United States v. Brecher, 318

• Decision Date: 01 April 1957
• Docket Number: No. 318,Docket 24438.,318
• Citation: 242 F.2d 642
• Parties: UNITED STATES of America, Appellee, v. Leib BRECHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

242 F.2d 642 (1957)

UNITED STATES of America, Appellee, v. Leib BRECHER, Defendant-Appellant.

No. 318, Docket 24438.

United States Court of Appeals Second Circuit.

Argued March 8, 1957.

Decided April 1, 1957.

Jerome Lewis, New York City, for defendant-appellant.

Paul W. Williams, U. S. Atty. for Southern Dist. of New York, New York City (George C. Mantzoros, Adelbert C. Matthews, Jr., Robert Kirtland, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.

GALSTON, District Judge.

Appellant was convicted, upon a verdict of guilty rendered by a jury, of the crime of conspiracy to export gold bullion, in violation of Section 95a, Title 12 U.S.C. A.

The indictment contained two counts, the first charging conspiracy to export gold bullion, and the second charging the substantive count of possession of gold bullion. Named as co-defendants were one Jack Joseph (both counts) and Greta Neiman (first count). Two others, Ralph Rothenberg and Frank Joseph, were named as co-conspirators, but they were not indicted.

Only appellant stood trial, co-defendants Neiman and Joseph having pleaded guilty. The possession count was dismissed and the jury disagreed on the remaining conspiracy count. Upon retrial, the appellant was found guilty, convicted and sentenced on the conspiracy count to a term of two years and $500 fine.

In addition to the appeal there is presented, on the alleged ground of newly discovered evidence, an application for an order granting a new trial, or in the alternative, remanding the case to the District Court to permit the appellant to make the motion and be heard thereon in that court.

Greta Neiman testified, as a Government witness, that in November, 1951, appellant asked her if she knew anybody who would be interested in taking a trip to Europe to take over some gold. She introduced her cousin, Ralph Rothenberg, to appellant, and was present at meetings between Rothenberg and appellant, and also at meetings between Rothenberg, appellant and Jack Joseph, at which meetings the three men discussed plans to have Rothenberg smuggle gold out of the country, hidden in an automobile. Joseph testified that in December of 1951 he discussed with appellant "shipping an automobile with gold to France." Appellant told him that he (appellant) had a man who would take the car with the gold to Europe. Joseph went to appellant's apartment and was introduced to Rothenberg, and to Greta Neiman. Joseph accompanied Rothenberg to purchase an automobile, and furnished the down payment for the car which was registered in Rothenberg's name. Joseph further testified that in the next three days he received about a thousand ounces of gold in several packages from appellant, of which he paid for eight hundred ounces; that the rest belonged to appellant, and that he and appellant had agreed they would ship three thousand ounces of gold and share the profit equally between them. Joseph also stated he received additional packages of gold from one Kessler. He also testified that the gold "were plates and bars," in different forms and sizes. Joseph marked the various packages of gold for identification purposes. According to his testimony Joseph put some of the packages of gold he had received in the car purchased in Rothenberg's name, drove to a parking lot and was in the process of secreting the gold behind a panel in the car when he was arrested by the police. Appellant was not present at the time the arrest occurred, on January 9, 1952. No license had been issued to permit the export of gold by any of the conspirators.

Rothenberg testified to the conversation with Greta Neiman about his taking gold to Europe, meeting Brecher and Joseph, and arranging with Joseph to purchase the car.

With respect to the application for a new trial, the new evidence relied upon is directed to the testimony of Greta Neiman that no promises were made to her by anyone connected with the Government that if she cooperated and testified against appellant a suspended sentence would be recommended.

In opposition the Government has submitted an affidavit of Greta Neiman's attorney that the former Assistant United States Attorney who was in charge of the case during the first trial stated to Neiman's attorney that he would not urge the court to impose a jail sentence or contest any plea for a suspended sentence. The affidavit also states the witness Neiman was not present during the conversation with the Assistant United States Attorney, and that she was never told about it. Furthermore, the Assistant United States Attorney trying the Government's case on the second trial states in his affidavit, in effect, that during the trial he had no knowledge of the statement made by the former Assistant to Neiman's attorney.

It seems somewhat difficult to believe that Greta Neiman's attorney would say nothing to her about the attitude of the Government. Admittedly she was very much concerned about the possibility of having to go to jail. Taking the Bernstein and Mantzoros affidavits at face value, if Neiman testified with no knowledge of the conversation between her attorney and the Assistant United States Attorney, the newly discovered evidence would have no bearing on her credibility nor the weight to be attached to...