United States v. Leviton

• Decision Date: 30 November 1951
• Docket Number: Docket 22076.,No. 41,41
• Parties: UNITED STATES v. LEVITON et al.
• Court: U.S. Court of Appeals — Second Circuit

193 F.2d 848 (1951)

UNITED STATES v. LEVITON et al.

No. 41, Docket 22076.

United States Court of Appeals Second Circuit.

Argued October 4, 1951.

Decided November 30, 1951.

Sidney Feldshuh, of New York City (Feldshuh & Bier, of New York City, on the brief), for appellant Leviton.

Telford Taylor, of New York City (Landis, Taylor & Scoll, Kove & Zeck, William A. Zeck, and George J. Solomon, all of New York City, on the brief), for appellant Blumenfeld.

Murray W. McEniry, of New York City, for appellant Markowitz.

Stanley D. Robinson, Asst. U. S. Atty., of New York City (Irving H. Saypol, U. S. Atty., and Bruno Schachner, Asst. U. S. Atty., both of New York City, on the brief), for the United States, appellee.

Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.

CLARK, Circuit Judge.

These are appeals from convictions under an indictment framed in twenty-one counts. Counts one to eleven charged that defendants "wilfully and knowingly did make and cause to be made false and fraudulent statements in `Shippers' Export Declarations'" in violation of 18 U.S.C. § 80 (1946 Ed.), now 18 U.S.C. §§ 287, 1001. Counts twelve to twenty-one charged that defendants wilfully and knowingly exported flour and lard in violation of Presidential Proclamation No. 2413, 54 Stat. 2712, promulgated July 2, 1940, pursuant to 50 U.S. C.App. § 701 (1946 Ed.). There was no conspiracy count. After a trial of over a month the jury found Leviton and Blumenfeld guilty on all twenty-one counts, while it acquitted Markowitz on counts twelve to twenty-one and found him guilty on counts one to ten, the eleventh count having been dismissed as to him during the trial. Both Leviton and Blumenfeld received sentences of imprisonment and fines on each of the first eleven counts, Leviton three years to run concurrently and $1,000 fine on each, Blumenfeld a year and a day concurrently, with $500 fine on each. On the other counts they received suspended sentences, with probation of two years and a year and a day respectively after termination of their previous sentences. Markowitz received concurrent sentences of a year and a day on each of the first nine counts, with suspended sentence and probation for two years on the tenth count. On this appeal all the defendants challenge the adequacy of the indictment and the sufficiency of the evidence, and they also assign several errors in the conduct of the trial.

The case as presented by the prosecution — the defendants offering no evidence — was as follows: During the period covered by the indictment — October 11, 1947, to March 12, 1948 — private export to Italy of, among other things, wheat and lard was prohibited by the presidential proclamation cited. This restriction, however, did not apply to foreign relief agencies which were authorized to ship wheat (by merely placing the general license symbol "RLS" on their export declarations) and lard (by including a special license number on declarations). At this time Blumenfeld was a merchandise exporter for a private relief agency, Leviton the Traffic Manager for the Barr Shipping Company (the freight forwarding firm handling all New York shipments to Italy for American Relief for Italy, a private relief agency), and Markowitz a visa clerk in the Customs House whose function it was to examine and approve export declarations.

Apparently after a direct, but unsuccessful, attempt through one Saxon to interest Rizzotti, Traffic Manager of American Relief, in his plan to evade the restrictions on private export, Blumenfeld contacted Markowitz and the following scheme was devised. Blumenfeld would make the purchases of the commodities to be exported. Leviton, who administered all regular American Relief shipments generally for Barr, acted as freight forwarder, preparing the necessary documents for transocean shipment, including the shippers' declarations. On these declarations he described the shipments as for the account of American Relief for Italy, care of Societa Soveglianza, Genoa, inserted the name not of the Barr Shipping Company, but of the person from whom Blumenfeld had purchased the commodities as exporter, and inscribed each with the general or special license designations described above. These false declarations were then approved by Markowitz as visa clerk for the Bureau of Customs, since steamship companies would not ship without an export declaration thus cleared. Some ten shipments of varying quantities of wheat or lard were thus effected. On the eleventh attempt, however, another visa clerk in the Customs Bureau received the declaration in question and in this way the scheme was uncovered. Counts one to eleven of the indictment cover the eleven false declarations, counts twelve to twenty-one the ten shipments which were completed.

Defendants' attack on indictment counts one to eleven is that the false statements and representations made in the export declarations were not made "in a matter within the jurisdiction of the Bureau of Customs, United States Treasury." This contention is based on the ground that the control of exports was lodged with the Department of Commerce by Act of July 2, 1940, as amended, 50 U.S.C.App. § 701 (1946 Ed.), and that the main purpose of these declarations was an informational one for the benefit of the Office of International Trade and the Bureau of the Census. But this assumes too narrow a view of the term "jurisdiction" in 18 U.S.C. § 80 (1946 Ed.). Congress was here concerned with such false statements as might impede the "exercise of federal authority." Terry v. United States, 8 Cir., 131 F.2d 40, 44. The clearance of export shipments was specifically conditioned on presentation of a shipper's declaration to the Collector of Customs. 15 U.S.C.A. § 174, 15 CFR, 1947 Supp. §§ 30.30, 30.31. Hence submission of such declaration to the Bureau, whether or not accepted or acted upon in the prescribed manner, brings it within the jurisdiction of that Bureau. See United States v. Bowman, 260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149; United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598.

Markowitz also raises the question of the validity of the indictment counts one to ten in the light of the proof as to his part in the scheme. As with the other two defendants, his indictment followed the language of the statute in alleging that he made or caused to be made false statements in the export declarations in question. Viewed strictly, the proof established only that he aided in and made possible the use of the declarations, knowing their fraudulent character. Nonetheless, there is no fatal variance between the crimes alleged and the acts proven. The making of false statements in the jurisdiction of a governmental department necessarily includes and requires that such statement be presented with an intention that it be acted upon. United States v. J. Greenbaum & Sons, 2 Cir., 123 F.2d 770. Markowitz' role in the presentation was too crucial for us to say that he played no part in the making of false statements as proscribed by the statute. We have pointed out that indictments under this provision "are to be upheld when they acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense." United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921, certiorari denied Goldsmith v. United States, 309 U.S. 678, 60 S.Ct. 715, 84 L.Ed. 1022; United States v. Achtner, 2 Cir., 144 F.2d 49, 51; United States v. Sherman Auto Corp., 2 Cir., 162 F.2d 564, 565. Especially after jury verdict, as here, the test becomes one of real prejudice. Grey v. United States, 7 Cir., 172 F. 101. There is no intimation that such occurred and we accordingly hold the indictment also valid as to Markowitz.

We turn next to defendants' contentions as to the insufficiency of proof. The evidence of Leviton's part in the making of the false declarations was so clear that there can be no question as to him; indeed he makes no serious challenge on this issue. Blumenfeld's conviction on counts 12 to 21 alleging conscious violation of the presidential proclamation prohibiting export of certain commodities to specific areas was supported by evidence that he knew of the license requirement and actually made the shipments in question. He was in fact the actual exporter. As to the fraudulent export declarations covered by counts one to eleven, there is admittedly no direct proof that he took any part in the physical preparation of these documents or even that he ever saw them. But he was the one to profit most directly from them, and appropriate circumstantial evidence justified the inference as to his guilt in the absence of any evidence to the contrary. Thus we do have the proof of Blumenfeld's meeting with Rizzotti to arrange for the making of the exports; though this was unsuccessful in its immediate purpose it tended to show Blumenfeld's knowledge as to the need of a relief license to make the shipments. Moreover, in addition to evidence of an attempt on Blumenfeld's part to induce Saxon to keep silent, there was also evidence connecting Blumenfeld with similar schemes not covered by the indictment. Thus Blumenfeld was shown to be present at another meeting where Leviton agreed to sell a similarly fraudulent export declaration purporting to describe flour shipments to Brazil for $4,000, and therefore well aware of the fraudulent methods employed by Leviton in making the shipments. True, the admission of evidence as to any declarations not covered by the indictments was sharply challenged by the defendants. But the circumstances out of which they grew were too neatly akin to those covered in the indictment to say that such evidence was incompetent on the issues of design and intent here. King v. United States, 8 Cir., 144 F.2d 729, certiorari denied 324 U.S. 854, 65 S.Ct. 711, 89 L.Ed. 1413; Harper v. United States, 8 Cir., 143 F.2d 795; Silkworth v. United States, 2 Cir., 10 F.2d 711, 720, ...