445 F.2d 1076 (9th Cir. 1971), 25844, United States v. Friedman

Docket Nº:25844, 25997.
Citation:445 F.2d 1076
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Maurice H. FRIEDMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Manuel JACOBS, Defendant-Appellant.
Case Date:June 08, 1971
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1076

445 F.2d 1076 (9th Cir. 1971)

UNITED STATES of America, Plaintiff-Appellee,

v.

Maurice H. FRIEDMAN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Manuel JACOBS, Defendant-Appellant.

Nos. 25844, 25997.

United States Court of Appeals, Ninth Circuit.

June 8, 1971

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[Copyrighted Material Omitted]

Page 1078

Peter J. Hughes (argued), Sheela, Lightner, Hughes & Castro, San Diego, Cal., for appellant Friedman.

Burton Marks (argued), Beverly Hills, Cal., for appellant Jacobs.

David R. Nissen, Asst. U.S. Atty., (argued), Robert L. Meyer, U.S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, DUNIWAY and TRASK, Circuit Judges.

DUNIWAY, Circuit Judge:

After a lengthy jury trial codefendants Friedman and Jacobs were found guilty on six and five counts, respectively, of a multicount indictment. They appeal, alleging numerous errors. We affirm.

Appellants had previously been convicted, along with others, for participating in an organized scheme to cheat for profit in card games played at the Friars Club in Beverly Hills, California. See United States v. Roselli, 9 Cir., 1970, 432 F.2d 879. During the trial of that case (referred to as the Friars Club case), a secret grand jury transcript was found on the counsel table of the defense. It contained the testimony of a witness before the grand jury that had returned the indictments in that case. The court had not authorized access to the transcript by defense counsel.

In the case before us, eleven defendants were indicted on a total of 25 counts. All but three received severances, and of the three who went to trial together, one, Harold Rosenthal, was granted a motion for acquittal at the close of the prosecution's case. The other two, Friedman and Jacobs, are the present appellants. Friedman was convicted on the following counts: Count 1: conspiracy (18 U.S.C. § 371); Count 5: contempt (18 U.S.C. § 401) for violating F.R.Crim.P. 6(e) by possessing and disclosing unreleased grand jury transcripts; Counts 13 and 14: Receiving and concealing stolen government property (18 U.S.C. §§ 641, 642) on two occasions; Count 17: Obstruction of justice (18 U.S.C. § 1503) by use of unreleased grand jury transcripts; Count 19: obstruction of justice (18 U.S.C. § 1503) by attempting to influence prospective witness Corenson; Count 23: perjury (18 U.S.C. § 1621) during the Friars Club trial. Jacobs was convicted on the following counts: Count 1: conspiracy (18 U.S.C. § 371); Count 6: contempt (18 U.S.C. § 401) for violating F.R.Crim.P. 6(e) by possessing and disclosing unreleased grand jury transcripts: Counts 15 and 16: receiving and concealing stolen government property (18 U.S.C. § 641) on two occasions; Count 18: obstruction of justice (18 U.S.C. § 1503) by use of unreleased grand jury transcripts. 1

Each appellant was sentenced to three years imprisonment on each count, the terms to run concurrently with one another but consecutively to the sentences imposed in the Friars Club case.

A. Jacobs' contention that there was insufficient evidence to show that he participated in the alleged conspiracy.

Count 1 of the indictment charged a conspiracy whose aims were the unauthorized obtaining of recorded and unreleased secret grand jury testimony, providing that testimony to various defendants and defense counsel in the Friars Club case, attempt by those defendants to use the testimony to influence certain witnesses at the Friars Club trial, and use of the testimony by those defendants and their counsel in

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preparing for the trial. Count 1 named eight co-conspirators: Raymond Cohen, T. W. Richardson, Harold Rosenthal, Milton Rosenthal, Nathan Ross, William Schwartz, Friedman, and Jacobs. 2

Court 1 listed 15 overt acts, and neither Friedman nor Jacobs claims that the evidence was insufficient as to any of those overt acts. Jacobs' claim is that in his activities he dealt only with one of the other co-conspirators, Schwartz; that there was insufficient evidence for the jury to find that Jacobs either knew of the conspiracy or intended to further its Common aims; and that if he was engaged in any conspiracy, it was a smaller conspiracy with Schwartz and not the large, all-encompassing conspiracy charged in Count 1.

The factual background can be briefly summarized. In October 1967, while the grand jury investigation in the Friars Club case was in progress, Raymond Cohen was hired as office manager of Scribe Reporting Service (Scribe). The grand jury returned its indictment on December 21, 1967, and Cohen served as Scribe's office manager until April 1968. Scribe reported and prepared transcripts of the grand jury proceedings in the Friars Club case under contract with the United States. Scribe prepared an original transcript and two copies. The original and one copy were sent to the United States Attorney's office, and the second copy remained at Scribe's office. All copies remained the property of the United States; Scribe's contract with the government so provided.

William Schwartz was an acquaintance of Cohen, who told Schwartz that he had access to the copy of the Friars Club grand jury transcript kept at Scribe's office. Sensing potential profit, Schwartz asked Cohen to pass the transcripts to him. Through the intermediation of Milton and Harold Rosenthal and T. W. Richardson, Schwartz got in touch with Friedman, who indicated an interest in obtaining copies of the transcripts. Thereafter copies of the transcripts passed through Cohen and Schwartz to Friedman over a period extending from January 26 through about the third week in February, 1968. Following the last transfer of transcripts to Friedman, Schwartz had no further dealings with Friedman. Several weeks after Schwartz stopped dealing with Friedman, Schwartz met Jacobs and arranged to pass Friars Club transcripts to him. At a later meeting Jacobs asked Schwartz for the testimony of four or five named grand jury witnesses, which Schwartz subsequently gave him. About a week later, they met again; Jacobs requested additional transcripts by name, and Schwartz delivered them. Jacobs paid Schwartz several thousand dollars for the transcripts. Jacobs' account differs, but the jury resolved the conflict against him. See Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

Jacobs' argument is that Schwartz sold transcripts to Friedman for about a month, ending late in February; shortly thereafter, Schwartz sold transcripts to Jacobs; Friedman had no dealings with Schwartz during or after the period when Jacobs was dealing with Schwartz. Thus Jacobs could be guilty only of dealing with Schwartz. However, there was sufficient evidence from which the jury could have found, as it did, that Jacobs was a party to the conspiracy alleged in Count 1.

Jacobs shared the common aims of the conspiracy, and his actions intentionally advanced those aims. By obtaining copies of the transcripts, he assisted in disseminating the secret grand jury testimony. Because he was a defendant in the Friars Club case, his request to Schwartz for the transcripts and his receipt of the transcripts furthered the aim of providing the secret testimony to

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various defendants in that case. We have found no direct testimony stating that Jacobs or his counsel actually used the transcripts in preparing for the trial. However, Jacobs himself testified that he showed the transcripts to his attorney, Charles Lynberg. Both Lynberg and his partner, William Marshall Morgan, who represented Jacobs at the Friars Club trial, testified that they at some time possessed the transcripts. Moreover, Morgan, Friedman and Friedman's counsel Grant Cooper, all testified that Cooper obtained copies of the transcripts from Morgan. From this testimony and from Schwartz' account of his delivery of the transcripts to Jacobs and Jacobs' payment of several thousand dollars for them, the jury was entitled to infer that Jacobs did use the transcripts to assist in his defense and that of others, or at least, that he had obtained them for that purpose.

The more difficult question is whether Jacobs had any knowledge of the larger conspiracy. He dealt with Schwartz, who was a co-conspirator. Schwartz testified that on two occasions during their dealings, Jacobs asked him whether Friedman had obtained copies of the transcripts. Schwartz said that on both occasions he lied to Jacobs by answering in the negative. Schwartz stated, however, that on the second occasion Jacobs insisted repeatedly that Schwartz had passed transcripts to Friedman, but Schwartz continued in his denial. Jacobs himself testified that he asked Schwartz, at their first meeting, whether anyone else had copies of the transcripts and that Schwartz said no.

We think the jury could have inferred, from Schwartz' account of Jacobs' insistent behavior, that Jacobs then in fact had knowledge of the prior Schwartz-Friedman dealings. Moreover, the fact that Jacobs asked Schwartz for the testimony of several grand jury witnesses by name suggests that Jacobs had some knowledge of the grand jury proceedings; the jury could infer that he obtained that knowledge from someone who had seen the transcripts-- for instance, Friedman.

Thus the jury could properly have found that, at the time of his own dealings with Schwartz, Jacobs knew not only that Schwartz had obtained access to the transcripts, but also that Schwartz had previously passed some of them to Friedman. Through his own dealings with Schwartz, Jacobs was advancing the aims of the conspiracy. By taking the transcripts from Schwartz and paying Schwartz for them, Jacobs agreed with Schwartz, one of the co-conspirators, to advance those same aims. The jury could infer that Jacobs made that agreement with knowledge that at least one other person-- Friedman-- was involved in similar transactions with Schwartz. On the basis of these facts,...

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