United States v. Mayersohn, 66-CR-116.

• Decision Date: 26 May 1971
• Docket Number: 66-CR-116.
• Citation: 335 F. Supp. 1339
• Parties: UNITED STATES of America, v. Ronald A. MAYERSOHN, Defendant.
• Court: U.S. District Court — Eastern District of New York

335 F. Supp. 1339

UNITED STATES of America, v. Ronald A. MAYERSOHN, Defendant.

66-CR-116.

United States District Court, E. D. New York.

May 26, 1971.

COPYRIGHT MATERIAL OMITTED

Edward R. Neaher, U. S. Atty., E. D. New York, by Vincent J. Favorito, Asst. U. S. Atty., for United States.

Schwartz & Frohlich, New York City, by Michael S. Fawer, New York City, for defendant.

ZAVATT, District Judge.

Five years have elapsed since the defendant was indicted on March 28, 1966 and charged with having violated the Selective Service Act, 50 U.S.C. App. § 462(a), in that he knowingly and willfully evaded service in the Armed Forces of the United States by causing to be submitted to Local Draft Board No. 6, Valley Stream, Nassau County, New York (the Board), false and fraudulent information to the effect that he was a bona fide member of a Reserve Unit of the said Armed Forces (Count One), and with having been a party to the making of that false statement bearing upon his classification (Count Two).

The defendant's motion for a new trial upon the grounds hereinafter enumerated is denied.

After the indictment was filed, (1) the defendant, accompanied by his then attorney, Anthony Atlas, pleaded "not guilty" on March 30, 1966; (2) accompanied by substituted counsel, the late Harris Steinberg (whom defendant retained sometime prior to May 3, 1968 and with whom he had conferred on many occasions with reference to this case), withdrew his plea of "not guilty" and pleaded "guilty" to Count Two before Judge Mishler on July 22, 1968; (3) by substituted counsel, Stanley J. Reiben (Reiben), the defendant filed a notice of motion on September 4, 1968, returnable before Judge Dooling, for leave to withdraw his plea of "guilty" to Count Two and to plead "not guilty" to the indictment (this motion was referred to Judge Mishler, who granted the motion); (4) the case, having been assigned to me, was set for trial by jury which commenced on October 8 and concluded on October 18, 1968, when the jury, after three and one-half hours of deliberation, returned verdicts of guilty on both counts; (5) the defendant, having been sentenced to concurrent terms of five (5) years on both counts of the indictment on December 20, 1968, appealed to the Court of Appeals from the judgment of conviction, which was affirmed on July 23, 1969, United States v. Mayersohn, 413 F.2d 641 (2d Cir. 1968); (6) the defendant's petition to the Court of Appeals for a rehearing was denied September 5, 1969; (7) the defendant's petition (by new counsel, Michael S. Fawer (Fawer)) to the Supreme Court for a writ of certiorari was denied February 24, 1970, 397 U.S. 906, 90 S.Ct. 903, 25 L.Ed.2d 87; (8) on March 26, 1970, the defendant, by Fawer, served a notice of motion for a new trial, returnable April 3, 1970; (9) by a memorandum order, dated and filed June 30, 1970, the court set August 31, 1970 as the date for an evidentiary hearing on the defendant's said motion; (10) the hearing was held on August 31, September 1, 2, 3, 8 and November 1-3, 1970; (11) defendant's counsel filed his post-hearing memorandum on November 25, 1970.

The motion for a new trial and hearing thereon.

The primary reasons for holding a hearing on the motion (rather than deciding it on the record, the moving papers and those in opposition thereto) were the serious allegations of misconduct on the part of defendant's trial counsel, Reiben, and his alleged dealings with Nathan Voloshen. Voloshen and one Martin Sweig (Sweig) had been indicted in the Southern District of New York on January 12, 1970 in a fifteen count indictment charging them with conspiracy and related offenses of false personation, conflict of interest and perjury, United States of America v. Sweig, 316 F.Supp. 1148 (S.D.N.Y.1970). Before the instant motion for a new trial, Voloshen had pleaded guilty before trial to four counts of the indictment. After a sixteen-day jury trial before Judge Frankel, the jury found Sweig guilty on Count Six, one of the perjury counts, on July 7, 1970. In Count Six Sweig was charged with having committed perjury when he testified before a Grand Jury that he did not know Gary Roth, one of the persons named in the instant moving papers for a new trial in this Mayersohn case. On September 3, 1970 Sweig was sentenced to a term of thirty (30) months in jail and was fined $2,000.00. On April 14, 1971 Sweig's judgment of conviction was affirmed. United States of America v. Sweig, 441 F.2d 114 (2d Cir. 1971).

In his moving affidavit, Mr. Fawer charged that the defendant had not been effectively represented because, among other things, (1) Reiben, at the request of Nathan Voloshen, had failed to call as witnesses for the defendant Gary Roth and Steven Jay Novick, two Selective Service registrants "who, like Mayersohn, had paid Miller to effect a change in their classifications"; (2) had "inexplicably consented" to the Government's motion, during the trial, to quash the subpoena served on "the local draft board to produce the Roth and Novick files"; (3) had acceded to the request of Nathan Voloshen not to call Roth and Novick to the witness stand; (4) "did virtually nothing to enforce attendance at trial of a witness of vital importance, Paul Miller's wife . . . after Mr. Reiben spoke to Voloshen"; (5) that Reiben may not have elicited the testimony of Roth, Novick and Mrs. Miller "because of trial counsel's improperly motivated decision to forego this most appropriate line of defense"; (6) that, "In acquiescing to Voloshen's demand, Stanley J. Reiben may have improperly subordinated his primary obligation to his client. In so doing, he gave up an opportunity to prove the veracity of Mayersohn's testimony by the independent evidence to be offered by Roth and Novick"; (7) in his affidavit, Fawer speaks of "the dramatic change in the defense trial strategy," because of his conversation with Voloshen; (8) "It is frankly difficult to assess what effect the testimony of Roth, Novick and Mrs. Miller would have had on the jury verdict. However, if, in fact, it would have corroborated Mayersohn and thereby discredited Miller's testimony on the key issue, its effect on the jury's deliberations may well have been the return of a different verdict." The gist of these allegations by Fawer against Reiben was that, in effect, Reiben had sold his client down the river; that, but for Reiben's "improperly motivated decision," "improper subordination of his primary obligation to his client," "dramatic change in the defense trial strategy," the defendant may not have been convicted.

Before the hearing and at the request of the court, Reiben submitted his affidavit, sworn to April 9, 1970, in which he admitted that he was "telephonically contacted by one Nathan Voloshen, over the weekend of October 12-13, 1968," who told him that Roth and Novick were his relatives and that "he did not want them called to the witness stand because it would embarrass him. He advised me that if I acceded to his request, he would, if Mayersohn was convicted, arrange for him to spend one month on a prison farm and then be inducted into the Army for a period of several months." (Reiben affidavit pp. 4-5) Reiben stated in that affidavit the reason why he did not call Roth and Novick:

"The reason for my not calling Roth and Novick to the stand was my subjective determination that their testimony would be deemed inadmissible by the trial court. I advised my client of my conversations with Mr. Voloshen and of my decision not to call Roth and Novick as defense witnesses, although I do not believe that I identified Voloshen by name to my client." (Reiben affidavit p. 5)

Neither the Fawer nor the Reiben affidavit stated what the testimony of Roth or Novick would have been, had they been called as witnesses; whether either of them would have testified; whether Reiben knew that, had he called them, they would plead the Fifth Amendment. Reiben testified at the hearing. Roth and Novick were called to the stand and pleaded the Fifth Amendment. Voloshen, though subpoenaed to attend the hearing, did not appear. In his post-hearing memorandum, Fawer stated that Voloshen "was hospitalized, and his counsel advised that, in any event, his client intended to exercise his Fifth Amendment privilege not to testify." (Fawer affidavit p. 5)

After his scathing criticism of Reiben in his moving affidavit, Fawer, in his post-hearing memorandum, withdrew his claim that the defendant had been denied the effective assistance of counsel. "In view of Mr. Reiben's testimony and the absence of any testimony on the issue from Roth, Novick or Voloshen, defendant herewith respectfully withdraws his claim that a new trial should be granted on the ground that he was denied the effective assistance of counsel." (Fawer memorandum p. 5)

That leaves as the alleged grounds for a new trial on the basis of allegedly newly discovered evidence (1) that the Government refrained from interviewing Mrs. Paul Miller, at the request of Paul Miller and did not so advise defense counsel; (2) that the prosecuting attorney, Thomas O'Brien (O'Brien), misrepresented to the court and to Reiben, during the trial, that the Government could not locate Mrs. Miller, when in fact it had never looked for her; (3) that the testimony of Mrs. Paul Miller at the hearing contradicts Paul Miller's uncorroborated trial testimony; (4) that O'Brien failed to produce for the court's inspection and make available to defendant's trial counsel at the conclusion of Miller's direct testimony section 3500 material in the form of a Federal Bureau of Investigation report as to the events which occurred in Miller's apartment on the evening of his arrest, which contained a report of statements made by Miller at that time; (5) that O'Brien permitted Miller to testify that he had made no "statement" to the arresting agents when he was arrested on January 31, 1966, when in fact he had made a "statement."

The Trial

The...