U.S. v. Seltzer

• Decision Date: 07 July 1986
• Docket Number: No. 85-3449,85-3449
• Citation: 794 F.2d 1114
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward SELTZER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1114

794 F.2d 1114

UNITED STATES of America, Plaintiff-Appellee, v. Edward SELTZER, Defendant-Appellant.

No. 85-3449.

United States Court of Appeals, Sixth Circuit.

Argued April 10, 1986.

Decided July 7, 1986.

Stanley S. Arkin (argued), Stanley S. Arkin, P.C., New York City, for defendant-appellant.

Robert J. Becker (argued), Sp. Atty., Cleveland, Ohio, Bernard A. Smith, Westlakem, Ohio, for plaintiff-appellee.

Before KEITH and MARTIN, Circuit Judges, and WEICK, Senior Circuit Judge.

WEICK, Senior Circuit Judge.

Defendant-Appellant Edward Seltzer has appealed to this court from a Judgment and Sentence entered in the United States District Court for the Northern District of Ohio, Eastern Division, on the verdict of a jury finding him guilty of perjuring himself before the grand jury in violation of Title 18, Section 1623, United States Code, as charged in Counts III, IV, V, and VI of the superseding indictment.

I.

A.

In May of 1981 the grand jury in the United States District Court for the Northern District of Ohio, Eastern Division, was investigating possible crimes committed against the United States by one Reuben Sturman including crimes related to the Federal Income Tax Law. Appellant Seltzer had previously been an employee of Sturman. Seltzer was called before the grand jury as a witness on May 21, 1981.

Seltzer was informed of his rights and upon being questioned refused to answer on the grounds that his answers might tend to incriminate him. The Special U.S. Attorney questioning appellant then asked the Grand Jury Foreman to read an Order, signed by U.S. District Judge John Manos, compelling appellant, pursuant to 18 U.S.C. Secs. 6002 et seq., to "give testimony and provide other information which [appellant] refuses to give or provide on the basis of his privilege against self incrimination as to all matters about which [appellant] may be interrogated before said Grand Jury." Joint Appendix ("Jt.App.") at 56. ¹

Appellant discussed the matter with his attorney and upon returning to the grand jury stated that he understood that pursuant to the order he had been granted use immunity and that nothing he said before the grand jury could be used against him. The Special U.S. Attorney replied that appellant was correct, but that if he failed to testify truthfully before the grand jury he could be prosecuted for perjury. Seltzer answered that he understood and that he had every intention of testifying truthfully.

Whereupon, the questioning continued, and Seltzer testified, inter alia, that he had never used any names other than Edward Seltzer either personally or in business; that he did not know a Sheldon Silverstone, International Bancorpest, or Merchants and Shipowners Bank; and, that, other than certain conversations he had with Sturman's attorney, he had nothing to do with certain wire transfers of money from Swiss banks and/or Merchants and Shipowners Bank and International Bancorpest into accounts in the names of International Book Sales and/or World Wide Publications, two Sturman-controlled companies.

Subsequent to appellant's 1981 appearance before the grand jury he wrote a letter to its foreman admitting he had not told the truth and thus had perjured himself. Specifically, appellant wrote that he had refused to answer the question whether he believed that Reuben Sturman was the source of money that appellant had received in Switzerland. He wrote that he had speculated that Sturman was the source of the money but never inquired as to who was the actual investor.

On April 7, 1983, appellant was again called before a Federal Grand Jury conducting an investigation into possible Federal Income Tax violations by Reuben Sturman. ² Seltzer was again informed of his rights including his right to review his prior testimony before the grand jury and either elaborate on, clarify, or change that prior testimony.

Appellant consulted with his attorney. He then responded that he was not sure whether or not he had signed three certain checks purportedly signed by him and alluded to in his prior testimony. Appellant was again informed that the grant of use immunity did not protect him from prosecution for perjury in the grand jury.

Appellant then testified, in part, that he had never used any name other than his own name in any business or personal transactions; he had never used the name Morton Weiss; he did not recall signing Morton Weiss' name to a wire transfer order which transferred $115,000 from the United California Bank ("UCB") to the Merchants and Shipowners Bank.

Appellant testified that he did not recall ever seeing the wire transfer order. He testified that he would not say he did not sign it and that it was possible that he did sign it. Seltzer also testified that he did not recall ever being in the UCB in London.

Appellant was asked to compare the signature on the wire transfer order with handwriting exemplars he had given to the Internal Revenue Service signing the name "Morton Weiss." He concluded that the signature on the wire transfer was his. After admitting he had signed the document appellant still testified that he did not recall being in the UCB in London.

Appellant testified that he had no independent recollection of taking the $115,000 into the UCB in London and that he did not know who had given him the money to transfer to the United States. Seltzer testified that he might have signed Weiss' name on other papers; that it was possible he did this of his own volition; that it was not likely someone else had directed him to do so; that he had never asked Weiss if he could sign Weiss' name; and, that he did not know why he had done so.

Substantially the same course of testimony followed with respect to two more wire transfer orders, one signed with the name "Ralph Stelzer" and transferring $58,000 from the UCB in London to the International Bancorpest account at the UCB of New York; the other transfer in the amount of $25,000 signed by "Ralph Stelzer" and transferring the money from the UCB in London into the International Bancorpest account at the UCB in New York.

Appellant testified that he had no recollection where he got this money. He did not know why the money was sent back to the United States. He also did not recall ever having made any transactions at the UCB in London.

B.

On December 13, 1984, a two count indictment was returned against appellant in the United States District Court for the Northern District of Ohio charging him with one count of perjury in his 1981 grand jury appearance and one count of perjury in his 1983 grand jury appearance. Appellant moved to dismiss the indictment on the grounds, inter alia, that the grand jury's use of his immunized 1981 testimony to indict for the alleged 1983 perjury and use of his 1983 immunized testimony to indict for the alleged 1981 perjury violated the fifth amendment to the Constitution of the United States and the federal immunity statute, 18 U.S.C. Secs. 6002 et seq.

Subsequently, the grand jury returned a six count superseding indictment which charged appellant with two counts of perjury at the 1981 appearance and four counts at the 1983 appearance. Appellant renewed his Motion to Dismiss. By means of a Memorandum Opinion dated March 26, 1985, District Judge David D. Dowd granted appellant's motion with respect to counts one and two and dismissed those counts. The motion was denied as to counts three through six relating to the 1983 appearance. Judge Dowd also ruled, over appellant's objection, that the prosecution would be permitted to introduce at trial appellant's 1981 immunized testimony, to the extent relevant, for the purpose of proving the 1983 offense. ³

At appellant's trial before a jury the government read transcripts of appellant's grand jury appearances into the record and attempted to portray appellant's grand jury testimony with respect to International Book Sales (of which appellant was the designated president) as highly incredible. This was particularly the case with respect to testimony that appellant met with Sturman's attorney and was extended a $200,000 line of credit on the spot with no written agreement, no interest charged, and no time specified for repayment. The alleged consideration was a 50% future interest in a business not yet established. Testimony was also read into the record establishing that appellant drew on most of the $200,000 line of credit, never repaid it, and was never asked to repay it. When International Book Sales ("IBS") folded, its remaining inventory was turned over to another company run by appellant's former employer, Reuben Sturman.

Appellant's grand jury testimony indicated that although he was the sole officer of IBS he did not know if stock was ever issued. Appellant did not know why other related corporations were formed with his former employer's input, what their names stood for, what his relationship was with them, or why names were changed.

Appellant testified before the grand jury that he discussed business with Sturman and that Sturman offered him a consultant position when IBS folded, but appellant denied ever forming any opinion as to whether Sturman had provided financing for IBS. It is with respect to this testimony that Seltzer later wrote to the grand jury foreman admitting he had not told the truth while testifying before the grand jury.

The government introduced evidence of bank documents which showed large amounts of money derived from Switzerland and England deposited in IBS accounts as capital and loans. These included three wire transfer orders signed by "Morton Weiss" and "Ralph Stelzer" sending $197,000 in American currency from London into Sturman accounts including $27,000 into IBS. Handwriting exemplars obtained from appellant showed conclusively that he had forged those signatures.

The defense attempted to portray appellant as a cooperative grand jury witness who understood his obligation to tell the truth and had no...