United States v. Wiseman

Citation445 F.2d 792
Decision Date30 June 1971
Docket NumberNo. 445,35636.,Dockets 35286,469,445
PartiesUNITED STATES of America, Appellee, v. Robert WISEMAN, Defendant-Appellant. UNITED STATES of America, Appellee, v. Herman RICK, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Robert Ehrenbard, New York City, for defendant-appellant Robert Wiseman.

Harry Schein, New York City (Schein, Bressler & Brickel, New York City, of counsel), for defendant-appellant Herman Rick.

Richard A. Givens, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U.S.Atty., for S.D.N.Y., New York City, Robert P. Walton, David Paget and Ross Sandler, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before LUMBARD, MOORE and SMITH, Circuit Judges.

MOORE, Circuit Judge:

Both defendants are appealing from judgments of conviction under 18 U.S.C. §§ 242 and 2. Defendant Wiseman was charged in separate counts with thirty-five violations of these statutes, and defendant Rick was charged with seven. The jury found Wiseman guilty on sixteen counts and Rick guilty on three. Wiseman was sentenced on June 18, 1969 to a one year suspended sentence. Rick was sentenced on February 25, 1970 also to a one year suspended sentence.

Defendants had been employed by Nathan Lindsay as professional process servers. They admit that they routinely signed blank forms entitled "affidavit of service" and that such affidavits were completed with false information stating that persons who were never served had in fact been served. These affidavits were filed in the Clerk's Office and on the basis of such affidavits, default judgments were entered against the persons named as defendants in the suits to which the affidavits of service related. In some cases, such judgments served as a basis for income executions which were effected against such persons. A number of people testified that an income execution against them led them to discover that a judgment had been entered against them. Others indicated that their credit rating was adversely affected by the fact that such judgments had been entered.

Defendants did not contest this evidence but instead stated that they did not know or intend that their signatures on the blank forms entitled "affidavit of service" would be used except after they had given information indicating that service had actually been made on a certain individual. They stated that at no time were they aware of the fact that the signature in an affidavit must be sworn to, and thus, they never swore to the correctness of any of the blank "affidavits of service." Thus, these forms, although entitled "affidavit of service" did not constitute proper affidavits because they were unsworn.

To rebut the inference that the defendant Wiseman was unaware that his signature was being used fraudulently, the government cross-examined him as to whether he had previously been asked by Lindsay to appear in court, pretending to be a fictitious process server created by Lindsay. Wiseman admitted that such a scheme had been proposed except that he stated that he thought he was to go to court to say that "Lloyd Cahn" could not be present. The government then introduced testimony by Abraham Kalkin, an attorney, who testified that Wiseman had told him that Lindsay had asked him to pretend to be "Cahn." It is not contended that Wiseman consented to this scheme; he clearly did not.

I. Under Color of Law

Defendant was convicted under 18 U. S.C. § 242 and § 2. Section 242 provides in part:

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * shall be guilty of a crime."

The "under color of * * *" clause has a meaning identical with that given the term "state action." United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966). Section 2(b) provides that:

"Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal."

The state action doctrine has often been invoked in the last several years but this is the first time this court has been called on to decide whether and to what extent this doctrine applies to "private" process servers, either directly under § 242 or as aiders and abetters under § 2(b).

There is no doubt that the Clerk of the New York City Civil Court, New York County, is an employee of an agency of a subdivision of New York State, and acts "under color of state law." Thus, as to the aiding and abetting charge, there is state action, even though defendants themselves are not state employees. United States v. Price, supra. Defendants argue that without the Clerk's knowing participation in this scheme, § 215 is inapplicable. This contention is refuted by the reasoning of United States v. Lester, 363 F.2d 68 (6th Cir. 1966), cert. denied, 385 U.S. 1002, 87 S. Ct. 705, 17 L.Ed.2d 542 (1967). Before 1951, § 2(b) read:

"Whoever wilfully causes an act to be done which if directly performed by him would be an offense against the United States, is punishable as a principal." (Emphasis added.)

In 1951, this section was amended by adding "or another" after "by him" (see above). The phrase "or another" includes the Clerk of the Civil Court. Thus if defendants "wilfully caused" the Clerk to enter such judgments, defendants would be culpable to the same extent as the Clerk would be assuming the Clerk had the same knowledge as was possessed by defendants as to the falsity of the papers.

In addition, it is suggested that defendants engaged in State action directly. New York law provides that anyone who is over eighteen and not a party to the lawsuit may serve a summons.1 Appellants were, therefore, permitted to serve summonses under this blanket authorization. The State did not pay them; their employer was hired by various attorneys for the purpose of effecting service of papers in connection with lawsuits. Thus, defendants were neither State employees nor employees of a person who was under contract with the State. See Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19 (1958); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964); Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4th Cir.), cert. denied, 326 U. S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945). The blanket form of authorization given by the State to virtually all adult citizens to serve process2 together with the apparent lack of any State supervision of process servers other than the statutory provisions relating to the proper method of service, leads us to conclude that there was neither State encouragement nor involvement in the practice of submitting false "affidavits." See Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed. 2d 830 (1967); Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).3

The government also argues that defendants were engaged in "state action" under the "public function theory." The so-called "public function theory" consists of two related but distinct and narrowly defined doctrines. Powe v. Miles, 407 F.2d 73 (2d Cir. 1968). One branch of the "public function theory" relates to areas which are open to the general public but which are privately owned. Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). Since no public area is involved in this case, this branch of the "public function theory" is inapplicable. The other branch of the "public function theory" is based on such cases as Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953) and Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), cf. Evans v. Newton, supra, 382 U.S. at 301. 86 S.Ct. 486. We believe this case to be among the narrow class of cases where state action can be found on the basis of this second branch of the public function theory. Unlike most functions involved in the conduct of a lawsuit by private parties, the service of summons is essentially and traditionally a public function. As one New York court suggested: "the service of process is an act of public power." In re Bonesteel's Will, 16 A.D.2d 324, 326, 228 N.Y.S.2d 301, 304 (3d Dept. 1962). That the defendants sought to take advantage of their authority to perform this "act of public power" by signing blank affidavits of service without actually effecting service does not remove their activities from the "public" classification. Indeed, the signing of an "affidavit of service" is as much a part of the exercising of the right to effect service of summons as is the act of service itself. Similarly, that defendants signed "affidavits" in blank, rather than waiting until they were filled in and then swearing to the accuracy of the information contained therein as required by State law does not remove or lessen the "public" nature of the act. To violate § 242, an act need not have been made in compliance with law but merely "under color of law." Defendants admitted that they expected the forms they signed to be later filled in, notarized and filed with the Civil Court. That the mode of execution was improper only aggravated the crime. See Griffin v. Maryland, 378 U.S. 130, 135, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); United...

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