U.S. v. Fayer, 1191

• Decision Date: 24 September 1975
• Docket Number: No. 1191,D,1191
• Parties: UNITED STATES of America, Appellant, v. Alfred FAYER, Appellee. ocket 75-1147.
• Court: U.S. Court of Appeals — Second Circuit

Page 661

523 F.2d 661

UNITED STATES of America, Appellant, v. Alfred FAYER, Appellee.

No. 1191, Docket 75-1147.

United States Court of Appeals, Second Circuit.

Argued Aug. 11, 1975.

Decided Sept. 24, 1975.

Ronald DePetris, Asst. U. S. Atty. (David G. Trager, U. S. Atty., for the Eastern District of New York, Gary A. Woodfield, David S. Gould, Brooklyn, N. Y., on the brief), for appellant.

Jack Korshin, Mineola, N. Y., for appellee.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This appeal is by the Government under 18 U.S.C. § 3731. It is from a judgment of acquittal following a bench trial ¹ in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, with special findings of fact pursuant to Fed.R.Crim.P. 23(c). The charge was endeavoring to influence a witness in violation of 18 U.S.C. § 1503. ² The Government claims that the trial judge misconstrued the statute to require that the corrupt motive of a defendant be predominant or exclusive and that the court's special findings permit reversal under 18 U.S.C. § 3731 as construed in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975). The appellee, Alfred Fayer, an attorney, claims that under Jenkins there were insufficient findings to support a verdict of guilty, so that any remand requiring further findings would result in double jeopardy by virtue of the Fifth Amendment; appellee asserts, moreover, that Judge Weinstein correctly construed the statute. Despite a very able presentation by the Government we are constrained to interpret the judge's findings as sufficiently ambiguous to prevent remand under Jenkins and therefore affirm. We are required to do so even though we consider that he very probably misconstrued the statute.

Fayer was attorney for Harry and Rose Bernstein, principals of Eastern Service Corporation, and attorney for and a director of that corporation which, with the Bernsteins, was a target of an investigation into Federal Housing Authority corruption. ³ One Edward Goodwin, an FHA appraiser who claimed to have received bribes from the Bernsteins or their corporation, had agreed to cooperate with the Government. Goodwin, equipped with a recording device, met with the Bernsteins on February 8, 1972, and with the Bernsteins and Fayer on February 9, 1972. The tape of the February 9 conversation is the basis for the charge appealed upon; it appears to us to disclose Fayer endeavoring to convince Goodwin not to go before the grand jury and not to talk. ⁴ Fayer's defense below was that he was trying to give legal advice to Goodwin (although he was also concerned with protecting the Bernsteins and Eastern Service) and in the taped conversation he expressed shock and amazement at the advice given to Goodwin by the latter's "inexperienced" and not "qualified" lawyer who had suggested that cooperation with the Government was a possible alternative for Goodwin to choose. Fayer attempted to induce Goodwin to drop his attorney in favor of Fayer's counsel below and on this appeal, whose fees chargeable to Goodwin were to be paid by the Bernsteins. Fayer further indicated approval of the Bernsteins' offer to Goodwin to work in their Florida office in the event that Goodwin lost his FHA job (which with the offer to pay attorney's fees was the foundation for the bribery count, note 2 Supra ).

Thus the essential facts include Fayer's endeavoring to influence a prospective witness, when the latter's counsel was not present, not to testify voluntarily in a grand jury investigation in which Fayer's clients were targets. The trial judge nevertheless found as follows:

I have decided that under no view of the law and the facts can I determine beyond a reasonable doubt that the defendant is guilty. There is a reasonable doubt necessarily because I must and do credit the defendant's testimony with respect to what the Bernsteins said to him. . . .

As far as Goodwin is concerned, the transcript clearly reveals in a sense he led Mr. Fayer on to believe what the Bernsteins had apparently told him and that is that Goodwin wanted legal views from Fayer with respect to whether he should continue to rely upon this attorney or whether he should get a new attorney.

The judge also refused to find that Fayer did endeavor to influence Goodwin to take the Fifth Amendment before the grand jury, saying that "what he did was attempt to . . . influence him not to go voluntarily before the grand jury." The judge added, however, "I think that's the equivalent."

It is Judge Weinstein's findings on motive, when viewed in the light of his other findings and statements, which create the critical difficulty for the Government in its appeal. Judge Weinstein found that the motive "to protect the Bernsteins" was "one of the motives, clearly" but not "the only motive"; he failed in respect to a specific question of the prosecutor to respond to whether it was "the primary motive." The judge then went on to say (mistakenly on his law, the Government asserts),

if the whole thing were set up to protect the Bernsteins rather than Goodwin, I would have found him guilty, but I do not think that, considering the whole matter, there is a very substantial doubt about whether he was not also concerned with Goodwin in good faith as a lawyer, although a lawyer acting so foolishly as to almost defy belief. But being foolish is not a crime.

It is unnecessary here to discuss 18 U.S.C. § 1503, note 2 Supra, at length. Suffice it to say under our own United States v. Cioffi, 493 F.2d 1111, 1119 (2d Cir.), Cert. denied, 419 U.S. 917, 95 S.Ct. 195, 42 L.Ed.2d 155 (1974), one who with corrupt motive advises a witness to claim the Fifth Amendment privilege violates the statute. See also Cole v. United States, 329 F.2d 437 (9th Cir.), Cert. denied, 377 U.S. 954, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964). The Government urges strenuously that analogous cases in the treason area hold that evidence of a bad motive or purpose (to give aid and comfort to the enemy) is sufficient to sustain a conviction even though a good motive is also present. Haupt v. United States, 330 U.S. 631, 641-42, 67 S.Ct. 874, 91 L.Ed. 1145 (1947); Stephan v. United States, 133 F.2d 87, 99 (6th Cir.), Cert. denied, 318 U.S. 781, 63 S.Ct. 858, 87 L.Ed. 1148 (1943). But see United States v. Cullen, 454 F.2d 386, 391-92 (7th Cir. 1971) (evidence of good motive may be admissible to offset evidence of bad motive where motive an element of crime). Again, the Government points out, even if violation of the federal law is a secondary or minor purpose of a conspiracy, federal conspiracy may nevertheless be proven. Anderson v. United States, 417 U.S. 211, 226, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974); Ingram v. United States, 360 U.S. 672, 679-80, 79 S.Ct. 1314, 3 L.Ed.2d 1503 (1959). Here, the Government says, and it is difficult for us not to agree, that the "good" motive (giving legal advice to a man who already had a lawyer, in the latter's absence) was outweighed by the "bad" motive (helping Eastern Service and the Bernsteins to cover up crimes to avoid indictment). But our problem is that the trial judge did not find this; rather he found that "under no view of the law and the facts can I determine beyond a reasonable doubt that the defendant is guilty."

The Jenkins test is whether it is "clear that the court, in its findings of fact and conclusions of law, expressly or even impliedly found against the defendant on all issues necessary to establish guilt under even the Government's formation...