U.S. v. Abrahams

• Decision Date: 12 October 1979
• Docket Number: No. 78-5687,78-5687
• Citation: 604 F.2d 386
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan Herbert ABRAHAMS, a/k/a James A. Carr, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 386

604 F.2d 386

UNITED STATES of America, Plaintiff-Appellee, v. Alan Herbert ABRAHAMS, a/k/a James A. Carr, Defendant-Appellant.

No. 78-5687.

United States Court of Appeals Fifth Circuit.

Oct. 12, 1979.

Anthony M. Cardinale, F. Lee Bailey, Kenneth J. Fishman, Boston, Mass., for defendant-appellant.

LeRoy M. Jahn, Wayne C. Speck, Asst. U. S. Attys., San Antonio, Tex., Michael Collora, Robert B. Collings, Asst. U. S. Attys., Boston, Mass., for the U. S.

Appeal from the United States District Court for the Western District of Texas.

Before TJOFLAT and VANCE, Circuit Judges, and ALLGOOD, District Judge. ^*

ALLGOOD, District Judge:

The defendant, Alan Herbert Abrahams, was convicted after a bench trial of the charges contained in a one-count indictment charging the defendant with a violation of 18 U.S.C. § 1001. ¹ Following the conviction of the defendant, he was sentenced by the District Court to the custody of the Attorney General for a period of forty months, said sentence to be served concurrently with two other Federal sentences the defendant was serving at the time sentence was imposed.

For reversal, the defendant makes the following contentions: (1) the defendant's motion to dismiss and for judgment of acquittal should have been granted as 18 U.S.C. § 1001 is inapplicable to a judicial proceeding such as a bail hearing; (2) the defendant's motion for judgment of acquittal should have been granted because the alleged false statements fell within the "exculpatory no" exception to 18 U.S.C. § 1001; (3) the defendant's motion for judgment of acquittal should have been granted because the alleged false statements were not material; and (4) the defendant's motion to suppress statements before the Magistrate should have been granted because said statements were made in violation of defendant's Fifth Amendment rights.

The issues raised in this case present matters of first impression in this Circuit and with regard to the precise factual and legal issues involved, appear to be issues of first impression in the Federal Judicial System.

For the purposes of this appeal, only two issues need be discussed in detail. These issues are restated in the following language: Is a hearing for the purpose of setting bail before a U.S. Magistrate a judicial proceeding as opposed to an administrative or "housekeeping" proceeding? Can a false statement made by a defendant in a judicial proceeding be a basis for a prosecution brought pursuant to 18 U.S.C. § 1001?

If a defendant in response to a question addressed to him by a U.S. Magistrate in a bail proceeding merely answers "No", does such a response, if false, fall within the "exculpatory no" exception to criminal liability pursuant to 18 U.S.C. § 1001?

The answers to the foregoing questions are obscure to say the least. The learned District Judge who tried this case and found the defendant guilty was troubled with respect to these two questions. The proceedings below contain several references by the trial judge indicating his doubt as to how these questions should be answered and suggesting that the final answer would have to come from an appellate court and possibly the Supreme Court of the United States.

After careful consideration of these two issues, we are convinced that the questions posed above must be answered in the affirmative and therefore the conviction of the defendant reversed.

FACTUAL BACKGROUND

In January of 1978, the defendant was residing in Marble Head, Massachusetts. On January 10, 1978, the defendant was arrested at his home by United States Marshals.

                The basis for the arrest was an arrest warrant for James Carr for criminal contempt, the aforesaid warrant having been issued by the United States District Court for the Western District of Michigan.  Following his arrest the defendant was taken to the Office of the United States Marshal in Boston, Massachusetts.  On the afternoon of January 10, 1978, the defendant and two co-defendants were taken before a United States Magistrate.  The defendant appeared before the Magistrate represented by counsel.  The Magistrate determined that the defendant's appearance was for two purposes first, to determine whether the defendant should be removed to the Western District of Michigan to answer the charges of criminal contempt pending in that court pursuant to Rule 40, Federal Rules of Criminal Procedure.  2 Secondly,  
                the Magistrate determined that the defendant should have a hearing with respect to bail.  Without delineating the scope of the Rule 40 hearing, the Magistrate scheduled a hearing to be held ten days from the date of arrest and proceeded to consider the matter of bail.  The Magistrate's interrogation of the defendant regarding the bail issue was introduced by the following statement made by the Magistrate: "James Carr, I have to ask you some questions relative to bail."  Prior to addressing questions to defendant regarding the setting of bail, the Magistrate did not give the defendant the advice required by Rule 5(c), Federal Rules of Criminal Procedure.  3 The interrogation of the defendant by the Magistrate was as follows
                

THE COURT: What is your middle initial, Mr. Carr?

THE DEFENDANT: A.

THE COURT: And your address, please.

THE DEFENDANT: 201 Ocean Avenue, Marble Head.

THE COURT: Your age, sir.

THE DEFENDANT: 45, Your Honor.

THE COURT: Where were you born?

THE DEFENDANT: Chicago.

THE COURT: Are you married?

THE DEFENDANT: Yes.

THE COURT: Do you have children?

THE DEFENDANT: Yes.

THE COURT: Do you have any type of military service?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Which?

THE DEFENDANT: The Navy.

THE COURT: When were you discharged? Just the year.

THE DEFENDANT: 1952.

THE COURT: Where are you employed?

THE DEFENDANT: Lloyd, Carr & Company

THE COURT: How long have you been employed there?

THE DEFENDANT: About a year and eight or nine months, Your Honor.

THE COURT: And what do you do there?

THE DEFENDANT: I am President.

THE COURT: Do you have any history of alcoholism, drug addiction or mental disorders?

THE DEFENDANT: I do not, Your Honor.

THE COURT: Have you been previously arrested or convicted of a crime?

THE DEFENDANT: No, Your Honor.

At this point in the colloquy, the Magistrate was interrupted by an Assistant United States Attorney who stated as follows: "I wonder if the Court might ask a couple of other questions then I'll give my reason, if necessary. Has Mr. Carr used any other name in the past other than James A. Carr which I understand his name to be at the present? Secondly, where was he employed prior to Lloyd, Carr, since the period of employment there was fairly brief, if the Court would not mind inquiring of Mr. Carr." After posing other questions not here pertinent, the Magistrate, following the request of the Assistant United States Attorney, posed the following question to the defendant and received the following response:

THE COURT: Have you used any other names?

THE DEFENDANT: No.

Following this colloquy and after further remarks by the Assistant United States Attorney, the Magistrate elected to set bail for the defendant in the amount of $100,000 cash or surety. Bail in this amount had been recommended by the United States District Court for the Western District of Michigan in connection with a warrant issued by that Court charging the defendant with criminal contempt. The Magistrate set bail in accordance with the directive received from the United States District Court for the Western District of Michigan. The only alteration in bail as prescribed by the United States District Court, Western District of Michigan, was to permit the defendant to post $50,000 bail immediately and to post the balance of bail a few days following the bail proceeding.

It was later determined that the true name of the defendant who had been arrested in a warrant for the arrest of James Carr was Alan Herbert Abrahams and that the defendant Abrahams had numerous prior convictions.

A one-count indictment was returned by a grand jury for the United States District Court, District of Massachusetts, in the following language:

On or about January 10, 1978, at Boston, in the District of Massachusetts, ALAN HERBERT ABRAHAMS, a/k/a James A. Carr, did unlawfully, knowingly, and willfully make a false, fictitious and fraudulent statement and representation as to material facts in a matter within the jurisdiction of the United States District Court for the District of Massachusetts, in that, on that date, having been arrested pursuant to a writ of arrest issued by the United States District Court for the Western District of Michigan, said ALAN HERBERT ABRAHAMS, a/k/a James A. Carr, appeared before United States Magistrate Rudolph F. Pierce, and during that appearance, represented to the Court that: (1) his true name was James A. Carr, (2) that he had never used any other name, (3) that his date of birth was October 24, 1932 in Chicago, Illinois, and (4) that he had never been arrested or convicted of a crime, whereas in truth and fact, as he then knew, his true name was ALAN HERBERT ABRAHAMS, that he had used numerous other aliases, including Alan Abrams, Alan Albert Layne, Alan Bradford, Alan Wayne, and Herbert Alexander, that he was born on September 24, 1925 in New York, New York, and that he had been arrested in Santa Monica, California, Howell, New Jersey, Matawan, New Jersey, and New York, New York, and has been convicted of a violation of interstate transportation of a forged check, a violation of 18 U.S.C. (s) 2314 in the Southern District of New York (Criminal No. 70-774) on July 6, 1971; in violation of Title 18, United States Code, Section 1001. ⁴

As indicated hereinabove the one-count indictment contained four specific allegations of a false statement made by the defendant. At the conclusion of the trial the court found the defendant not guilty of "paragraph one" nor "paragraph three." These specifications of the indictment relate to...