L.Ed.2d 465 352 F.2d at nor did the Gov- (2 Ross, overemphasize ed 321 F.2d ernment States v. the defendant’s cert, prior Cir.), denied, 375 U.S. misdeed. trial court did not also, deciding (1963). 11 L.Ed.2d See abuse its discretion in probative McCormick, at 329 value of the оut- Evidence evidence weighed prejudicial the defendant its character. Evidence that relating signed legal had false personal documents heavily The defendant relies relevant own his affairs Semensohn, United States v. testimony he char- rebut his (2 which was reversed unwitting em- acterized himself as ployee prosecutor because the asked the defend beguiled superiors un- into his “Now, you ant on cross-examination: knowingly signing See false affidavits. grand larceny, were convicted of weren’t Ross, supra,, F.2d at 67. you?” when, ‍‌​‌​‌‌‌‌‌​​‌​​​​‌‌​​‌‌​‌​‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‍fact, pleaded had case, a “similar tax fraud constituted guilty grand larceny, attempted both consist- act.” basic element of yet sentenced, had not been and could knowing them ed of documents guilty plea. In seek his still to withdraw false contain statements. charged that case defendant military service, with evasion of As the or circumstances nature ques purpose prosecutor’s activity, the sole the evidence of other criminal credibility by strong though relevant, may very place tion was to attack his alleged showing bad emphasis his character. The on the nature of ac evil relationship suggest larceny had persuasively conviction that he cused charge similarity draft exactly person with the the kind of who would credibility charged, Impeachment of evasion. commit the offense the trial weigh рast offenses can factors to evidence of criminal court must the relevant by proof possible preju only of a conviction be shown the amount of determine involving may felony rule moral involved. The of a or crimes dice Provoo, supra, at apply turpitude. is evi 215 F.2d court must which the Palumbo, 536; un F.2d of is admissible 401 dence anothеr crime United States v. prejudice 270, (2 1968). out the likelihood of 273 less Cir. Deaton, weighs probative value. See its supra, holding evidence 381 F.2d 117. The at at is But the in Semensohn damaging here, evidentiary defend to is while not issue determinative of the case, inflammatory. Although present ant’s was not in of sue the case. improper person concerning fering claims an fact that a Kauf the evidence is not his return partly deduction in income tax re of false tax man’s turn, his ordinarily the sort of misconduct the claimed that the Government passions of the purpose impeach arouses the irrational credi of it to his was Provoo, jury, clearly 215 bility, for not United States v. admissible cf. Moreovеr, 531, (2 1954). purpose; also F.2d 537 Cir. but Government the the evi kind docu Government did not offer it “to of the offered show what willing papers main an issue not dence its case on ments and witness this yet by defendant, signature Though pressed in- put see United to his on.” 570, (2 Byrd, artistically phrased, this sufficient States v. F.2d 575 352 Johnson, supra, past show act to 382 a similar See also to claim it as Cir. knowledge contrary, de trial at On the intent. F.2d through testimony permitted fendant himself his admitted the exhibit it. related to issue his of mind the crucial which made state cross-examination ground its Ross, supra, for case, proper F.2d in the see 321 As there admissibility, Furthermore, there is error. at evidence 312 legislative judgments conviction af- Given are the-absence history covering precisely firmed. issue 3 case, only spec raised this we can FEINBERG, Judge (dissent- Circuit ulate about what would have

ing) : question. had it done focused on Perhaps Congress used more would have Relief The Soldiers’ Sailors’ Civil expansive language as it has in other perhaps pre Act states with unfortunate statutes, 787, g., U.S.C. e. 38 § cision it shаll be a misdemeanor for proscribes “a false or fraudulent affi any person “make or use an affidavit * * * ivriting purporting * * davit * or required this section added.) per * (Emphasis be such.” * Or knowing it false 50 to be haps, suggests, Congress as defendant added). 520(2) (Emphasis App. U.S.C. only prohibit have been content holding I the word dissent from “affidavits,” statements, false sworn оr “affidavit,” appearing in this criminal leaving have conduct such as here we statute, un to mean an can construed laws, be covered state criminal e. sworn statement. one looks Whether (McKin 135-a N.Y. Law § Executive cases,2 to the dictionaries1 or ney’s Consol.Laws, c. oath is an essential characteristic punishes performing their notaries should not make a affidavit. While we however, role, fraudulently. duties Our dictionary, out of the see Cabell fortress may is not to determine which course Cir.) (2d Markham, 148 F.2d appealed Congress, most but (L. aff’d, Hand, J.), 326 U.S. determine statute as whether (1945), neither S.Ct. 90 L.Ed. fairly encompass can be said to ignore should the terms a criminal we McBoyle States, case. Cf. uphold Kauf To defendant Leo statute. 25, 27, 75 L.Ed. 816 must conviction we redraft man’s reluctantly conclude that I making not false statute forbid cannot. affidavit, also a docu of an but To purporting Government, happily ment an affidavit. to be beyond my pow so, opinion, majority upon ‍‌​‌​‌‌‌‌‌​​‌​​​​‌‌​​‌‌​‌​‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‍our do opinion, relies (2d Wiseman, ers. States v. writing (9th esp. missioners, 1. A made sworn F.2d 1959) ; Broadcasting under oath or on affirmation before an Co. v. Johnston magistrate officer; spe- FCC, U.S.App.D.C. 40, authorized (1949) ; a statement under oath made Ins. such Farm Bureau Mut. Co. cif: ex parte (W.D. F.Supp. 383, Hammer, cross-examination. and without Va.), grounds, Third New International Dic- Webster’s 177 F.2d rev’d on other cert, tionary (1961). (4th denied, 1949), Bever printed age Co., or A written or declaration Ins. Farm Bureau Mut. facts, voluntarily, made statement 94 L.Ed. 70 S.Ct. the oath or affirma- and confirmed making it, party be- tion of the taken having authority to ad- fore an officer 3. In 1960 amended the statute ... minister oath. A state- such provide that, permits, law where state writing, reduced ment or declaration to be a сertified true some and sworn to or affirmed before penalty perjury may be filed authority has to administer officer who with the in lieu of an affidavit. an oath or affirmation. argues Defendant that this amendment Dictionary (4th 1957). Law ed. Black’s “made clearer word it even Dictionary (3d also Ballentine’s Law See given ‘affidavit’ its normal must be mean- ed. rеquires ing, and the crime it defines perjury Appellant’s be committed.” legislative history States, See, 2. e. Robbins v. Brief at This 10. (9th 1965) support ; lends a to defendant’s measure of County position. Williams v. Pierce Bd. of Com- proposition that novel for the “estopped” de- from Kaufman should be COMPANY, RIBLET TRAMWAY Incor- nying be- made valid affidavits that he porated, Plaintiff-Appellee, knowing the doc- he admitted cause signed purported true uments he CORPORATION, MONTE VERDE prose- That involved case affidavits. Angel Corporation, Fire Ski 242, which cution under 18 U.S.C. § Defendants-Appellants. states: No. 71-1129. any Whoever, law under color of Appeals, United States Court of * * * subjects any willfully in- Tenth Circuit. * * * any to the hibitant of State Jan. rights, deprivation privileges, Rehearing 2, 1972. Denied Feb. protected or or immunities secured or the Constitution laws

States, punishments, or to different

pains, penalties, of such on account or being alien, by rea- or

inhabitant color, race, pre- than are

son of his citizens, punishment of ‍‌​‌​‌‌‌‌‌​​‌​​​​‌‌​​‌‌​‌​‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‍scribed for the $1,000 or not than

shall be fined more year imprisoned not more than one charged that in Wiseman

The indictment deprived persons

defendants had various rights by routinely of their of service.”

blank and false “affidavits although the docu- there ‍‌​‌​‌‌‌‌‌​​‌​​​​‌‌​​‌‌​‌​‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‍noted that We “affidavits,” may ments been

presumably oath admin- because no

istered, estopped from defendants were

claiming variance existed between that a indictment.

the facts way indicated at n. We in applicable estoppel concept to a where, statutory here, lan- as

case making

guage provides of an key the crime. is a element of

affidavit

Accordingly, con- I that the conclude But, should reversed.

viction below theory tried the case was

since element not an essential

that an oath was charged Sol- under the offenses Act,4 I Relief

diers’ and Sailors’ Civil indict- dismissal of

would not direct open possibility

ment but leave opin- with

of a trial consistent new

ion. of the of- an essential element defendant’s oath was trial court refused Since finding fense, jury charged the issue. was made on request that an

Case Details

Case Name: United States v. Leo Kaufman

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 3, 1971

Citation: 453 F.2d 306

Docket Number: 111, Docket 71-1423

Court Abbreviation: 2d Cir.