United States v. Bergman

• Decision Date: 19 January 1966
• Docket Number: Docket 29875.,No. 167,167
• Citation: 354 F.2d 931
• Parties: UNITED STATES of America, Appellee, v. George A. BERGMAN, Jr., Appellant.
• Court: U.S. Court of Appeals — Second Circuit

354 F.2d 931 (1966)

UNITED STATES of America, Appellee, v. George A. BERGMAN, Jr., Appellant.

No. 167, Docket 29875.

United States Court of Appeals Second Circuit.

Argued November 18, 1965.

Decided January 19, 1966.

Charles J. Fanning, Pierre N. Leval, John E. Sprizzo, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty. for Southern District of New York, for appellee.

Arthur H. Christy, Carl F. Trunk, Jr., Christy, Bauman & Christy, New York City, for appellant.

Before MEDINA, WATERMAN and SMITH, Circuit Judges.

SMITH, Circuit Judge:

George A. Bergman, Jr., sentenced to concurrent one-year terms upon conviction on six counts of a seven-count indictment charging perjury in violation of 18 U.S.C. 1621, after trial to the jury in the United States District Court for the Southern District of New York, Charles M. Metzner, District Judge, appeals. We find no reversible error and affirm the judgment.

Bergman, the Post Office Transportation Manager for New York State from 1952 to 1961, when he was promoted to Deputy Regional Director for the New York Region, serving until his resignation in April 1962, was called to testify in September and November 1963 before Grand Juries in the United States District Court for the Southern District of New York. The Grand Juries were then investigating allegations of bribery, graft and other corruption involving postal employees and mail contractors in the New York region.

The Grand Jury testimony of Bergman which the jury found false and perjurious was in summary: Count 1: Denying the receipts of kickbacks and asserting that his income during 1959-1962 was derived solely from Post Office employment; Count 2: Denying that one Molloy interceded for one Doran with regard to Post Office contracts and denying any but the most casual relations with Molloy; Count 4: Asserting that he had paid off a loan to the Atlantic Bank of New York out of his salary; Count 5: Denying again the receipt of any other income except Post Office salary in 1960; Count 6: Denying ever having received, directly or indirectly from Doran "any money or thing of value"; Count 7: Denying that he received $2,000 from one Frankel.

Since the sentences on each count were identical and concurrent the court need not consider other counts so long as appellant was properly convicted on one. Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); United States v. Benjamin, 2 Cir., 1964, 328 F.2d 854, cert. denied 377 U.S. 953, 84 S.Ct. 1631, 12 L.Ed.2d 497; United States v. Mont, 2 Cir., 306 F.2d 412, cert. denied 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed. 2d 272, (1962).

Appellant contends that there is insufficient evidence of any kickbacks or things of value paid to him. Count 1, in the first of two specifications, charges perjury in the answer to the question, "Q. So to sum it up, then, you have at no time ever accepted any kickbacks of any kind? A. No, sir." The evidence on this point is that Molloy and his wife received over $11,000 from Doran. Molloy testified that he spent this, or part of it, as agreed by Doran, Bergman, and himself, to promote appellant's candidacy for the post of Regional Director. When Molloy asked about payment for expenses, appellant turned to Doran, and Doran paid.

The kickback need not be paid directly to appellant. Here it was applied for his benefit and at his request. And there was evidence from which the jury could have concluded that Bergman knew this was a kickback when he denied accepting any. Appellant also suggests that he was not involved in the January, 1961 strike contract between Doran and the Post Office, which greatly benefited Doran, and which allegedly supplied the "source of income or gain" out of which the kickback came. But even if the contract were fair and reasonable, and negotiated by others than Bergman, there still could be a kickback. And the jury certainly could believe that Bergman did approve the total contract price; the fact that his subordinate would have approved it anyway does not make any difference.

Appellant also claims that there was insufficient evidence on Count 6. Bergman denied receiving anything back from Doran, his company, or indirectly from any company. And when asked, "Q. I'd like to make it as broad as I possibly can, so there's no misunderstanding. The Grand Jury wants to know whether you had any money or thing of value given to you or on your behalf from anybody connected with Doran in any way at any time," Bergman replied, "No." The Molloy transaction was again the proof offered. Since the question refers to "someone on your behalf" there is not even a problem relating to the payments to Bergman; they were for his benefit and on his behalf.

Appellant argues there was a failure of proof concerning whether he committed perjury when he denied having outside sources of income from 1959 to 1962 (Count 1, second specification) and in 1960 (Count 5). The government relied on extrajudicial admissions by appellant, on separate occasions to each of two postal inspectors, that he had non-salary income and therefore could not stand an examination of his affairs; and on the appearance of $37,900 from October 1960 to February 1961, in appellant's possession, despite indications of insolvency before this.

Appellant's position is that proof of falsity in this perjury case is within the rule of Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945) and Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118 (1926), see United States v. Marchisio, 344 F.2d 653, 664-665 (2 Cir. 1965), requiring two witnesses or one witness plus corroborating circumstances. The government relies on United States v. Collins, 272 F.2d 650 (2 Cir. 1959), cert. den., 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960), which permits proof based upon circumstantial evidence of a highly reliable order. The evidence in Collins was expert testimony that a document was typed with a machine not available until 1956. Defendant had said that the document so typed was signed in 1953. Thus there was in Collins proof of a fact absolutely inconsistent with defendant's prior statement. This proof was of a higher order than direct oral testimony of the falsity of the statement; it would be more reliable, for instance, than oral testimony that the defendant was seen signing the document in 1953. And see United States v. Wood, 14 Pet. 430, 10 L.Ed. 527...