United States v. Mayersohn

• Decision Date: 22 November 1971
• Docket Number: No. 169,Docket 71-1676.,169
• Citation: 452 F.2d 521
• Parties: UNITED STATES of America, Appellee, v. Ronald A. MAYERSOHN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

452 F.2d 521 (1971)

UNITED STATES of America, Appellee, v. Ronald A. MAYERSOHN, Defendant-Appellant.

No. 169, Docket 71-1676.

United States Court of Appeals, Second Circuit.

Argued October 4, 1971.

Decided November 22, 1971.

Michael S. Fawer, New York City (Stuart G. Schwartz, New York City, of counsel), for appellant.

Vincent J. Favorito, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty. for the E.D.N.Y., Brooklyn, N. Y., and David G. Trager, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before MOORE, HAYS and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

Ronald A. Mayersohn appeals from an order of the United States District Court for the Eastern District of New York denying his motion for a new trial.¹ The basis of the motion is newly discovered evidence. Finding no error in the decision of the court below, we affirm.

Mayersohn was convicted, after a jury trial, of evading military service by means of a fraudulent claim of membership in a reserve unit and of being a party to the making of a false statement bearing upon his classification for military service in violation of section 462(a) of Title 50.² Mayersohn's conviction is one of many obtained by the government on the basis of evidence provided by Paul Miller, the individual who procured, for a fee, fraudulent notices for some sixty young men that informed their draft boards that the young men were duly enlisted in a reserve unit. Enlistment in a reserve unit exempts one from the draft.³

The sole issue at trial was whether Mayersohn had knowledge of the fraudulent manner by which Miller would obtain his enlistment in a reserve unit. Miller testified at the trial that he told Mayersohn that the enlistment would be obtained by the use of a forged notice of reserve enlistment (Form DD44). Mayersohn, on the other hand, testified that he believed that he was simply buying Miller's well-known influence to secure the reserve enlistment.

Subsequent to the affirmance of his conviction by this court, 413 F.2d 641, Mayersohn retained new counsel. After certiorari to the Supreme Court was denied, counsel moved for a new trial.⁴ Two basic grounds for a new trial were alleged: (1) that the government failed to inform the defense of certain statements made by Miller to FBI agents, and (2) that defendant had not been effectively represented at trial.⁵ The second claim was later withdrawn. After a hearing, the district court filed an exhaustive opinion denying appellant's motion that the subsequently discovered Miller statements and the testimony of Miller's wife that was elicited at the hearing warranted a new trial.

The Newly Discovered Miller Statements

At the conclusion of Miller's testimony at trial, defense counsel moved pursuant to the Jencks Act for all statements of Miller in the possession of the government.⁶ Two such statements were turned over to the defense, one dated February 15, 1966, the other dated February 20, 1966. Each is a portion of Miller's detailed statement explaining his enlistment activities and the individuals involved.

What the government did not turn over was the report of what transpired on the night that Miller was arrested, January 31, 1966. This report was dated February 4, 1966. It provides, in relevant part:

Miller stated that he had brought about their the boys listed in a book handed over to a special agent reclassification and that of many others listed in his books, to a deferred status, by causing to be forwarded to their draft boards military reserve forms, which advised the boards that these individuals had been enlisted in the reserve. He explained that he himself did not handle or even see the forms that were used in this operation, but that someone else handled the job of sending the forms to the local boards. He stated that at this time he did not wish to go into detail about the operation and did not wish to identify other persons who worked with him on the operation. He wished first to discuss the matter with his attorney, after which he probably would tell the Agents the entire story, but he wanted to get the "goahead" first from his attorney.⁷

Another report that apparently was not turned over to defense counsel was one of a request by Miller that his wife not be interviewed. There was considerable confusion at the hearing as to whether such a report was ever made, or whether a specific request therefor by Miller was made.⁸

Debra Miller's Testimony

Miller's wife,⁹ Debra Miller, testified at the hearing that she was present in the apartment on about six or eight occasions during her husband's meetings with boys desiring reserve enlistments. These meetings took place in the living room while she was either in the kitchen or in the dining area off the living room. Though she did not participate in the conversations held between her husband and the boys, she did eavesdrop and therefore did pick up "bits and pieces." On the basis of these bits and pieces she testified that she had never heard her husband inform the boys that he would obtain their enlistments by the use of fraudulent Form DD44s.

The Suppressed Evidence as Grounds for a New Trial¹⁰

Appellant contends that the breach by the government of its duty to disclose all of Miller's statements violated his right to due process.¹¹ Specifically, he argues that Miller's failure upon his arrest to state that the boys knew of the fraudulent nature of his activities, and his request to the government that his wife not be interviewed, would have been invaluable to the defense in its efforts to impeach Miller on the all important issue of Mayersohn's criminal knowledge.

We disagree. At the outset, we assume arguendo that the government possesses a report of Miller's request that his wife not be interviewed. We agree that both reports — of this request and of the statements made by Miller on the night of his arrest — should have been turned over by the government to the court pursuant to the Jencks Act upon the conclusion of Miller's testimony.¹² However, this breach was inadvertent, not wilful. While the Assistant United States Attorney who tried this case had read the arrest-night report, it was part of a voluminous file on the "Miller" cases, it contained no specific reference to Mayersohn, and he simply forgot about it when he handed to the court the other Jencks Act material.¹³

In determining whether government suppression of evidence warrants a new trial, courts must resolve a conflict between two solidly established principles: (1) that sentences should be promptly enforced¹⁴ and (2) that the government as prosecutor should be dedicated more to the pursuit of truth than to the pursuit of convictions.¹⁵ The former principle leads to the conclusion that motions for new trials are not favored;¹⁶ the latter to the conclusion that the suppression of evidence is a violation of due process.¹⁷

In balancing these two principles, courts have reached the obvious conclusion: the more egregious the suppression, the less material to the verdict need be the evidence suppressed to justify a new trial.¹⁸ Where the suppression is deliberate, the interest in enforcing the second principle becomes paramount.¹⁹ Where the suppression is inadvertent, the principles reach equipoise and a careful analysis of the extent to which the evidence suppressed harmed the defendant is required.²⁰ As this court has said, the test then becomes whether "there was a significant chance that this added item the item suppressed, developed by skilled counsel as it would have been, could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction."²¹

We disagree with the appellant that there is a significant chance that the arrest-night report and the no-interview request could have induced a reasonable doubt in the minds of enough jurors to avoid a conviction. Upon his arrest Miller specifically stated that he did not wish to go into details about his business; therefore, his failure to mention the specific knowledge of his clients concerning the fraudulent nature of his activities adds little force to the theory vigorously argued by trial counsel before the jury that Miller was selling out his clients in order to obtain a reduced sentence on his own conviction.²² Equally lacking the requisite significance is Miller's request that his wife not be interviewed. Appellant contends that he could have argued to the jury that "Miller did not want his wife interviewed because he knew that she could only be destructive to the Government's case."²³ However, there is another explanation for the request, namely, that Miller did not wish to involve his family in the government's investigation.²⁴ We do not believe that this request, as explained by these two alternative theories, would have induced a reasonable doubt in the minds of the jurors to avoid a conviction. Finally, the no-interview request and the arrest-night report would not have at all impugned the circumstantial evidence that strongly pointed to Mayersohn's state of mind: the $2,500 fee paid to Miller, Mayersohn's failure to contact the reserve unit in which he had obtained an enlistment, and his lack of surprise in the unit's failure to communicate with him subsequent to the enlistment.²⁵

Debra Miller's Newly Discovered Testimony²⁶

We fully agree with the district court that the testimony of Debra Miller at the hearing does not meet the rigorous tests for a new trial applicable to newly discovered evidence: her testimony only impeaches that of her husband, and would not probably produce a different verdict were there a retrial.²⁷ Her testimony does not refute her husband's on the issue of Mayersohn's criminal knowledge; it simply does not confirm it. The evidence makes clear that Debra was purposely not made privy to the conversations between Miller and his clients, that she eavesdropped on only a few of these conversations (she did not remember whether Mayersohn's was...