United States v. Dorfman

Decision Date29 November 1972
Docket NumberDocket 72-1574.,No. 235,235
Citation470 F.2d 246
PartiesUNITED STATES of America, Appellee, v. Allen DORFMAN, Appellant.
CourtU.S. Court of Appeals — Second Circuit

Richard J. Burke, New York City (Myron J. Greene, New York City, on the brief), for appellant.

Richard Ben-Veniste, Asst. U. S. Atty. (Whitney North Seymour, U. S. Atty., Michael B. Mukasey, John W. Nields, Jr., Asst. U. S. Attys., on the brief), for appellee.

Before MOORE, HAYS and MULLIGAN, Circuit Judges.

Certiorari Dismissed April 12, 1973. See 93 S.Ct. 1561.

HAYS, Circuit Judge:

This is an appeal from a judgment of conviction for conspiracy to violate § 1954 by accepting a bribe for influencing the operations of an employee pension plan, and § 1343 by using interstate wire facilities for the purpose of fraud, and on five substantive counts of violation of § 1343, entered in the United States District Court for the Southern District of New York on a verdict of a jury after a two week trial. We affirm.

Appellant was special consultant to the Central States, Southeast and Southwest Areas, Pension Fund of the International Brotherhood of Teamsters. In 1967, shortly after Dorfman was designated special consultant, the Pension Fund made a loan of $1,500,000 to Neisco, a textile manufacturing firm controlled by one George Horvath. The Government claimed that this loan was a result of a $55,000 bribe by Horvath to Dorfman and that in return for the bribe, Dorfman agreed not only to arrange for the loan but that he would use his influence to cause the Pension Fund to administer the loan permissively. The jury found Dorfman guilty of the conspiracy to violate §§ 1954 and 1343 and of five substantive counts of violation of § 1343.

Appellant contends that the testimony of Samuel Rubin, a Government witness, with respect to two conversations he had with Horvath in the summer of 1967 should have been excluded as hearsay. The first conversation occurred in June when Horvath asked Rubin to sign a check drawn on the account of Mt. Clemens Industries Inc., of which Rubin was vice-president, stating that the money was to be used to purchase a certain Swiss corporation. Rubin asked Horvath if the Swiss transaction was connected with the Neisco Pension Fund Loan request and whether it was to help get the loan approved by "greasing the skids." Rubin testified that Horvath replied in the affirmative. The second conversation occurred in July when Horvath told Rubin that $55,000 out of the Swiss transaction had been used to pay the appellant.

The defense had attempted to show that Horvath had motives of personal revenge for falsely implicating Dorfman. These alleged motives were based upon events which occurred after Horvath's statements to Rubin. Rubin's testimony was therefore admissible to show that Horvath had implicated Dorfman before the time of the events providing the basis for the alleged motives for falsification. This exception to the hearsay rule for "prior consistent statements" is well established. See United States v. DiLorenzo, 429 F.2d 216, 220 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); United States v. Grunewald, 233 F.2d 556, 566 (2d Cir. 1956), rev'd on other grounds, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Proposed Federal Rules of Evidence, 801(d)(1) (B) (adopted on November 20, 1972).

Rubin's testimony as to Horvath's statements to him was also admissible...

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18 cases
  • United States v. Isaacs
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 19, 1974
    ...actual monetary or property loss. See, e. g., United States v. Dorfman, S.D.N.Y., 335 F.Supp. 675, 679, aff'd on other grounds, 2 Cir., 470 F.2d 246; United States v. Faser, E.D.La., 303 F.Supp. 380, 384; Bradford v. United States, 5 Cir., 129 F.2d 274, 276, cert. denied 317 U.S. 683, 63 S.......
  • United States v. Narciso
    • United States
    • U.S. District Court — Western District of Michigan
    • December 19, 1977
    ...1318 (S.D.N.Y.1976); U. S. v. Smith, 405 F.Supp. 144 (E.D.Pa.1975); U. S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y. 1971), aff'd. 470 F.2d 246 (2d Cir. 1972). This approach is bottomed on F.R.Cr.P. 16(a)(2) which provides that "statements made by government witnesses or prospective government wit......
  • Bendorf v. Volkswagenwerk Aktiengeselischaft
    • United States
    • Court of Appeals of New Mexico
    • April 5, 1977
    ...motive was present for the plaintiff to deny any wrong doing. United States v. Greene, 497 F.2d 1068 (7th Cir. 1974); United States v. Dorfman, 470 F.2d 246 (2d Cir. 1972); see Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56 (2d Cir. 1972); and (3) the prior consistent statement......
  • United States v. Pastor
    • United States
    • U.S. District Court — Southern District of New York
    • May 26, 1976
    ...Feinberg, 502 F.2d 1180 (1974). The Court cited with approval, inter alia, U. S. v. Dorfman, 53 F.R.D. 477 (S.D.N.Y.1971), aff'd, 470 F.2d 246 (2d Cir. 1972), in which Judge Gurfein had refused to allow pretrial discovery of witnesses' written statements which purportedly contained oral sta......
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