United States v. Siegel, 109

• Citation: 263 F.2d 530
• Decision Date: 17 February 1959
• Docket Number: No. 109,Docket 25130.,109
• Parties: UNITED STATES of America, Appellee, v. R. Lawrence SIEGEL and Hadassah R. Shapiro, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

263 F.2d 530 (1959)

UNITED STATES of America, Appellee, v. R. Lawrence SIEGEL and Hadassah R. Shapiro, Appellants.

No. 109, Docket 25130.

United States Court of Appeals Second Circuit.

Argued November 13, 1958.

Decided February 17, 1959.

William G. Mulligan, New York City, for appellants.

Arthur B. Kramer, Arthur H. Christy, U. S. Atty. for the Southern Dist. of New York, New York City, for United States.

Before HAND, HINCKS and MOORE, Circuit Judges.

HAND, Circuit Judge.

This is an appeal from judgments of conviction entered by Judge McGohey upon the verdict of a jury. The indictment was in twelve counts, the 1st for a conspiracy to obstruct justice, the 2nd, 3rd, 4th, 5th and 6th for obstructing justice under § 1503 of Title 18 U.S.C., and the 7th, 8th, 9th, 10th, 11th and 12th for perjury under § 1621 of Title 18 U.S.C. The jury returned a verdict of guilty against the appellant Siegel on the 3rd, 4th and 5th counts for obstructing justice and upon four of the perjury counts, 7, 8, 9 and 10. It found a verdict against the appellant Shapiro on counts 3, 4 and 5 and on perjury counts 11 and 12. It acquitted both defendants upon the conspiracy count and on two of the obstruction counts, 2 and 6. The judge imposed upon the appellant Siegel a suspended sentence and put him on probation for a year and a day on each of the seven counts on which he was convicted, the sentences to run concurrently; in addition, he imposed a fine of $500 upon each of the four perjury counts. He suspended the imposition of sentence on the appellant Shapiro on all five of the counts on which she was convicted, and put her on probation for one year, the sentences to run concurrently. The appeal is based upon three main points: (1) that the prosecution did not establish that the testimony charged in the indictment was "material" to a proceeding pending at the time before the grand jury of the Southern District of New York; (2) that the defendants were not shown to have obstructed justice; and (3) that for seven separate reasons, stated in detail, the trial was unfair. The chief, and indeed the only important, question on this appeal is whether the testimony of the two appellants was "material" to an investigation pending before the grand jury for the Southern District of New York, instituted to examine two affidavits of one, Matusow, in which he recanted testimony that he had given on two trials in July 1952 and in January 1954. The first of these was a prosecution against Elizabeth Gurley Flynn and others for violation of the "Smith Act," 18 U.S.C. § 2385, and the second was a prosecution of one, Jencks, for filing a false affidavit. Matusow's testimony had been important in both these trials, but in January 1955 he submitted an affidavit in each case in support of an application for a new trial, in which he recanted his original testimony, adding in the Flynn case that one of the prosecutors had known that his testimony was false and had procured him to give it. In February 1955, the District Attorney for the Southern District of New York instituted an investigation before the grand jury, the object of which was to ascertain the truth of Matusow's recantation and of his charge against the prosecutor.

The grand jury subpoenaed Siegel, a lawyer, because it was known that Matusow had talked with him about his recantation; and the subpoena directed him to produce any documents relating to Matusow. Siegel appeared on March 3, 1955, and swore that beginning in April 1954 Matusow had had seven interviews with him, seeking his help in raising money to publish a book about his, Matusow's, career in the role of a "blacklister." Siegel testified that shortly after each interview he had dictated memoranda of the substance of the interview, which the grand jury directed him to produce. On March 17th he reappeared and presented as the original memoranda documents, at least three of which were substitutes for the originals. Before this, — on March 7th — he had brought to the District Attorney in charge of the case a "chronological" memorandum which he said contained all the information contained in the original memoranda. The District Attorney read this, but, not being satisfied, asked for the originals and it was between the 7th and the 17th that Siegel prepared the substitutes. The District Attorney, being still dissatisfied, asked for the stenographic notes from which the typed pages had been transcribed. On March 20th at Siegel's direction his stenographer, Mary Manna, changed the original stenographic notes in her books so that they should correspond with the changed memoranda put in...