United States v. Lieblich, 295

• Decision Date: 09 July 1957
• Docket Number: Docket 24075.,No. 295,295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irving LIEBLICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

246 F.2d 890 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Irving LIEBLICH, Defendant-Appellant.

No. 295, Docket 24075.

United States Court of Appeals Second Circuit.

Argued April 12, 1957.

Decided July 9, 1957.

COPYRIGHT MATERIAL OMITTED

Paul W. Williams, U. S. Atty. for the Southern District of New York, New York City (Robert W. Bjork and Robert Kirtland, Asst. U. S. Attys., New York City, of Counsel), for plaintiff-appellee.

Vine H. Smith, Brooklyn, N. Y. and Daniel H. Greenberg, New York City, for defendant-appellant.

Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

The one-count indictment in this case charged appellant together with three codefendants, Jacob Goldfless, Henry Mayer and Arthur Muller, and two other co-conspirators, Bernard Weit and Alvin Messler, with conspiracy to violate the Gold Act, 12 U.S.C.A. § 95a, Executive Order No. 6260, as amended, 12 U.S.C.A. § 95a note, and the Regulations issued and promulgated thereunder. The charges against the other defendants were severed and appellant was tried alone. The jury found him guilty and he appeals.

The factual background presents a simple question of veracity between the Government witnesses Weit, Messler and another man named Louis Lazar, on the one hand, and appellant on the other. Weit, of the firm of Weit & Macnow, Inc., had a license for the purchase of gold bullion in quantity. He testified that he and Messler, of the Jerral Watch Co., formed a partnership on a 50-50 basis to sell fine gold to appellant, who had no license, that between June 23 and November 24, 1950 he had about 70 transactions with appellant, who bought from him during this period about $400,000 worth of 24-carat fine gold for cash, at an advance over the official price, which represented the profit to Weit and Messler. Weit would negotiate a sale with appellant, then purchase the gold from Kastenhuber & Lehrfeld, Inc., pursuant to his license, and then make deliveries at various places to appellant, who paid him in currency. Messler filled in additional details and testified to handling a number of sales to appellant while Weit was away on vacation in August or September, 1950. Certain books and records were produced and Weit described how these transactions were handled to conceal what he and Messler were doing. The cash would be deposited in the account of Jerral Watch Co., a check would be delivered to Weit & Macnow, Inc., and a series of entries made to give the transactions a fictitious appearance of legitimacy. As Messler testified, "we used the watch company as a cover-up for the sale of gold." Lazar testified to a number of additional sales of fine gold by him to appellant and to the details of delivery, payment and so on. Much is made of the fact that these witnesses were wrongdoers, and various contradictions and impeaching circumstances are brought to our attention, but there was an abundance of proof to warrant the submission of the case to the jury and it was the function of the jury to pass upon the credibility of the witnesses and decide whether to believe appellant, who vigorously denied the charge in toto.

The federal authorities became interested as a result of a particular transaction, which led to the arrest of Weit and appellant by the New York City police, and a considerable part of the record before us has to do with the events preceding and following this arrest.

Weit's version of this transaction is that on November 22, 1950 he negotiated a sale of 460 ounces of fine gold to appellant, that Weit purchased this from Samuel Landau and appellant resold it to Goldfless. Shortly thereafter, Goldfless discovered that the package delivered to him contained "junk" and he demanded the immediate return of the $16,500 or thereabouts that he had paid to appellant for the "gold." Landau in the meantime had disappeared. The result was that Goldfless called the police, Weit and appellant were placed in the Tombs prison on November 24, and they spent the night there. In due course the case wound up in a New York City Magistrate's Court, where the charges were dismissed upon the payment of $14,000 by Weit to Goldfless. It was the claim of the prosecution in the case now before us that in the midst of the events of November 24, Goldfless got the happy thought that transactions in fine gold were illegal and they had better say it was platinum. In any event, appellant testified that he was dealing in platinum at the time, that "the mastermind who made the metal" was Messler and not Landau, and that, instead of being a transaction concerning 460 ounces of fine gold at about $36 an ounce it was a sale of 200 ounces of platinum, the sale of which without a license was not prohibited by law, at about $80 an ounce, on which appellant was to receive a commission of 20 cents an ounce.

It would be tedious to follow the testimony concerning the November transaction, and will suffice, we think, to mention that police officer McLain testified that the package weighed 490 ounces, the Government expert Elmer Thomas testified that the average selling price of platinum in November, 1950 was $91 per ounce, and, when appellant sued Goldfless for $100,000 for false arrest appellant's complaint made no mention of gold or platinum but alleged that Goldfless requested appellant to obtain for him "a certain quantity of precious metal" and that appellant informed Goldfless he could obtain 460 ounces "of said precious metal" at $35.90 per ounce, including a commission of 10 cents an ounce for appellant.

The grounds urged for reversal are many and various. We are told: (1) that the records showing the fictitious transactions between Weit & Macnow, Inc. and Jerral Watch Co. do not measure up to the requirements of the Business Records Act, 28 U.S.C. § 1732, and hence were not admissible; (2) that appellant was denied a proper opportunity to show lack of criminal intent; (3) that the conduct of the trial judge was so improper and prejudicial as to deprive appellant of a fair trial; and (4) that it was error to receive over appellant's objection the testimony of the witness Gruner in rebuttal. There are other contentions but we think they require no comment.

As to the books and records, which were objected to on the ground that a "proper foundation has not been laid as yet" and that they were irrelevant "until such time as a conspiracy is shown," it is enough to say that Weit had already testified with a wealth of detail to the existence of the conspiracy and appellant's participation therein. The Business Records Act has nothing to do with the case before us, even if Weit did testify that the books and invoices were kept in the regular course of business. We are dealing here with the apparatus and...