United States v. Leibowitz, 291

Decision Date19 December 1969
Docket NumberNo. 291,Docket 33203.,291
Citation420 F.2d 39
PartiesUNITED STATES of America, Appellee, v. David LEIBOWITZ, Appellant.
CourtU.S. Court of Appeals — Second Circuit

John J. Mooney, McLaughlin & McLaughlin, New York City, for appellant.

Jerome C. Ditore, Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty. for the Eastern District of New York, on the brief), for appellee.

Before FRIENDLY, SMITH and HAYS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Appellant appeals his conviction on two counts of violating 50 U.S.C. App. § 462(a) the Selective Service Act of 1967. He was fined $5,000 on each count after jury trial in the United States District Court for the Eastern District of New York, John T. Curtin, Judge. Count one of the indictment charged the appellant with aiding and abetting another (his son), who was a Selective Service registrant, to evade service in the Armed Forces of the United States. The second count charged appellant with being a party to the making of a false statement bearing upon his son's Selective Service classification for service in the Armed Forces of the United States. Both of the offenses set forth in the indictment upon which the appellant was convicted are among the ten disjunctive offenses established by Congress in 50 U.S.C. App. § 462(a); each offense is punishable by a penalty of up to five years and/or a fine up to $10,000. We find no error and affirm the conviction on both counts.

Appellant's son was classified 2-S (student deferment) in October, 1963, which classification was effective until the end of the school year in June, 1964. In April, 1964, one Paul Miller received a phone call, and the caller arranged a meeting between Miller and appellant; the meeting took place that month. During the meeting appellant told Miller that he wished to keep his son from going into the Armed Forces and Miller told appellant he could do so by submitting false information to appellant's son's draft board. The form to be submitted, Miller informed appellant, was a DD-44 form which would contain appellant's son's name, address, date of birth, Selective Service number, Selective Service board number and the false information that appellant's son was serving satisfactorily in an active Reserve Unit. Miller gave assurances that upon receipt of the DD-44 form, the local board would re-classify appellant's son I-D and would consider him to be in the active reserves. Appellant agreed to this and to pay Miller $3,500 for his services. Appellant gave Miller a cash down payment and handed several of his son's Selective Service cards to Miller so that Miller could copy the necessary data onto a page of his black notebook; Miller was also given appellant's telephone number, which Miller entered in his book.

Subsequent events resulted in the classification for appellant's son that Miller had promised. Miller contacted Solomon Gottfried, his accomplice, and gave him the information and $200 for his services. Gottfried made out the false DD-44 from the information appellant had supplied, and added that appellant's son was performing satisfactory active reserve duty with the 514th Troop Carrier Wing at McGuire Air Force Base. The form bore the fictitious name of Captain James F. Medina, and Gottfried mailed it to appellant's son's local board. In May, 1964, on the basis of the false DD-44 submitted, the board reclassified appellant's son I-D, and such classification was mailed to appellant's son. Miller contacted appellant later in May by telephone and asked appellant if his son had been reclassified by the draft board. When informed that such was the case, Miller arranged a meeting with appellant and collected the balance due on the $3,500 fee. A I-D registrant cannot be drafted. Although appellant testified in his own defense and denied ever knowing or meeting Miller, the jury resolved the issue of credibility against appellant by its verdict.

Appellant's principal contention is that the government presented only hearsay evidence before the grand jury although its witnesses were readily available and that in doing so the government completely disregarded our admonition in United States v. Umans, 368 F.2d 725 (2d Cir. 1966), cert. granted 386 U.S. 940, 87 S.Ct. 975, 17 L.Ed.2d 872, cert. dismissed as improvidently granted 389 U.S. 80, 88 S.Ct. 253, 19 L. Ed.2d 255. None of the government witnesses at trial appeared before the grand jury1 although both Miller and Gottfried were available at the time in the New York City area. The testimony before the grand jury was that of FBI Agent George G. McKenna who testified that he had conducted the investigation of this case and had examined the local board's records showing appellant's son had been given a I-D classification after the board had received a DD-44 form. The form stated that appellant's son was enlisted in the Air Force Reserve and was serving satisfactorily; Agent McKenna also testified that he had examined the records at McGuire Air Force Base which disclosed that appellant's son was not and never had been a member of the unit and that he was unknown there. Agent McKenna further testified to the grand jury that when Miller, the principal government witness was arrested, a black notebook was seized from him and one of the entries in the book was the name, address and Selective Service number of appellant's son. To explain the meaning of this entry, the agent read Miller's written statement in which Miller told of the deal between himself and appellant.

Despite appellant's arguments to the contrary, we did not in United States v. Umans, supra, attempt to change the basic premise concerning grand jury indictments based upon hearsay evidence as established by Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). In Costello, the Court stated that since neither the Fifth Amendment nor any other constitutional provision prescribed the kind of evidence upon which a grand jury must act, the defendants could not challenge their indictments on the ground that they were not supported by adequate or competent evidence but solely by hearsay. In Umans we admonished prosecutors regarding the over-use of hearsay evidence in the presentation of government cases to grand juries, but we have consistently upheld indictments based upon hearsay evidence. See, e. g., United States v. Andrews, 381 F.2d 377 (2d Cir. 1967), cert. denied 390 U.S. 960, 88 S.Ct. 1058, 19 L.Ed.2d 1156 (1968); United States v. Beltram, 388 F.2d 449 (2d Cir. 1968), cert. denied sub nom. Colon v. United States, 391 U.S. 955, 88 S.Ct. 1860, 20 L.Ed.2d 869 (1968); United States v. Covello, 410 F.2d 536 (2d Cir. 1969); United States v. Mayersohn, 413 F.2d 641, 643 (2d Cir. 1969). As we noted in United States v. Payton, 363 F.2d 996 (2d Cir. 1966), cert. denied 385 U.S. 993, 87 S.Ct. 606, 17 L.Ed.2d 453 (1966), even though the use of hearsay before the grand jury deprives a defendant of the opportunity to impeach witnesses at trial with prior inconsistent statements made to the grand jury, a defendant cannot require prior statements to the...

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