U.S. v. Rubin

Decision Date15 April 1988
Docket NumberNo. 421,D,421
Citation844 F.2d 979
PartiesUNITED STATES of America, Appellee, v. Richard L. RUBIN, Defendant-Appellant. ocket 87-1190.
CourtU.S. Court of Appeals — Second Circuit

Emily Berger, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., for the E.D.N.Y., John Gleeson, Asst. U.S Gavin W. Scotti, New York City, for defendant-appellant.

Atty., Brooklyn, N.Y., on the brief), for appellee.

Before KAUFMAN, MESKILL, and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Richard L. Rubin, an attorney who was involved in New York State ("State") lawmaking and politics, appeals from a judgment entered in the United States District Court for the Eastern District of New York, after a jury trial before Jack B. Weinstein, Chief Judge, convicting him on one count of conspiracy to commit mail fraud and one count of conspiracy to cause the filing of false income tax returns, both in violation of 18 U.S.C. Sec. 371 (1982); six counts of mail fraud, in violation of 18 U.S.C. Sec. 1341 (1982); and two counts of causing the filing of false income tax returns, in violation of 26 U.S.C. Sec. 7206(2) (1982). Rubin was sentenced to five-year prison terms on each of the conspiracy counts and on five of the six mail fraud counts, and to three-year prison terms on each of the income tax counts, all terms to be served concurrently. On the remaining mail fraud count he was given a suspended five-year sentence and placed on probation for five years, to begin after the conclusion of his prison term and parole, with the condition that he have nothing to do with law or legislation during his probationary term. In addition, Rubin was ordered to make restitution in the amount of $33,468.07, to pay a $380,000 fine, see 18 U.S.C. Sec. 3623(a) (Supp.III 1985), and to pay mandatory assessments totalling $500. He is free on bail pending appeal.

On appeal, Rubin contends that the acts charged do not fall within the purview of the mail fraud statute, and that the evidence was insufficient to support his conviction on any count. We disagree and affirm the judgment of conviction.

I. BACKGROUND

During the period in question, Rubin, an attorney who maintained a private law practice in Queens County, New York, was also a special counsel to the Speaker of the New York State Assembly ("Assembly") and was Executive Secretary to the Executive Committee of the Queens Democratic Organization ("QDO"). All of the offenses of which Rubin was convicted related to the salaries of Marilyn Wagner, his law office secretary from 1980 to 1982, and Mary Robles, his law office secretary from 1982 to 1986. Their salaries derived from three sources: the Assembly, the QDO, and Rubin personally.

The government contended that Rubin fraudulently caused the use of State funds to pay the major part of the salaries received by his secretaries although they did almost no work for the Assembly, and that by reason of the mailing of Assembly checks to pay these salaries, Rubin was guilty of mail fraud and conspiracy to commit mail fraud. Most of the rest of the salaries of Wagner and Robles came from the QDO, and the government contended that Rubin had advised them not to report the QDO payments as income, thereby causing the filing of false income tax returns. As a result of the use of State funds and the ostensibly tax-free QDO funds, Rubin was able to have full-time secretarial help for his private law practice at a cost to himself of just $3,500 to $4,000 per year.

The government's case was presented principally through the testimony of Wagner, Robles, and Assembly members David Cohen and Gerdi Lipshutz, all of whom testified pursuant to grants of immunity. Taken in the light most favorable to the government, the evidence was as follows.

A. The Assembly's Secretarial Staff Arrangements

The Assembly provided Rubin with a secretary in Albany, New York, who worked during the Assembly session, which ran from January until June, and with occasional help from an Assembly secretarial pool maintained in Manhattan. Rubin had neither the budget nor the authority to hire additional secretarial help.

Members of the Assembly had budgets to hire office staff and staff for committees on which they had leadership positions. With the approval of the Assembly Speaker or his chief administrative aide, members could obtain budget increases for the hiring of additional staff. Though there were no ceilings on or guidelines governing such increases, there were safeguards designed to ensure that employees placed on a member's payroll actually worked for the Assembly. The employee was required annually to fill out an application for employment and to sign a Certificate of Continuing Performance of Duties ("Continuing Performance") stating that the employee was providing the services of the position. The Assembly member was required to fill out an annual Personnel Action Request for each employee as well as a biweekly Personnel Service Voucher certifying that the employee was working in the appropriate position; only after receipt of the latter form was the employee's paycheck released.

B. Wagner's Salary Arrangements and Responsibilities

Wagner testified that she was hired by Rubin in mid-1980 to be the secretary in his law office. He told her that when the Assembly went into session in 1981, she would be placed on its payroll. Either in the job interview or soon after she was hired, Rubin assured her that, although her total salary would be somewhat less than her salary in her previous position, her total take-home pay would be higher because the portion of her salary that came from the QDO would not be taxed.

In January 1981, Wagner was placed on the Assembly payroll as an employee of Assemblyman Cohen, an attorney and personal friend of Rubin with whom Rubin shared, inter alia, clients, business ventures, and an apartment. Rubin obtained an Assembly budget increase for Cohen to cover Wagner's salary; Cohen submitted Personnel Action forms stating that Wagner was on his office staff and signed Personnel Service Vouchers every two weeks indicating that Wagner was performing the work of an administrative aide in 1981 and a junior administrative assistant in 1982. Wagner submitted employment applications in 1981 and 1982, and signed certificates of Continuing Performance, representing that she was actually working on Cohen's staff during those years.

In fact, Wagner did virtually no work for Cohen. Cohen stated that Wagner worked for him a few times; she testified that she worked for him only once. Nor did Wagner spend any significant amount of time on Assembly matters for Rubin. Rather, she estimated that she spent about 80% of her time doing paralegal-type work on guardianships and conservatorships held by Rubin. Nearly all the rest of her time was spent on QDO matters. Only about 1% of her time was spent on Assembly matters, principally taking and relaying telephone messages.

In 1981, Wagner was paid a total salary of $16,300; of this amount, $7,500 was paid by the Assembly. She worked for Rubin until October 1982. In 1982, her annual salary level was $17,700, of which the Assembly was to pay approximately $9,000. Her Assembly paychecks were mailed from Albany to Cohen's office in Queens.

In those years, Wagner also received, respectively, $5,300 and $4,100 from the QDO. Relying on Rubin's 1980 representations to her, she did not report these amounts on her income tax returns. Those returns were prepared for her by Rubin's accountant, without charge to Wagner.

C. Robles's Salary Arrangements and Responsibilities

When Wagner left Rubin's employ in October 1982, she was replaced by Robles. In Robles's job interview, Rubin informed her that she would be put on the Assembly payroll. He also assured her that she would earn more working with him than she had in her previous job, though it might not appear to be so, because part of her salary would be off-the-books payments from the QDO and would not be taxable.

Initially, Robles replaced Wagner on Cohen's Assembly payroll, and Cohen provided the same type of documentation for Robles that he had for Wagner. Cohen was defeated for reelection in the 1982 Democratic primary, however, and Rubin got Assembly member Lipshutz to place Robles on her payroll beginning in 1983; he secured for Lipshutz a budget increase to cover Robles's salary. Lipshutz filed documentation indicating that Robles worked in 1983 for the Assembly Steering Committee and in 1984-86 for the Assembly Subcommittee on Casino Gambling; Lipshutz also signed the biweekly Personnel Service Vouchers for Robles indicating that she was performing her duties.

In fact, Robles did no work at all for Cohen and none for Lipshutz prior to 1986, when political events and public attention prompted Rubin and Lipshutz to alter their arrangements. Prior to the change, Robles spent most of her time managing Rubin's law office and doing paralegal-type work on his guardianships and conservatorships, and most of the remainder of her time doing QDO work. She estimated that only 2% of her time was spent on Assembly work.

In the meantime, the Assembly was paying approximately half her salary. In 1983, 1984, and 1985, for example, Robles's total salary ranged from approximately $18,000 to $20,000. In those years the amounts paid by the Assembly were approximately $9,000, $10,000, and $9,500, respectively. Robles's pay checks were mailed from Albany to Lipshutz's district office; at Rubin's instruction, Lipshutz's administrative assistant mailed the checks to Rubin's office in plain, non-Assembly envelopes. All other checks were mailed from Lipshutz's office in Assembly envelopes.

During these years, Robles received approximately $5,000 to $6,000 per year from the QDO. Because Rubin had told her she would not have to report the QDO payments as income, Robles was surprised that the payments were made by check rather than in cash....

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