Lieberman v. Gulf Oil Corporation

• Decision Date: 24 April 1964
• Citation: 331 F.2d 160
• Parties: Edward LIEBERMAN, Plaintiff-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

331 F.2d 160 (1964)

Edward LIEBERMAN, Plaintiff-Appellant, v. GULF OIL CORPORATION, Defendant-Appellee.

United States Court of Appeals Second Circuit.

Argued January 20, 1964.

Decided April 24, 1964.

Bernard Tompkins of Tompkins & Lauren, New York City, for plaintiff-appellant.

Leo T. Kissam of Kissam & Halpin, New York City (Edmond K. Leach and Anthony S. Genovese, New York City, on the brief), for defendant-appellee.

Before FRIENDLY, SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge.

Plaintiff appeals from a judgment for defendant entered upon the verdict of a jury. Jurisdiction is based upon diversity of citizenship.

Plaintiff sought to recover on two counts. In the first he claimed that defendant's agents, "by means of knowingly false and misleading statements to United States Government authorities caused the arrest of the plaintiff by United States Government agents in Bronx County in the Southern District of New York for the alleged crime of transporting stolen property in interstate commerce in violation of U.S. Code Title 18 § 2315, a felony." The second count was for malicious prosecution in causing indictment of the plaintiff for conspiracy to transport stolen goods.

The plaintiff complains of errors in the admission of evidence, in instructions to the jury, and in denying his motion to dismiss an affirmative defense which set up the claim that plaintiff was guilty of the crimes charged.

In origin this case goes back to the theft in 1955 of several million dollars worth of geophysical and seismographic maps and accompanying memoranda from the files of the defendant's Pittsburgh offices. W. B. Edwards, a staff attorney of defendant, was designated to conduct an investigation of the theft. He was assisted in this investigation by one John M. Leivia.

In December 1956 Edwards received information that some of the stolen maps were in the possession of the plaintiff Lieberman at the offices in New York City of a corporation of which Lieberman was president. Inventing a pretext for doing so Edwards arranged for a meeting at Lieberman's office. He was accompanied by Leivia. At the meeting Edwards was shown certain maps which he recognized as copies of the maps which had been stolen from defendant.

Edwards promptly executed an affidavit in support of a request for the issuance of a search warrant authorizing a search of the premises of Lieberman's company. On the next day a United States Commissioner in Pittsburgh issued a warrant for Lieberman's arrest. The warrant was based on a complaint sworn to by a Special Agent of the Federal Bureau of Investigation. The complaint charged that Lieberman had transported stolen property in interstate commerce.

A few days later Lieberman was indicted along with several others including his brother, whose name was Emanuel Lester, on a charge of conspiracy to transport stolen property. Lieberman, Lester and one other defendant were tried and Lieberman was acquitted, the other two convicted.

Plaintiff thereafter brought the present proceeding, alleging, in effect, that both his arrest (first count) and his indictment (second count) were brought about by knowingly false statements made to the authorities by defendant's agents Edwards and Leivia.

With respect to the first count plaintiff complains of certain rulings on the introduction of evidence and of certain instructions to the jury. We do not find it necessary to examine plaintiff's contentions since a consideration of the entire record reveals that plaintiff's evidence, even taken in its best light, is wholly insufficient to support a verdict for plaintiff. In other words, since, if the jury had found for the plaintiff, we would have been forced to reverse on the basis of plaintiff's evidence alone, and order the entry of judgment for the defendant, it can be of no moment whether the court erred in admitting evidence for the defendant or in giving instructions which were too favorable to defendant. It should be clearly understood, of course, that we are not stating that the court committed any error in these respects. Whether or not there was such error is irrelevant in the light of our holding that the plaintiff failed to make a case on which a verdict could be rested.

In order to recover on his first count it was necessary for plaintiff to show that defendant's agents made false statements about plaintiff which either were known to be false or were made with reckless indifference to their truth or falsity, and that these statements led to plaintiff's arrest. The only statement allegedly of this kind which has been brought to our attention was a statement made by Leivia to one of the agents of the Federal Bureau of Investigation on the day before Lieberman's arrest to the effect that Leivia thought there were 1100 pounds of stolen maps located in the building in which Lieberman's corporate offices were located.

Leivia's statement fails by a wide margin to provide a basis for a finding for plaintiff. First, there is no evidence from which the jury could properly conclude that Leivia's statement was false, since it was a statement about his belief and there is no indication that Leivia did not honestly believe that a large number of maps were secreted on Lieberman's premises. Second, Leivia's statement was true in its central allegation that there were stolen maps at Lieberman's place of business. Even if the statement be taken as one of fact, it is claimed to be false only in the incidental particular that there were 1100 pounds of such maps, and even in that particular, there is no evidence to show that it was false or that, if so, Leivia did not have good reason for believing it to be true. Finally, and conclusively, there was no evidence to show that in securing the warrant in Pittsburgh the FBI relied on, or even knew of, the statement made by Leivia the night before in New York.

Turning to plaintiff's second count, the claim for malicious prosecution, we find that with respect to that claim plaintiff cites as error (1) "permitting defendant to detail and emphasize the criminal record of defendant's brother," (2) denying plaintiff's motion to dismiss defendant's affirmative defense, (3) instructing the jury "that the issue of probable cause hinged solely on belief of defendant's agents," (4) submitting an interrogatory establishing a "standard of intent contrary to the rule that malice may be inferred from want of probable cause."¹

With respect to the second count, the court submitted the following special interrogatory to the jury:

"Was the primary purpose of Leivia or Edwards or both actuated by malice against Lieberman rather than by an intention of bringing an offender to justice?"

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