U.S. v. Wolfish

• Decision Date: 12 January 1976
• Docket Number: D,No. 1167,1167
• Citation: 525 F.2d 457
• Parties: UNITED STATES of America, Appellee, v. Louis R. WOLFISH, Defendant-Appellant. ocket 75--1138.
• Court: U.S. Court of Appeals — Second Circuit

Page 457

525 F.2d 457

UNITED STATES of America, Appellee, v. Louis R. WOLFISH, Defendant-Appellant.

No. 1167, Docket 75--1138.

United States Court of Appeals Second Circuit.

Argued June 23, 1975.

Decided Aug. 14, 1975.

Certiorari Denied Jan. 12, 1976.

See 96 S.Ct. 794.

Steven A. Schatten, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., Southern District of New York, Allen R. Bentley, Angus Macbeth, John C. Sabetta, Asst. U.S. Attys., of counsel), for appellee.

Stanley H. Fischer, New York City, for defendant-appellant.

Before CLARK, Associate Justice, ^* and MANSFIELD and MULLIGAN, Circuit Judges.

PER CURIAM:

Louis R. Wolfish appeals his jury conviction on three counts of devising a scheme to defraud the Bankers Security Life Insurance Society out of approximately $200,000 in life insurance proceeds through the use of the mails in violation of 18 U.S.C. § 1341. He was sentenced concurrently to three terms of three and one half years and made eligible for parole in one year under 18 U.S.C. § 4208(a)(1). We affirm.

Although an extended narrative of appellant's dabbling in fraud might prove interesting to devotees of crime fiction, the briefest of backgrounds will suffice for judicial purposes. This opinion has already been made lengthy enough by the necessity of dealing with the long list of wholly frivolous issues raised by appellant. The gist of the offense is that in the fall of 1971, a forged death certificate which purported to show that Wolfish had died in Jerusalem on January 7, 1971, was fraudulently submitted to Bankers Life. Wolfish is an ordained rabbi who once practiced law in the United States. After having been disbarred in 1969, he moved to Israel with his wife, Marcia, and their children but, throughout the years 1971 and 1972, frequently travelled back to the States.

On two occasions in January of 1971, appellant--without identifying himself--visited the Israeli consulate in New York City to have translations of Israeli death certificates authenticated. On the first occasion, he brought with him copies of a forged certificate of his own death and obtained an authentication of the accuracy of the translation; on the second occasion, he brought the original of a genuine certificate of his mother's death on August 11, 1970, in Jerusalem, and on that occasion, in addition to an authentication of the translation, obtained an official stamp which implied the legal validity of the contents of that document. Subsequently, Wolfish substituted the forged certificate for the genuine document and had an Israeli notary produce nine copies of the 'new' death certificate. He then requested Bankers Life to send claim forms for three insurance policies on his life, and the Company did so. (Count One). He then submitted these forms, purportedly signed by his wife, with the forged certificates, seeking the proceeds of the policies.

In December of 1971, Bankers Life mailed a check for approximately $180,000 on two of the policies directly to Mrs. Wolfish at an address in the United States. (Count Two). A separate check on the third policy for $20,000 was sent in January of 1972 to their local agent for hand delivery (Count Three), and this proved the undoing of appellant. When no Marcia Wolfish was found at the address on the claim forms, an investigation was begun which led to the discovery of the forgeries. Contacts between United States law enforcement agents and Israeli authorities, in turn, led to a search of Wolfish's Jerusalem apartment on August 9, 1972, and the seizure of several documents by Israeli police including copies of Wolfish's death certificate, the original of his handwritten death certificate, the death certificate of Wolfish's mother which had been tampered with, and two boxes of red notarial seals.

Following the search of his apartment, Wolfish left Israel and was a fugitive until February 14, 1974 when he surrendered. It was learned at trial that sometime during the summer of 1973, he became the rabbi of a synagogue in Passaic, New Jersey, using the name Haim Whale. Testimony at trial showed that the Jewish form of appellant's last name is Leviathan which is translated into English as 'whale'; and the Hebrew translation of 'Louis R.' is 'Eliezer Haim'.

I.

The first assignment of error raises objection to what appears to be an unfortunate slip of the trial judge's tongue when, in his charge to the jury, he said:

The burden of proving guilt beyond a reasonable doubt never shifts. It remains upon the Government throughout the trial. The law never imposes upon a defendant in a criminal case the burden of calling any witnesses or producing any evidence. You may draw no unreasonable inferences against the defendant because he did not take the stand and testify.

In addition, you may not speculate as to why the defendant chooses not to testify nor may you speculate as to what the defendant might have stated had he chosen to testify. In every criminal case, there is a Constitutional rule which every defendant has the right to rely upon. It is the rule that no defendant is compelled to take the witness stand. It is the prosecution which must prove a defendant guilty as charged beyond a reasonable doubt.

. . . The defendant is presumed to be not guilty of the accusations contained in the indictment and this presumption continues not only throughout the trial but even during your deliberations in the jury room. (Emphasis supplied)

It appears to us that the court intended to say that no 'unfavorable' inferences might be drawn from the defendant's failure to take the stand. It is true that one could conclude from the sentence as delivered that the jury might draw unfavorable inferences against the defendant because of his failure to testify if 'reasonable'. It is manifest, however, that taken as a whole the intent of the quotation is clear, and its overall meaning was that no adverse inferences could be drawn by reason of Wolfish's failure to testify. Moreover, Wolfish's experienced trial counsel never objected during the trial and raised the point for the first time on appeal under a claim of plain error. Indeed, the slip was not discovered until the Court Reporter wrote up the transcript after the appeal had been noted.

The question, therefore, is whether such a slip of the tongue constitutes plain error. We recognize that an inadvertence may have as grave a consequence as any error, but have concluded that under the circumstances here--in light of the clarity of the overall language and the overwhelming proof of guilt--the error was harmless.

II.

The second claim of error relates to the sufficiency of the evidence. We find abundant evidence that Wolfish knowingly caused the mails to be used in his scheme, for the mailing by the company of the claim forms and checks actually implemented the plan and brought it to fruition. In addition, the evidence reveals that Wolfish filed change of address forms that caused their mail to be forwarded from his former home in Spring Valley, New York, to his brother-in-law's home in Astoria, New York, where he was staying during 1971 and 1972. Finally, the mails between Israel and the United States were used in obtaining translations of the forged death certificate from a notary in Jerusalem.

III.

Appellant next accuses the prosecutor of making an inflammatory attack on appellant's religious calling in his summation. As noted before, Wolfish was an ordained rabbi. At one point, the prosecutor referred to Moses and one of the Ten Commandments--'Honor Thy Father and Mother'. He then reminded the jury that the death certificate of Wolfish's mother had been used in the scheme and then suggested that the jury 'will see the attitude toward those Ten Commandments exhibited by this Rabbi Wolfish'. Defense counsel objected on the ground of prejudice and moved for a mistrial, which was denied. When seen in perspective, this appears to us to be nothing more than fair comment by the prosecutor.

Wolfish's counsel in his summation had accused the Government of 'framing' its identification of Wolfish and sought to explain much of Wolfish's conduct on the basis of religious activities. For example, counsel argued that the change of Wolfish's name to Haim Whale was similar to the use of names like Sister Elizabeth by nuns 'or even imagine the Pope, Pope Pius, that is not his name but that is his religious name.' We find no error here. See United States v. deAngelis, 490 F.2d 1004, 1012 (2d Cir. 1974).

IV.

Appellant accuses the Government of bad faith in claiming readiness for trial and then moving for the production of handwriting exemplars. Appellant tags the notice of readiness under Rules Regarding Prompt Disposition of Criminal Cases as false and a sham. On July 8, 1974, the Government announced that it was prepared to go to trial on July 22nd, but the trial was postponed when Judge Bauman resigned from the bench. The case was transferred to Judge Pierce who set the trial for January 6, 1975, and gave the parties until August 30, 1974, to file additional motions. On August 21st, the Government moved for handwriting exemplars and, on October 3, 1974, they were furnished by Wolfish without the presence of his counsel.

Appellant claims that this conduct by the Government violated Rule 4 of the district court's Rules Regarding Prompt Disposition of Criminal Cases. While the Rule provides that the Government must be ready within six months from the date of arrest, the postponement here was not at the instance of the Government but solely because of the resignation of Judge Bauman. This delay is not chargeable to the Government, and since the exemplars were sought in ample time before the delayed trial date, we can see no error.

V.

Appellant next complains of the testimony of the Government's hand writing expert from Israel, Vadar Tamir. Mrs. Tamir gave her opinion that Wolfish had disguised his handwriting in giving court-ordered exemplars. It is now argued that...