United States v. Rubinstein

al. et STATES v. RUBINSTEIN UNITED 20802. Docket No. Circuit. Appeals, Second

Circuit Court 5, 1948. Feb. April Denied Certiorari

Writ of S.Ct. 791.

See 68

CHASE, Judge, dissenting part. Wolchok, B.

Edwin of New York City, Schofield, Philadelphia, and Lemuel B. Pa., Serge Rubinstein, appellant. M. Wolf, George City, New York McBride, Philadelphia, D. Pa., Thomas appellant. Foster, Allen Gordon provisions Atty., by submitting to McGohey, U. S. F. X. the statute John Chief Saypol, it was City H. in which (Irving New York draft board an affidavit Brown Atty., Keith stated in his “functions” Asst. U. S. substance that all of Schachner, Attys., “success- Asst. S. were of a that U. such character Bruno counsel), appellee. operations for of Pan- City, New York ful continuance” of the Co., Refining handle Mid- Producing and CHASE, SWAN, HAND, and Before L. Co., Oil Steel way and Panhandle Victory Judges. Circuit Co., depended upon Products his "remain- companies; with” that and CHASE, Judge. replace impossible would him “with- be by a was indicted Appellant Rubinstein drilling pro- out seriously impairing the District grand jury Southern gram hampering seriously and otherwise violations separate New York for five companies. the activities of” those Training Serv and Sec. 11 of the Selective ap- charged count two third of 1940.1 The relevant ice Act pellants conspired and others unknown person “Any who reads as follows: statute do the charged unlawful acts in the second make, a or be party shall knowingly count. of, certi false or making any statement or li fitness unfitness as to or ficate alleged appellant fourth count nonliability or of himself or ability Hart, Rubinstein and one who indicted was provi person for service under the other and appealed, convicted but know- has rules, regulations, or Act, or sions of this made, ingly parties and were making, ** * thereto, pursuant directions made false 12, statements on or about October * * person who shall nonliability as to the of Rubinstein so, shall, upon conspire conviction to do provisions under hav court of district by statute submitting to his draft board thereof, punished by im ing jurisdiction be on or about October 1943 an affidavit years or prisonment than for not more five falsely stating that he was executive as- $10,000, by than both a of not more fine president sistant to Taylorcraft Avi- imprisonment, such fine and Corporation; ation had employed been so August charged on in the charge The first indictment and was in count made, financial and in violation of the that Rubinstein matters administrative corporation. statements to his above false nonliability serv- draft board alleged fifth count that Rubinstein application Febru- support of ice in an Hart, unknown, and and conspired others class 1943 for re-classification from ary to do charged the unlawful acts III-B, e., dependency I-A class i. fourth count. allegedly deferment. The Rubinstein and Foster were con- both no assets from in effect that by victed jury. The former was sen- dependents support he could imprisonment tenced on each count to forces; inducted into armed two and years one-half and pay a fine of live on such allot- $10,000, imprisonment sentences to made; government as the and concurrently. run The latter was sen- capital resources to exhausted he had imprisonment tenced on each count to and years pay expenses, which in im- $5000, imprisonment fined sentences be- mediately preceding had exceeded ing suspended. come. alleged count that Rubin- Each of The second judg- attacks the Foster, Gordon grounds Allen the other ment several stein and which will date, February same appellant, had on stated as reached. Most apply to both but made, 2, 1943,knowingly parties and to Rubinstein will one indicated. making, following of false the The of the facts will suffice, ample former’s under the the record contains evi- U.S.C.A.Appendix,

1 54 Stat. at to also submitted Foster’s false aCKtttnenl case to take the dence an support the verdict. deferment. As result successful an was active hearing II-B he was reclassified opera engaged in financial business man appeal taken board. On magnitude with'offices tions of considerable Appeal government to was Board he City of New St. in No. Wall 7,May I-A. On reclassified June Portugal re He a national York. that he would was advised country with his wife siding in this in July and fill form inducted asked to out within the dependents. He had other regular personal history him, to which age limits required an alien. He so Training and provisions of the Selective and therein informed the board U.S.C.A.Appendix, 301 Act, 50 § Service proceedings deport commenced to military service seq., for liable et him as an alien who coun had entered this and he forces of the United States armed try illegally. appeal made a fruitless He complied with February had before to his I-A classifica President to original requirements. His statutory changed, being tion af that classification 3, 1942 on I-H classification was March September 7th, firmed 1943. on this on But III-A, deferment. changed dependency date, happened, same board his local November This classification was on government reclassified II-B him and the changed II-B, occupational an de again appealed. brought appeal This about board Thereafter his local draft ferment. a I-A classification for him on October changed his classification temporarily report and he in ordered to appear hearing him and notified I-A duction on October 20th. appeared February 1943. then on Pie daunted, nothing Apparently containing the affidavits and submitted requested then a rehearing which was depend as to written both granted by hearing the local and that ents with the com connection was set for October 12th. On date panies count which the second named appeared and submitted a false affidavit justifiably found have been showing employment by Taylorcraft gist false. The state Corporation Aviation on a service selective concerning dependents is in the signed form known by as 42A following quotation from his affidavit: defendant represented Hart. This falsely affidavit inducted, I “Should none the afore the time of employment and the need persons, wife, family, my including said her corporation of that for his work on be- its my will my mother and aunt receive not, however, half. His local board did except income source such sums from change his classification from I-A but or- may receive from the United States they report dered him to for induction on No- I assets from Government. have no which 16, 1943, 1943. On November vember provide I could otherwise he filed with board what known people.” He closed this affidavit 301 in form which he exemp- words, my with these occupa “In view tion from as a neutral alien. He status, tional and respectfully I dependency had at all times been to this ex- entitled request that I be reclassified III-B.” This emption upon request made in accordance request a dependency was a for’ with Haug, appeared when at the hearing but Cir., granted him, 150 F.2d and it was February 1943 and submitted the affi being, provided, condition the statute orally that he davit he stated desired could not thereafter become an II-B, an reclassified defer American citizen.3 ment, though he did not withdraw his writ appellants that, the III-B Both insist classification. even assum- ten He greator, paid being and Ms mother was At time he had assets which year annuity admittedly worth in three $1500 excess of a Swedish seventy-six company. dollars, insurance thousand hundred though U.S.C.A.Appendix, 303(a). he claimed his liabilities much coverage, any, made The is found ing arguendo false, substantive deals with false they committed no was knowingly, liability or nonliabil- conspiracy regarding consequently no offense and only ity. plan Act general of 1940 covers proved, the statute because was, assert, or unfitness as the create to fitness false statements as out which registrants statute a class of for service. liability in the first made classifications were be made They say statements were that their “defer- in accord- obtaining local draft boards merely purposes instance by at rules and within the statute statute and the ance ment” and thus regulations duly promulgated thereunder. distinguish v. United They all. Kreibich were, large part States, holding registrants 261 F. These least, discharged clas- obtain a not permanently deferred statements made liability given non- asserting were statements over-all sification service, ground classifications determined order liability 1917,4 con- inducted. Draft Act of there Selective strued, permanently practical unfit from the Act were in effect different right discharged, Under as of are extent: was Rubinstein And course made finally 1917 for service was himself when an ex- liability Act classified as dependent upon empt assume, the action of neutral alien. But will determining present purposes, appellants draft boards in financial that the status, physical premise condition right are in their a deferment that liability discharge while made serv- liability the 1940Act is not a from a of pro- wholly dependent upon registrant ice for service and indeed Con- statutory gress power recognized visions. left boards without this distinction so far as draft It liability, giv- parts Act, discharge registrant a from certain 50 g., of e. U.S.C.A. 305, ing power Appendix, only them to defer the concerned. Even § so, something duction of liable deferment is plainly date service. regards entry right registrant’s

But if are affects the time of the as and, give sense, such in broader the construction would have us Act, loophole or Congress nonliability the 1940 left a in it liability enabling registrants given time dependent upon and those who aided was made or whether did have a them to im- he not deferred make false statements with classification. There is no reason punity requests to be- in de- of a Congress the words “liabil- lieve used ferred classification. nonliability” ity in the or criminal section Though criminal statutes are only to refer to the over-all Act strictly, be construed does not mean liability registrant. a or of that the must be construction as narrow as may These words construed to include possible. Giles, v. United States 300 U.S. opposite liability or the a registrant of 41, 340, 48, 493; 81 57 S.Ct. L.Ed. United from in accordance time with Corbett, 242, 233, 215 States v. U.S. 30 what, classification under the law. That is 81, 54 S.Ct. L.Ed. As was said opinion, Congress clearly in our intended. Hartwell, 385, United v. 6 18 Wall. Peskoe, Cir., Cf. 3 United States v. 157 830, L.Ed. “The rule strict construction [of 935, denied, 824, F.2d certiorari 330 U.S. penal ap does not exclude the 865, laws] denied, rehearing 67 S.Ct. 330 U.S. plication common sense to terms 856, 1080; Rooth, 67 S.Ct. United Act, use avoid of in the order to Cir., 2 159 F.2d 659. This section absurdity Legislature ought signifi- follows the 1917Act without statute presumed to have changes. Though intended.” As cant verbal nothing exempt, only defer, there boards could physical, registrants Act, do with under the made which 1940 Lehr had men v. Cir., tal, States, 5 unfitness, or 139 or moral fitness United F.2d may put cf. United States ex readily statute aside. rel. Aberasturi. 4 note. 40 Stat. 50 U.S.C.A. § Service and Sec. 611.12 Selective Cain, 2 F.2d v. moreover, indicate, “partial Regulations selection no different from the as “residing Act. words in the United States” made under service” military only living hav provided, as far as used in the refer Act The Act place temporary other President abode that: relevant “The presently discharge Thus, country.6 Rubin exclude or even hereby wise authorized to immigra toor stein draft were nonresident under from said selective laws, illegally, having tion Wer partial military service entered draft for provided, States, Cir., in this Act blow v. F.2d those liable draft as classes,” among following here within the “residing” could still be dependents and Training meaning were those the Selective 4. The industries. Stat. that the essential Service Act. It is fundamental penal sec- “liability” used in the may different con word word “residence” Act, included, Sec. there- and situa tion of the notations different statutes fore, liability "partial military Restatement, service.” Laws tions. See Conflict argument really appellants’ (1934), it be (e). comes comment Even if Thus the Sec. that, position however, clearly assumed, untenable nonresident down Congress alien, word used the “defer- Selective because phrase Training Act of in the new Act and and Service ment” changed prop “partial military as to his service” fact classification, were, the er criminal section of statements which substance changing held, form of the we now liability statute thus think, however, nonliability The of making a whole. We for service. statute punish making to the these Congress constituted crime and intended statements is procure, immaterial whether could board to or to aid the false statements of required to him make procuring, as state- in deferment another Kapp, v. at all. United States 302 U.S. for respecting made ments 217, 218, 205; Kay substantially 82 L.Ed. S.Ct. language of service and used 6, 7, States, v. import United 303 U.S. S.Ct. accomplish purpose this to the same Meyer, v. 82 L.Ed. United previously States knew had been construed 652, 655; supra. v. 140 F.2d States case, United to in Kreibich do so the Barra, Cir., 149 F.2d 490. Conse argument that Rubinstein charge quently requests to to effect “residing in United States” was not in United Rubinstein’s States residence phrase meaning of Sec. within properly was a controversial issue were Act,5 is without merit. 3(a) of also denied. April fact that on It based on the just warrant What has on a of de been said in effect 1943 he was arrested disposes portation having for the United also the contention that entered because Rubinstein was a neutral thereafter released on alien who could and States illegally time, at pending termination of the de have and did as a last finally bail proceedings resort, portation exemption have not even obtain from service on statements, completed ground, so as this record false yet far his and others, charge unproved, while seeking still he was But de shows. the mere registrant unlawfully were entered did not make status as not with ferred that he subject Op.Att’y He was Gen. 504 in statute. a nonresident. him 6 provided amended, See. 611.11 Selective This section Service “ * * * every Regulations provides “Every male citizen of the that: male every States, other male who has declared his and alien intention United States, residing person a citizen of the United the United become States” ages eighteen residing and within the United between States iswho reg meaning forty-five the Act. the time fixed for within Rubin at training istration, told draft that he be liable and stein shall declaration of intention to land naval forces be filed an American citizen. U.S.C.A. come United 303(a). Appendix, § exemption used enable men to selected until unless he regard needs armed forces with due registrant liable he was a and while employers, dependents, and his non- of their their service, as to statements made public. The makers were differently liability may be treated liability sub- to unless the statements same criminal respecting the like willfully, e., were i. unless they Cf. were made registrant. ject any other as to page intentionally, or unless Peskoe, supra, 157 F.2d think that “knowingly” We were false. for a have been contended It is also it is sufficient this within requests statements made honestly it to be believe maker did its were not false object prevent the mak- was to true. The they meaning because statutory within the ing of classifications were be, but ex were, necessity had to and of way law. accordance need of pressions opinion as to the sought object to be attained their employers his services and was to crime if statements fur- make it a disrupting replace him without inability to boards, pur- whether draft nished engaged. the war work in which present facts or matters porting to concern statements, however, seem have re opinion only, pertaining to or whether employers’ employment lated to his present future, past, were not be- services as for his need by those them. Ow- lieved who made true appear be state thus were made and very magnitude of draft present as those facts so far facts task, impossible generally boards’ it was definitely But are ascertainable. we independ- thorough to make a them Even rest our here. content decision investigation ent facts. Without the expressions if these statements requirement that now hold the statute matters opinion, pertaining to future imposed, administration of the Act would implied only, making of that the them bur- have been difficult unduly overly If makers believed them true. In this view densome. of the statute the entertained, honestly there belief were not charge of the court was correct and trial fore, misrepre statements contained a the judgment on verdict unassailable the the present Cf. United sentation of fact. upon To that ground. the extent 349, Comyns, 248 U.S. 39 S.Ct. v. States, Chaplin App.D.C. 81 U.S. v. United States, 98, 287; 63 L.Ed. Durland v. United 80, 697, 828, 168 A.L.R. may 157 F.2d be 709; 306, 508, 161 40 U.S. 16 S.Ct. L.Ed. herewith, in conflict follow it. decline to Uram, Cir., 2 148 F.2d United States v. 187; Rowe, Cir., upon conspiracy 2 States v. 56 F.2d The the United attack 747; denied, 554, argument 286 52 certiorari U.S. counts is twofold. As to the that 1289; Riper conspiracy S.Ct. 76 L.Ed. Van v. was criminal because neither States, Cir., 2 13 F.2d certiora acts if United it concerned done were ri sub nom. Ackerson v. United offenses no more need be said. denied substantive States, con 273 U.S. 47 S.Ct. 71 L.Ed. But has been contended that the it 848; Merchandising conspiracy on counts Knickerbocker Co. must be v. victions the States, Cir., 544; authority 13 F.2d certi reversed the our decision in United on Zeuli, Cir., denied, orari 273 U.S. 47 S.Ct. States v. 71 United F.2d that, Irish v. the L.Ed. also Central Ver We held where concert of see there Ry., necessary is to mont and two or commit F.2d cases more crime, agreement cited. statements to the substantive to therein were be they “knowingly” perti- charge, so far is now were within the Tlie false interposed knowingly nent, man the no ob- “A defendants read: makes represents jection Though they on he this score. did statement when false request the “false state- which at the he court define that knows true proposed ment,” definition lo a material fact.” their went untrue as While only point specifically charge that did not to the trial court expressions opinion, they if it found the statements were that honestly entertained, “false” within the Act. to have been sep- is obligations. current The distinction punishable is commit that crime in ac- established, well in the law and conspiracy. that decision But both arately aas counting, insolvency in bank- is self between It by applicable here. is no means sense, ruptcy, insolvency equity, and appellants could that either evident that, analysis, and is in the final obvious false ability support dependents other one’s his without the connivance make phrased by ability meet cur- determined anyone The statute else. per- obligations, not, alternative; rent would “Any concerns Rubinstein in the make, or be have had draft board and son who shall believe, of, by any given statement us making any false net worth party to the ”* indict- time. that It is immaterial making charged defendants ment Finally appellant contends making parties being and inability made as statements he to his statements. support dependents if were inducted were immaterial because orally he stated mentioned par with the last On hearing February slight point is another needs e., put II-B, wanted i. to .ob- class charged Although it notice. was not tain an deferment. rec- false indictment that - ord does show that then stated work be respect amount of war placed board that “he corporations con by various done back 2-B” there -is evidence other cerned, evidence show than his support affidavit in aof III-B others, possibly in respect, in that request classification his written prosecution. by As introduced one at the end of document to show of mind of the intent or state that he was then seeking My one. broth- issue, evidence was admissible such that, light ers do not believe of his purposes showing that intent. II-B, for classification in the evi- Shurtleff, Cir., F.2d dence was sufficient to his convic- 944.8 and, tion therefore, on the first count the first sentence judgment and judgment on that count must be reversed attacked count is further opinion the reasons stated in the rever seeks that he To the extent alone. Judge HAND. ground sal however, agree, I af- cannot and would the evi overwhelmed he is not false firm to because I think the count one upon evi is based His contention dence. application continuing affidavit was itself a despite large tending to show dence III-B, in class which him had liabilities assets he jury justified treating, in so notwith- standpoint. sheet a balance insolvent from II-B standing what he said about a class cer jury is that the answer to this The situation, I deferment. The read the evidence, to take his tainly not have did consequences record, legal and the its face equivocal, at was at best n follows: in to show liabilities relied value. The request He did withdraw written his mainly contin future and solvency were III-B, dependency for classification in de- protection afforded to them the gent. As ferment, remained on file and that with Relief and Sailors’ Civil by the Soldiers’ together with the state- U.S.C.A.Ap 54 Stat. ofAct which, believed, might ments if seq., insulated 501 et pendix, give him that duced it to classification if want. balance sheet dependents from A his merely II-B He classification were denied. particularly here one like moreover— preference expressed a II-B classi- contin upon, as it was with loaded relied little, affidavit before any, reliable fication. left the board gives if His gent liabilities— which was bound to his evidence on it ability meet act as to one’s indication weight request this of numbers was it- limit this sheer so There was- imposition upon though evidence, self an court. requests By charge. separate II-B grant fourth him the and fifth counts affirmed. event that it did not judgment im- is reversed. 1940 Act on the first count classification. Sec. of the “person any poses penalties upon criminal HAND, Judge (concurring). L. duty charged provided as herein with provisions of carrying any out of of ex I concur Judge SWAN and Act, regulations made rules or cept did that the evidence think we thereunder, who shall given or directions support count. The first on the verdict perform such neglect to fail or sub alleged that Rubinstein indictment * * * mak- duty, or be a party 2, 1943, February mitted affidavit of * * * improper, incor- ing, any request reclassifica support “in of his ” * * * * * * rect classification IA to classification tion from classification members the local board 3B”; that he no testimóny find we can duty charged out the carrying only part so. The of the record did provisions required the of the Act. That it, prosecution says proved quote appellant all consideration evidence that he margin,1 and not show it does placed before them which was relevant support any of” re used affidavit “in proper classification. quest Nor was this defect mere whatever. duty The board was not of its relieved ly between indictment and a variance give applicant such a for deferment proof; at all was com for no crime expression prefer- classification mitted, part of his so far concerned proper ence for another. What was lan of the affidavit. It is true that one to which he was under the law “knowingly entitled make guage statute is: * * * * * * upon presented accepted the facts any false statement * lawfully correct. He could not of himself be denied * * * service”; deferment, all II-B but that does for a refused, regis classification on which the until the state- a statement include it, trant, presented very filing de moment rely; and duly other does not mean deferred classification had clares that paraphrase not an unfair we think it long considered. So as he left his affidavit said to that Rubinstein testimony file seems for the to me that was I to what attention upon pay evidence board: “Don’t all the determine dependency other about the have said whether he made the statements it con- me; upon relying people upon I am tained to action influence the my part of affidavit.” right board in passing to defer- ment. though pre board, A local even registrant was second, third, evidence that a sented with judgment on the

ceived a notice of reclassification when he handed month stance months he received a bonus binstein to be Class 2-B and was ^[*] ed panies No. “Q. Didn’t he “Q. “Q. up “Q. owned What What these documents placed entirely to the board that Is that plus say? 15-1? A. Yes. paid no ^[*] i'fi happened; bonus; back Class stock president devoted A. a say up salary He stated that he re- Mr. time when ^[*] * these documents? 2-B. He and he what did Mr. Ru- words tírese evidence, evening three $1,300 per ^[*] * companies, war or in sub- past $6,000. advised effort, hand- from com- say six * what he volved classification cupational spect not? That call rect. dix. 2 “Q. “Q. And “Q. Not “Q. * ask for classification By it, written By So A. Yes. yes. a correct.” consideration was there obviously Title 50 U.S.C.A. War your answer, assets involved consideration deferment 3-A*; paper; in 2-B? A. That witness 2-B right? that did correct? matters dependents, meant thus classification Yes, you nothing continuance A. As differ 3-B. alone? A. night A. is cor- Appen of oc- Yes. to the in re- I mean re- it legally deferment, was not entitled to claim him,

bound to defer interest public No deferment. who did deferring registrants

served Conceivably Con- ask be deferred. it was neces-

gress might thought that protect war to

sary to the success of the whose interests defer-

possible; that been enacted pri- personal a would not ment There not the

vilege duty. a kind ground so to construe statute:

least fit expected all who

the law to serve wer.e boards

and did not claim deferment. The unfitted on their own initiative willing registrants who were

learn whether serve, so. ought not to be allowed to do privilege like being

Deferment other

personal privilege, holder its abandoned it; and, although in failing assert might bar Rubinstein indeed case at laying

have been foundation for a claim, doing he was not indicted for future

so, and could not foundation become

crime unless later he built the nec- attempt

essary superstructure use

it. TELEGRAPH CO. v. UNION

WESTERN & HANSEN ROWLAND

CORPORATION. 11689.

No. Appeals, Ninth Circuit. Court

Feb.

Case Details

Case Name: United States v. Rubinstein

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 5, 1948

Citation: 166 F.2d 249

Docket Number: 125, Docket 20802

Court Abbreviation: 2d Cir.