United States v. Ochs
| Decision Date | 22 September 1982 |
| Docket Number | No. 77 Cr. 0775 (IBC).,77 Cr. 0775 (IBC). |
| Citation | 548 F. Supp. 502 |
| Parties | UNITED STATES of America, v. George OCHS, Defendant. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
John S. Martin, Jr., U. S. Atty., S.D.N.Y., New York City, for United States; Peter D. Sudler, Sp. Asst. U. S. Atty., Walter S. Mack, Jr., Asst. U. S. Atty., New York City, of counsel.
Steven H. Gifis, Princeton, N.J., and Larry Bronson, West Orange, N.J., for defendant.
Movant, George W. Ochs, now seeks an order granting him a new trial based on newly discovered evidence and on certain alleged constitutional violations.1 The gravamen of his motion papers, numerous supporting affidavits subsequently submitted and repetitive contentions at the hearing on the instant application2 is that a key government witness who at trial testified on the extremely serious extortion charge subsequently recanted her testimony; that prosecutorial misconduct precluded exculpatory evidence from being presented to the jury regarding the false tax exemption charges; and that all of the foregoing "rendered the entire trial a hollow mockery of justice," requiring a new trial on all seven felony counts of the original indictment.3 The government remains steadfast and argues that "movant's present excursion, conjuring up `newly discovered' evidence and fabricating testimony of prosecutorial misconduct and recantation, is yet another attempt to obstruct justice and to frustrate the fair and just disposition of his case."4 For reasons set forth below, we are compelled to deny, on the facts and the law appertaining thereto, the instant application in all respects.
This motion by Ochs comes nearly four years after our first involvement with him. On October 26, 1977 a seven count indictment was filed charging him with Count 1: the use of extortionate means to collect a loan he had made to Debbie McElroy (18 U.S.C. § 894); Count 2: obstruction of justice by endeavoring to influence witnesses subpoenaed to testify before a grand jury (18 U.S.C. § 1503); Counts 3 through 5: falsely subscribing income tax returns for 1971, 1972 and 1973 by claiming personal exemptions to which defendant knew he was not entitled (26 U.S.C. § 7206(1)); Count 6: failing to file an income tax return for 1974 (26 U.S.C. § 7203); and Count 7: evasion of his 1974 federal income taxes (26 U.S.C. § 7201).5
The jury trial commenced on January 16, 1978. The proof adduced by the Government demonstrated that between 1974 and 1976 the defendant conducted a loansharking business while owning and operating a house of prostitution/massage parlor in New York City; that he threatened to murder Debbie McElroy, a prostitute who had worked for him, for failure to make payments on a usurious loan he had made to her. Further, the trial record revealed that defendant falsely claimed exemptions in 1971, 1972 and 1973 for a non-existent wife and children, and that in 1974 he failed to report as income on his tax return $25,000 which he derived from his prostitution and loansharking endeavors. Finally, the proof also established, to the jury's belief beyond a reasonable doubt, that Ochs had approached several witnesses subpoenaed to testify before the grand jury and instructed them either to lie regarding payments of interest on loans made by him or to assert their Fifth Amendment privilege.
On February 6, 1978 the jury returned its verdict finding the defendant guilty on each of the seven counts.
At sentencing on April 14, 1978 we were confronted with a man who had been arrested thirteen times from 1944 to 1977 on serious criminal charges ranging from rape and armed robbery to bribery and extortion by threat. While such sentences as were meted out to him varied, the net result was that Ochs has been imprisoned for the greater part of his adult life. As we noted before and emphasize now again, Ochs displayed "a criminal behavior pattern we regarded shocking and repugnant to an offensive degree."6
At sentencing we talked to the defendant (as has always been our practice throughout more than four decades of judicial function) in terms that he could understand:7
I don't want to give you a lecture. I don't think the lecture would do you any good, and I don't think that the judge means anything to you except insofar as what he is going to, to use the vernacular, `hand out.' I don't think that I have that capacity to influence you, and so, therefore, I don't see any purpose by a recitation of what you have done with your life. In my book, you have been in moral bankruptcy from the time you were a boy.... How you ... failed to see that you weren't getting anywhere is beyond me, because you are not a fool. You have a good head. You just didn't put it to use in the right direction.
After careful reflection, striving to do justice to the defendant and community alike, we sentenced Ochs to 23 years imprisonment: 7 years on Count 1; 5 years on Count 2; 3 years on each of Counts 3, 4 and 5; and 2 years on Count 7; the sentences to run consecutively.8
Ochs appealed his conviction claiming numerous reversible errors. His primary position was that a police search of an automobile in which he was a passenger turned up certain loansharking and prostitution records which were illegally received at trial in violation of his rights under the Fourth Amendment; and that the imposition of a 3 year sentence on each of the three false exemption counts was so irrational that it was a "manifest abuse" of our discretion.9
Each of Ochs' challenges was rejected by our Circuit Court of Appeals. As to the Fourth Amendment issue, the Court stated in essence that the search of an automobile which the defendant was using was a proper inventory search and as such the records which were uncovered were properly admitted into evidence.10
Ochs' attack on the sentence was likewise rejected. The Court stated:11
On the undisputed record disclosed in the presentence report, the judge could reasonably have given Ochs an even higher total sentence than he did. Particularly in light of our disposition of the suppression claim, we are not concerned with how the sentence was structured.
United States v. Ochs, supra, 595 F.2d at 1262 (emphasis ours).
After having served two years of the twenty-three year sentence we imposed, Ochs made a motion for reduction of his sentence pursuant to Fed.R.Crim.P. 35.12 In support of that application the defendant argued, in essence, that his deportment during the first two years of incarceration was "exemplary"; that he had "demonstrated a commitment to self-improvement and adjustment"; that he had "effected a complete reversal of the inertia which grasped him at age 16 and carried him through 32 years of lost life"; and that "it was ... necessary to reassess him ... in light of his new attributes."13 We stated then:
We deal here with a person whose whole being during the greater part so far of his adult life has been saturated with criminal intent translated into almost uninterrupted lawless activity. Without a doubt, he has been a determined offender against community well-being. Apprehension concerning his motives and movements is bound to ensue. The right to move safely, unmolested, to be secure at work and home, to be protected against frauds and schemers, is paramount. For it, the community pays a huge price, and is intolerant of failure or laxity on the part of its agents and instruments. It cannot be patient with or concerned about the welfare of offenders while they threaten its security and comfort. Many such offenders are crafty professionals whose aim is to bleed the community's resources for their own pleasures, at times using the instruments of the law itself to carry out and safeguard their operations and personal safety.14
After careful review of Ochs' criminal record, efforts at rehabilitation and deportment during his two years of imprisonment, we were constrained to deny his motion in all respects and noted the total lack of satisfactory evidence on what was needed for a thorough understanding of this defendant's "revised" moral character, capacity to rehabilitate and educability; that if we are to sentence the whole person and not the crime alone, a thorough inquiry as to the true capacity of the offender is paramount.15 Indispensable is a thorough search for all details having even the slightest bearing on a defendant's character, past and present. Often such an inquiry proves rewarding, for it supplies insights into strengths and weaknesses not theretofore revealed and furnishes enlightenment as to how best to write the sentence prescription. This approach is imperative and has long been encouraged and approved. In the exercise of his discretion, the judge may Williams v. New York, 337 U.S. 241, 245-47, 69 S.Ct. 1079, 1082, 1083, 93 L.Ed. 1337 (1949) (emphasis supplied). See also 21 U.S.C. § 850.
We concluded:16
We do not despair of the defendant's chances ultimately to achieve moral values that will enable him to climb to higher ground. In the main, that is up to him. We do not say that his industry and pleasantness while in present confinement have been solely to earn `credits' which will support his application for parole and entitle him to other benefits; such conduct may be coupled with a strong desire to `go straight.' We simply do not know—so thin is the evidence before us. In view of what is known of the whole man before and since our sentence was imposed, satisfactory...
To continue reading
Request your trial
-
People v. Huggins
...one year after the discovery of the new evidence since such motion was not made with due diligence; see also, United States v. Ochs, 548 F.Supp. 502, 512-513 [S.D.N.Y.1982], aff'd 742 F.2d 1444 [2d Cir.1983], cert denied 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 [1984]; People v. Mancuso......
-
Ochs v. Commissioner
...substantially the same arguments advanced before this Court. The District Court denied petitioner's application. United States v. Ochs, 548 F. Supp. 502 (S.D. N.Y. 1982), affd. in unpublished opinion 742 F.2d 1444 (2d Cir. 1983), cert. denied 464 U.S. 1073 The deficiencies determined by res......
-
US v. Matos
...denied, 429 U.S. 819, 97 S.Ct. 65, 66, 50 L.Ed.2d 80 (1976), and only in "`the most extraordinary circumstances.'" United States v. Ochs, 548 F.Supp. 502, 512 (S.D.N.Y.1982) (quoting United States v. Fassoulis, 203 F.Supp. 114, 117 (S.D.N.Y.1962)), aff'd, 742 F.2d 1444 (2d Cir.1983), cert. ......
-
U.S. v. DiPaolo
...cert. denied, 429 U.S. 819, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976), in " 'the most extraordinary circumstances.' " United States v. Ochs, 548 F.Supp. 502, 512 (S.D.N.Y.1982) (quoting United States v. Fassoulis, 203 F.Supp. 114, 117 (S.D.N.Y.1962) (Weinfeld, J.)), aff'd, 742 F.2d 1444 (2d Cir.198......