United States v. Kahaner

Citation317 F.2d 459
Decision Date25 April 1963
Docket NumberNo. 253,Docket 27784.,253
PartiesUNITED STATES of America, Appellee, v. Elliott KAHANER, Antonio Corallo and James Vincent Keogh, Appellants.
CourtU.S. Court of Appeals — Second Circuit

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Murray I. Gurfein, New York City (John P. McGrath, New York City, Henry G. Singer, Brooklyn, N. Y., Orrin G. Judd, Jacob W. Heller, New York City, of counsel), for appellant James Vincent Keogh.

William W. Kleinman, Eugene Gold, Brooklyn, N. Y., for appellant Elliott Kahaner.

Michael P. Direnzo, New York City, for appellant Antonio Corallo.

William G. Hundley and John F. Lally, Attys., Dept. of Justice (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, Nathan Lewin, Walter T. Barnes, Philip T. White, Attys., Dept. of Justice, on the brief), for appellee.

Before CLARK, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

Elliott Kahaner, Antonio Corallo and James Vincent Keogh appeal from a judgment of conviction in the District Court for the Southern District of New York upon a verdict after a jury trial, presided over by Judge Weinfeld. The indictment charged that they, Robert M. Erdman and Sanford J. Moore conspired with each other and with six co-conspirators corruptly to influence, obstruct or impede the due administration of justice or to endeavor to do so, in violation of 18 U.S.C. § 1503. The case to which the alleged conspiracy was directed was a charge that Moore and other officers or employees of Gibraltor Amusements, Ltd., had been guilty of criminal concealment of assets in that firm's bankruptcy proceeding in the Eastern District of New York; various overt acts were placed in the Southern District. Trial of Erdman and Moore, the Government's principal witnesses against the three appellants, was severed.

The indictment and trial in this case attracted particular attention because of the identity of two of the appellants — Keogh, a widely known and respected Justice of the Supreme Court of New York for Kings County, and Kahaner, who had served as Chief Assistant United States Attorney and later Acting United States Attorney for the Eastern District. No suggestion has ever been made that the due administration of justice was in fact obstructed; the evidence does not reflect in the slightest degree on former Assistant United States Attorney Averill M. Williams, who was in direct charge of the prosecution in the Eastern District, or on Judge Leo F. Rayfiel, before whom Moore and the other defendants in that prosecution came for sentencing.

On January 5, 1961,1 Sanford J. Moore, Sherwood Schwach, Allen Kerner, Alvin Needleman, Jacob Walter Cohen, and Abraham Manacher were arrested in the Eastern District on charges of concealing assets from the trustee in bankruptcy of Gibraltor Amusements, Ltd., a juke box enterprise on Long Island of which Moore had been vice president and principal officer, and the others had been officers or employees. Cohen, who had been a relatively minor employee, had a cousin, Seymour Deutsch, who did accounting work for Dr. Robert Erdman, a Manhattan physician. At the instance of Deutsch and later of Cohen, Erdman communicated some time in January with Kahaner, then Chief Assistant United States Attorney for the Eastern District, who was both a patient and a friend. At this point the evidence diverges. The following statement is drawn from the Government's case, which was based mainly on the testimony of Erdman and Moore — concededly interested witnesses — who received in return for their cooperation not only postponements of trial on their own indictments here but, in Moore's case, a reduction from three years to one in his sentence on the bankruptcy charge.

The Government's claim was that, following the first conversation between Erdman and Kahaner, a plan was devised whereby Kahaner would endeavor to arrange that only two or at most three of the persons arrested would be indicted (these not to include Cohen), and that later, after Kahaner found that the Assistant United States Attorney proposed to seek the indictment of three — Moore, Kerner and Schwach — the plan was broadened, so that, in Erdman's words, Kahaner "would see to it that they i. e., the men to be indicted were treated softly by having the case brought before a specific judge in April, for which he Kahaner wanted $35,000". After some hesitation Moore accepted the proposal, in part at the urging of Corallo, with the understanding that $15,000 was to be paid before sentencing, and that Corallo would hold the remaining $20,000 until thereafter. Moore and Kahaner first met in Erdman's office on February 212 and Kahaner was paid $5,000 a day or two later. Shortly thereafter Kahaner told Erdman "pressures" were being applied against Moore because of the latter's unsavory background, and suggested that Erdman see Justice Keogh of the New York Supreme Court for Kings County, and enlist his aid. Around the end of the month Erdman went to the chambers of the Justice, who, according to Erdman's testimony, undertook to be of assistance for a monetary consideration, indicating his financial needs on a card he handed to Erdman, later supplemented by a second one, and also talking of a new car. Erdman testified that Kahaner advised him early in March that owing to a change in the assignments of the judges in the Eastern District, the schedule would have to be accelerated so that sentencing would occur in March, and that around March 7 another $5,000 supplied by Moore was paid to Kahaner and the same amount to Justice Keogh. It is established that, on March 9, Moore, Kerner and Schwach appeared before Judge Rayfiel and pleaded guilty, their attorney, Becker, stating that this was against his advice;3 the sentencing was set for March 30, on which day Judge Rayfiel would still be presiding.

The Government's case, still resting basically on Erdman's and Moore's testimony, continued with a meeting of Kahaner, Moore and Corallo on March 15, at which Corallo emphasized the importance to him of Moore's not being sent to prison; a demand by Kahaner for the balance of the money; a meeting of Erdman, Moore and Kahaner at a Brooklyn coffee shop in the morning of March 29 at which Kahaner was paid an additional $2,500, followed by Erdman's going alone to Justice Keogh's chambers, paying him $17,500 and reminding him that the sentencing was scheduled for the following day; and a telephone call in Erdman's presence from the Justice to Judge Rayfiel arranging to lunch that day and asking that Judge Rayfiel bring with him the probation report on Moore.

Kahaner and Keogh categorically denied everything relating to them which is recited in the two foregoing paragraphs, with the exceptions indicated in notes 2 and 3 as to Kahaner and the following exceptions as to Keogh: The Justice conceded handing Erdman two cards, the first card being an estimate of the costs of renovating his summer home and the second, on his testimony, a request for a loan, but placed the date well after the sentencing and explained these as innocent indications of his financial situation given to a close personal friend. He further agreed that Erdman had come to his chambers on the morning of March 29, but said Erdman was accompanied by Moore and another man. The Justice's testimony was that Erdman introduced Moore as a lifelong friend who was in trouble, and wondered whether the Justice would ask Judge Rayfiel to look at Moore's "background to see whether consideration can be given to him." He thereupon made the telephone call arranging to lunch with Judge Rayfiel, although he denied asking Judge Rayfiel to bring along the probation report on Moore — a point on which his account was corroborated, and Erdman's contradicted, by Judge Rayfiel. At lunch, Keogh brought up the Moore case whereupon Judge Rayfiel said, in Keogh's words, "that Moore was the most culpable, he was the worst offender in a bankruptcy fraud, the like of which he had not run into before, and that he could — whether background or anything else was considered — he could not consider him anything but a very unsavory character," and also that two other federal judges had alerted him of rumors "that everything has been taken care of" in regard to the Moore sentence. Erdman was told of this conversation by Keogh during the afternoon of March 29. It is not disputed that Erdman then informed Moore, who that evening told his attorney, Becker, that he wanted to withdraw his guilty plea.

Justice Keogh also conceded that at Erdman's request he arranged for Erdman to see Judge Rayfiel on the morning of March 30 before the latter ascended the bench to sentence Moore and his co-defendants. Judge Rayfiel said that no leniency could be extended. The stenographic transcript shows that when Moore, Kerner and Schwach appeared in court, Becker moved for leave to withdraw their guilty pleas, whereupon Judge Rayfiel remarked that this was "shall I say, very palpable, and I am sure that you know just what I mean"; that after some colloquy, during which Assistant United States Attorney Williams opposed withdrawal of the pleas, the case was placed at the bottom of the sentencing calendar; that a conference was then had in chambers during which Judge Rayfiel said to Becker, among other things, that he believed he had "more information than you have with respect to certain phases of this matter"; and that, on return to open court, the motion for leave to withdraw the pleas of guilty was denied, and Moore, Schwach and Kerner were sentenced for terms of three years, two years and fifteen months respectively.

Beyond this assured core of fact as to what transpired between the lunch of March 29 and the sentencing on March 30 lie great areas of controversy. There is a sharp conflict whether or not the account given by Keogh to Erdman included the prospective...

To continue reading

Request your trial
210 cases
  • United States v. Shipp, 83 Crim. 0574.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 4, 1984
    ...432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977)). 61 United States v. Kahaner, 203 F.Supp. 78, 80-81 (S.D.N.Y.1962), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 62 United States v. Borelli, 435 F.2d 500, 502 (2d Cir.1970), cert. denied, 401 U.S.......
  • United States v. Knohl, 340
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 22, 1967
    ...accordingly. United States v. Bozza, 365 F.2d 206 (2 Cir. 1966); United States v. Marquez, 332 F.2d 162 (2 Cir. 1964); United States v. Kahaner, 317 F.2d 459 (2 Cir. 1963). Even in cases in which the evidence is offered to prove one of the enumerated exceptions to the general rule, its prob......
  • United States v. Gregory, SSS 83 Cr. 68 (EW).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 29, 1985
    ...545 F.2d 785, 794 (2d Cir.1976), cert. denied, 430 U.S. 917, 97 S.Ct. 1331, 51 L.Ed.2d 595 (1977); United States v. Kahaner, 317 F.2d 459, 468 n. 4 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963); United States v. Stromberg, 268 F.2d 256, 264 (2d Cir.), cert. denied......
  • United States v. Santoro, 85 CR 100.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 10, 1986
    ...severance should not be granted. United States v. Kahaner, 203 F.Supp. 78, 81-82 (S.D.N.Y.1962) (footnotes omitted), aff'd, 317 F.2d 459 (2d Cir.), cert. denied, 375 U.S. 835, 84 S.Ct. 62, 11 L.Ed.2d 65 Having reviewed the defendants' contentions, the indictment, and the government's proffe......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT