U.S. v. Cohen

• Decision Date: 04 December 1980
• Docket Number: No. 79-5359,79-5359
• Citation: 631 F.2d 1223
• Parties: 7 Fed. R. Evid. Serv. 257 UNITED STATES of America, Plaintiff-Appellee, v. Leon A. COHEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1223

631 F.2d 1223

7 Fed. R. Evid. Serv. 257

UNITED STATES of America, Plaintiff-Appellee, v. Leon A. COHEN, Defendant-Appellant.

No. 79-5359.

United States Court of Appeals,

Fifth Circuit.

Dec. 4, 1980.

Robert Eugene Smith, Encino, Cal., for defendant-appellant.

Gerrilyn G. Brill, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, CHARLES CLARK and THOMAS A. CLARK, Circuit Judges.

THOMAS A. CLARK, Circuit Judge:

Leon Cohen appeals from his conviction under three counts of an indictment charging him with impersonating a federal official, giving a false statement in a matter within a federal agency's jurisdiction, and conspiring to commit the impersonation offense, 18 U.S.C. §§ 912, 1001, and 371, respectively. Throughout the trial Cohen's participation in the impersonation scheme was not contested; his theory of defense was duress, that his co-conspirator forced him to cooperate. On appeal he argues that the lower court erred (1) in refusing to direct a verdict of acquittal on the impersonation count on the ground that the indictment was insufficient to state an offense under the statute; (2) in excluding testimony of out-of-court statements said to be admissible under the state-of-mind exception to the hearsay rule; (3) in refusing to confer immunity to prospective defense witnesses who indicated an unwillingness to testify to certain matters; (4) in refusing to charge or permit the defense to comment upon the inference that might be drawn from the absence at trial of the victim of the scheme; and (5) in charging the elements of the defense of duress. We affirm for the reasons that follow.

Cohen argues first that the impersonation count of the indictment is insufficient because it twice alleges the same element, that he pretended to be a federal official. He correctly notes the conjunctive elements of the offense: whoever falsely assumes or pretends to be an officer acting under the authority of the United States, and acts as such, is guilty of a felony. 18 U.S.C. § 912. Cohen argues that if the "acts as such" element is not surplusage, it must be understood to require something more than merely "assuming or pretending," and therefore that any indictment which alleges that the accused "acted as such" by committing acts that are in keeping with the pretended character fails to allege anything more than that he assumed or pretended. Cf. United States v. Rosser, 528 F.2d 652, 657 (D.C. Cir. 1976) (dictum that act that completes the crime "must be something more than merely an act in keeping with the falsely assumed character"). Such an expansive reading of the words "assumes or pretends," however, foreclosing any allegation that the accused acted as such, would undermine the clear purpose of the statute. The subject of the statute is both a state of mind and of action. An indictment sufficiently describes the first of these elements when it alleges that the accused falsely assumed and pretended with intent to defraud, and the second when it alleges any overt act consistent with the assumed character. The indictment in this case specifically alleged that Cohen "acted as said Michael J. Egan by signing in at the Atlanta Federal Penitentiary as M. J. Egan, Jr. and representing to Leslie T. Atkinson, an inmate at the penitentiary that he was the Associate Attorney General ...." R. 1. This is sufficient to describe "acting" even though it also describes "assuming and pretending."

Cohen next complains that the lower court erred in excluding evidence of out-of-court conversations. Witnesses were called by the defense for the purpose of corroborating Cohen's later direct testimony concerning alleged threats by Galkin, the co-conspirator. They were asked to relate the substance of out-of-court conversations they had had with Cohen at the time he was supposed to have been threatened, and some testimony was admitted. They would have testified to comments made by Cohen to the effect that Galkin was threatening him. ¹ Appellant seeks to stretch the limited scope of admissibility under F.R.E. 803(3). That rule by its own terms excepts from the ban on hearsay such statements as might have been made by Cohen of his then existing state of mind or emotion, but expressly excludes from the operation of the rule a statement of belief to prove the fact believed. ² The rule thus permitted the witnesses to relate any out-of-court statements Cohen had made to them to the effect that he was scared, anxious, sad, or in any other state reflecting his then existing mental or emotional condition. And this for the purpose of proving the truth of the matter asserted in the statement-that Cohen actually was afraid or distraught-because the preamble to F.R.E. 803 provides that such testimony "is not excluded by the hearsay rule." But the state-of-mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed that would have induced the state of mind. If the reservation in the text of the rule is to have any effect, it must be understood to narrowly limit those admissible statements to declarations of condition-"I'm scared"-and not belief-"I'm scared because Galkin threatened me." Cohen's witnesses were permitted to relate any direct statements he had made concerning his state of mind but were prevented only from testifying as to his statements of belief-that he believed that Galkin was threatening him. There was no error.

Cohen also complains that his sixth amendment compulsory process rights and fifth amendment equal protection and due process rights were denied because use immunity was not granted to the witnesses Atkinson and Lynott. He bases his contention on the fact that the Government immunized one of their primary witnesses, Tipton. Cohen did not seek such immunity in the trial court for Atkinson nor do we comprehend any conceivable prejudice that would have resulted had such a request been made and denied. Atkinson, the intended victim of the impersonation, had to know Cohen only in his pretended character, and therefore could not have been familiar with Galkin's alleged threats. Cohen also failed to demonstrate that the grant of immunity to Lynott was required to preserve fundamental fairness in the trial.

Appellant relies on U. S. v. Morrison, 535 F.2d 223, 229 (3rd Cir. 1976), where the court refers to use immunity for a defendant's witness as follows:

There are circumstances under which it appears due process may demand that the Government request use immunity for a defendant's witness. See dicta in U. S. v. Leonard, 161 U.S.App.D.C. 36, 494 F.2d 955, 985 n. 79 (1974) (concurring and dissenting opinion of Bazelon, C. J.); and cf. Earl v. U. S., 124 U.S.App.D.C. 77, 361 F.2d 531, 534 n. 1 (1966) (Burger, J.). Such a circumstance was created in this case when prosecutorial misconduct caused the defendant's principal witness to withhold out of fear of self-incrimination testimony which would otherwise allegedly have been available to the defendant.

In Morrison there was a clear showing of prosecutorial misconduct. ³ Here there is shown no misconduct whatsoever on the part of the U.S. Attorney. Lynott did testify at length about discussions between himself and Galkin in which Galkin was asking Lynott to help him locate someone who would kill Cohen. Lynott refused to testify, upon advice of his personal counsel who was present at the Cohen trial, with respect to Galkin's alleged past activities in trafficking in drugs. Defendant's purpose in seeking admission of that testimony was to impeach Galkin, who had earlier testified that he had not been involved in criminal activity with respect to contraband drugs.

The defendant sought to show by Lynott that Galkin had been involved in drug law violations as a means of attacking Galkin's credibility. Rule 608(b) defines the limits of such testimony:

Rule 608. Evidence of Character and...