United States v. Goldstein, 380.

• Decision Date: 26 June 1939
• Docket Number: No. 380.,380.
• Citation: 105 F.2d 150
• Parties: UNITED STATES v. GOLDSTEIN.
• Court: U.S. Court of Appeals — Second Circuit

105 F.2d 150 (1939)

UNITED STATES v. GOLDSTEIN.

No. 380.

Circuit Court of Appeals, Second Circuit.

June 26, 1939.

Charles H. Tuttle, of New York City, for appellant.

Rudolph Halley, Asst. U. S. Atty., of New York City (John T. Cahill, U. S. Atty., of New York City, on the brief), for the United States.

Before SWAN, CLARK, and PATTERSON, Circuit Judges.

CLARK, Circuit Judge.

This is an appeal from an order adjudging the defendant, a doctor, in contempt of court and sentencing him to six months in jail for failure to produce before a Grand Jury his records concerning his professional treatment of one Samuel Weinberg. The contempt order, issued under 28 U.S.C. A. § 385, was based upon defendant's failure to comply with a subpoena duces tecum, an order of the Grand Jury, and an order of the District Court, each of which required him to produce these records before the Grand Jury.

If, as the court found, there was a contumacious failure to comply with the subpoena and these orders, the power of the court to punish, as was done here, is clear. Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500; United States v. McGovern, 2 Cir., 60 F.2d 880, certiorari denied, 287 U.S. 650, 53 S.Ct. 96, 77 L.Ed. 561. The defendant's claim is that during the course of the proceedings his records, consisting of cards from his filing cases relating to Weinberg, were misplaced and lost. The Government concedes that had this been all that appeared, the court might properly have accepted this excuse, however unsatisfactory it was to the prosecutor. But there was much more in the case below.

The proceedings before the Grand Jury involved an investigation of claimed frauds upon insurance companies by Weinberg. Weinberg has now been indicted, charged with obtaining disability insurance after he had been informed that he was suffering from tuberculosis, and thereafter claiming and receiving disability benefits from insurance companies. During the Government's investigation, evidence was discovered showing that the defendant, Dr. Goldstein, had sent Weinberg, who is his stepbrother, to a public tuberculosis clinic in August, 1932, under a fictitious name, that he and Weinberg were informed by the clinic that Weinberg had tuberculosis, that Weinberg had applied for and received a disability insurance policy in October, 1932, and that thereafter the defendant treated Weinberg and certified to the insurance companies that Weinberg had been suffering from various ailments, but concealed facts which would enable them to discover Weinberg's true medical history. The defendant admits treatment of Weinberg from December 16, 1932, to the middle of 1937 and certification to the insurance companies as claimed, but has denied discovery of or prescription for tuberculosis in Weinberg's case.

In January, 1938, the defendant was questioned by an Assistant United States Attorney about the Weinberg matter. He then testified to various examinations of Weinberg and said that he kept a summary record of his findings and the history of the patient's illness, summarizing the case every eight, ten, or twelve visits or so, and that he had these reports in his office. Nearly a year later, on December 8, and again on December 30, 1938, the defendant was summoned before the Grand Jury, and testified that he had such records. He stated that he had commenced treating Weinberg on December 16, 1932; that he knew the date, because he had "looked it up"; that he had refreshed his memory about Weinberg's symptoms (which he then gave in some detail) from his records "in the office"; and that he had "the record of the summary of the case in general, just the symptoms and the treatment, etc., as concerns his condition." Thereafter, on January 10, 1939, the records were subpoenaed, with the statement attached...