U.S. v. Matzkin

Citation14 F.3d 1014
Decision Date01 February 1994
Docket NumberNo. 93-5246,93-5246
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Sheldon I. MATZKIN, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: John DeWitt Cline, Williams & Connolly, Washington, DC, for Appellant. Jack I. Hanly, Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee. ON BRIEF: Thomas R. Dyson, Williams & Connolly, Washington, DC, for Appellant. Kenneth E. Melson, United States Attorney, Joseph J. Aronica, Assistant United States Attorney, Office of the United States Attorney, Alexandria, VA, for Appellee.

Before HAMILTON, Circuit Judge, CHAPMAN, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

CHAPMAN, Senior Circuit Judge:

Following a trial by jury, Sheldon I. Matzkin was convicted on Count 1 of a four-count indictment which charged him with (Count 1) conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371, (Counts 2 and 3) with bribery of an employee of the Department of the Navy in violation of 18 U.S.C. Sec. 201(b), and (Count 4) with converting or conveying without authority a thing of value of the United States in violation of 18 U.S.C. Secs. 641 and 642. He appeals his conviction and sentence presenting four issues for review: (1) Was it plain error for the trial court not to include a jury instruction on the statute of limitations in connection with Count 1; (2) was his trial counsel ineffective because he did not request a statute of limitations instruction; (3) was the conversion object (pricing information submitted by a potential contractor) a thing of value and the property of the United States as required by 18 U.S.C. Sec. 641; and (4) was the district court clearly erroneous when it found at sentencing that Stuart Berlin was a high level, sensitive person under United States Sentencing Guideline Sec. 2C1.1(b)(2)(B). We find no merit in any of the appellant's exceptions, and we affirm the conviction and the sentence.

I.

Appellant Matzkin, an attorney and consultant practicing in the Washington, D.C. area, had certain defense contractors among his clients, including the NAVCOM division of Gould, Inc. and the Sierra Research Division of LTV Corporation. These two clients paid Matzkin a monthly retainer, and he also billed them separately for claims work he performed for them from time to time. Appellant obtained information and assistance from his contact at the Navy Department, one Stuart Berlin, who was a supervisory engineer and branch head with responsibility for the technical aspects of major procurements. Berlin's position made it possible for him to obtain and pass to Matzkin information about the scheduling, quality and bidding related to procurements by the Navy from defense contractors, such as LTV and Gould. This information was not available to the public or to prospective contractors. Having access to this information in advance gave Matzkin's clients an advantage in preparing proposals and bids for future work with the Navy.

Beginning in late 1978 or early 1979, Matzkin began paying Berlin $200 per month for the information and assistance Berlin provided on Navy procurements in which Matzkin's clients were interested. These payments were made from the retainers Matzkin received from his clients, and the delivery of the money was made by Matzkin to Berlin at various places they arranged to meet including restaurants, coffee shops and appellant's automobile. These monthly payments to Berlin were increased to $1,000 in 1986 when he asked for additional sums for his assistance relating to the SRQ-4 project, which was a shipboard radar terminal set that received information from helicopters of enemy positions. This increase in payments to Berlin required Matzkin to have his monthly retainers increased by his clients. Berlin provided valuable information as to the bid proposals of competitors in the SRQ-4 procurement and also whether the Navy would require best-and-final offers. Berlin also sat on the CARP (Contract Award Review Panel), which recommended that the contract for the SRQ-4 units go to Matzkin's client, Sierra.

Berlin testified that he and Matzkin were also involved in a Navy procurement for a tactical air navigation beacon, known as URN-25. This equipment was originally developed by Hoffman Electronics, which had been bought out by Gould, Inc. The Navy had been buying this equipment from Gould under "sole source contracts" so Gould had no competition in the supply of URN-25 and was anxious to keep this procurement as a "sole source contract." Berlin was the supervisor for the Navy engineers working on the URN-25 contract. He testified that he was paid by Matzkin over a number of years for information and assistance in maintaining these "sole source contracts" for Gould. Berlin also furnished Matzkin with bid information on a competitive procurement involving aircraft identification being sought by Gould, Inc. and a competitor, Hazeltine Corporation.

Berlin was arrested and entered a plea agreement with the government. He became a primary witness for the prosecution in the present case and testified in detail as to his dealings with Matzkin as well as the information he supplied to and the payments he received from Matzkin. The jury found appellant guilty of conspiracy under Count 1 of the indictment but acquitted him on the remaining counts. At sentencing, the court increased the appellant's offense level by eight under U.S.S.G. Sec. 2C1.1(b)(2)(B) because it found that Berlin had occupied a high level sensitive position within the meaning of the guideline.

II.

Appellant was convicted of conspiracy to defraud the United States in violation of 18 U.S.C. Sec. 371. This offense was charged in Count 1 of the indictment, which is dated October 14, 1992, and sets forth 26 overt acts alleged to have been committed by Matzkin or a co-conspirator in furtherance of the purpose of the conspiracy. Of these overt acts, ten were allegedly committed within five years of the date of the indictment, and therefore within the five year statute of limitations created by 18 U.S.C. Sec. 3282. Sixteen of the overt acts were allegedly committed prior to October 14, 1987 and are outside the statute.

In United States v. Head, 641 F.2d 174, 177 (4th Cir.1981), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983), we held that as a "general rule," in order to avoid the five year statute of limitations for conspiracies, the prosecution must prove an overt act in furtherance of the conspiracy committed within the limitations period. At trial, Matzkin's attorney did not request an instruction on Count 1 that the government was required to prove at least one overt act within the statute of limitations, and the trial court did not give such an instruction. The court did instruct that "at least one of the overt acts charged in the indictment at or about the time and place alleged, must be proved beyond a reasonable doubt as an essential element of the crime." Matzkin's attorney did not object to the lack of a statute of limitations instruction.

After conviction, Matzkin filed a motion for a new trial claiming (1) that the trial court committed plain error in failing to give a statute of limitations instruction on Count 1 and by instructing that the jury could convict on finding any one of the overt acts alleged, and (2) that his trial counsel was ineffective in failing to raise the statute of limitations issue by either submitting an appropriate instruction or by objecting to the court's failure to give a statute of limitations instruction. This motion was denied and Matzkin appeals.

A.

A claim of ineffective assistance of counsel should be raised by motion under 28 U.S.C. Sec. 2255 in the district court, and not on direct appeal, unless it "conclusively appears" from the record that the defense counsel did not provide effective representation. United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1703, 118 L.Ed.2d 412 (1992), United States v. Fisher, 477 F.2d 300, 302 (4th Cir.1973); United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir.1970).

The present record does not conclusively demonstrate ineffective assistance of counsel. Therefore, we do not now address this issue, which may be asserted in a Sec. 2255 habeas motion, if Matzkin desires.

B.

"The statute of limitations is a defense and must be asserted on the trial by the defendant in criminal cases." Biddinger v. Commissioner of Police, 245 U.S. 128, 135, 38 S.Ct. 41, 43, 62 L.Ed. 193 (1917). "The statute of limitations set forth in 18 U.S.C. Sec. 3282 is not jurisdictional. It is an affirmative defense that may be waived." United States v. Williams, 684 F.2d 296, 299 (4th Cir.1982) (citations omitted), cert. denied, 459 U.S. 1110, 103 S.Ct. 739, 74 L.Ed.2d 961 (1983). Because the defendant did not request the statute of limitations instruction, he seeks to avoid the consequences of waiver by claiming that the failure of his attorney to request such an instruction was a forfeiture under the recent opinion in United States v. Olano, --- U.S. ----, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), because his failure was not an intentional relinquishment of a known right; but was the failure to make the timely assertion of that right (to request the statute of limitations charge).

Olano addresses the discretion of a court of appeals to correct error under Rule 52(b) of the Federal Rules of Criminal Procedure, which states: "(b) Plain error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Olano held that under Rule 52(b) the appellate court has "a limited power to correct errors that were forfeited because not timely raised in the district court." --- U.S....

To continue reading

Request your trial
80 cases
  • United States v. Fitzgerald
    • United States
    • U.S. District Court — District of Maryland
    • 21 Enero 2021
    ...court should construe the indictment in a "practical," as opposed to a "purely technical," manner. Id. (citing United States v. Matzkin , 14 F.3d 1014, 1019 (4th Cir. 1994) ). See also United States v. Terry , 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring) ("It is elementary that ......
  • United States v. Daley
    • United States
    • U.S. District Court — Western District of Virginia
    • 2 Mayo 2019
    ...a "practical" rather than "purely technical" manner, "[a]pplying a liberal standard in support of sufficiency." United States v. Matzkin , 14 F.3d 1014, 1019–20 (4th Cir. 1994) (citations omitted). II. FACTS AS ALLEGED IN THE INDICTMENT Defendants are allegedly residents of California who a......
  • Thorne v. United States
    • United States
    • U.S. District Court — Western District of North Carolina
    • 29 Junio 2020
    ...be set forth sufficiently to identify the offense which the defendant is charged with conspiring to commit." United States v. Matzkin, 14 F.3d 1014, 1019 (4th Cir. 1994). A Hobbs Act crime has two elements: (1) robbery or extortion; and (2) interference with commerce. United States v. Willi......
  • United States v. Oaks
    • United States
    • U.S. District Court — District of Maryland
    • 20 Marzo 2018
    ......367 (1952), and the Court should construe the indictment in a "practical," rather than "purely technical," manner. United States v. Matzkin , 14 F.3d 1014, 1019 (4th Cir. 1994) ; see United States v. Terry , 257 F.3d 366, 371 (4th Cir. 2001) (King, J., concurring) ("It is elementary ......
  • Request a trial to view additional results
7 books & journal articles
  • PUBLIC CORRUPTION
    • United States
    • American Criminal Law Review No. 58-3, July 2021
    • 1 Julio 2021
    ...off‌icial with discretion to detain immigrants and set bonds and parole held a “sensitive” position). 125. See United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) (f‌inding that the defendant held a “sensitive” position because he had considerable discretion and inf‌luence in matte......
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 43 No. 2, March 2006
    • 22 Marzo 2006
    ...or sensitive position"); see also, United States v. Gaffing, 96 F.3d 1511, 1526 (D.C. Cir. 1996) (citing United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) dealing with a "sensitive" position, to demonstrate that a Chief of Section 8 housing was a "high-level" (133.) See United St......
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 45 No. 2, March 2008
    • 22 Marzo 2008
    ...or sensitive position"); see also United States v. Gatling, 96 F.3d 1511, 1526 (D.C. Cir. 1996) (citing United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) demonstrating that a Chief of Section 8 housing was a "high-level" (139.) See United States v. Reneslacis, 349 F.3d 412, 416 (......
  • Public corruption.
    • United States
    • American Criminal Law Review Vol. 44 No. 2, March 2007
    • 22 Marzo 2007
    ...or sensitive position"); see also United States v. Gatling, 96 F.3d 1511, 1526 (D.C. Cir. 1996) (citing United States v. Matzkin, 14 F.3d 1014, 1021 (4th Cir. 1994) dealing with a "sensitive" position, to demonstrate that a Chief of Section 8 housing was a "high-level" (139.) See United Sta......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT