United States v. Rose

• Decision Date: 14 September 1954
• Docket Number: No. 11116.,11116.
• Citation: 215 F.2d 617
• Parties: UNITED STATES of America v. Maurice ROSE, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

215 F.2d 617 (1954)

UNITED STATES of America v. Maurice ROSE, Appellant.

No. 11116.

United States Court of Appeals Third Circuit.

Argued February 18, 1954.

Decided September 14, 1954.

COPYRIGHT MATERIAL OMITTED

Hirsh W. Stalberg, Philadelphia, Pa. (S. Frank Laveson, Shapiro, Rosenfeld & Stalberg, Philadelphia, Pa., on the brief), for appellant.

J. Julius Levy, U. S. Atty., Scranton, Pa. (Isaiah Matlack, Sp. Asst. to Atty. Gen., on the brief), for appellee.

Before MARIS, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

The defendant appeals from a judgment of conviction of perjury.¹ He was sentenced to a two-year term on five counts of an indictment arising out of his testimony before a Grand Jury in the Middle District of Pennsylvania in an investigation of alleged frauds against the United States in the operation of training schools for veterans (G.I. schools) under the Servicemen's Readjustment Act, 38 U.S.C.A. § 693 et seq.

On December 19, 1951² the Grand Jury questioned the defendant, Maurice Rose, with respect to a payment, by check, made to him on October 24, 1949, by the York Painters and Paperhanging Training School, Inc. ("School") in the sum of $10,583.04 on his invoice of October 14, 1949, for 256 kits of painters' and paperhangers' tools. The Veterans Administration had subsequently reimbursed the School for this payment.

In its interrogation of the defendant the Grand Jury sought to ascertain whether he had in any way connived with the School to defraud the Veterans Administration. It particularly sought to learn whether the October transaction was legitimate or fictitious; what had happened to the proceeds of the $10,583.04 check; whether any of the proceeds was placed in a safe deposit box. The defendant's testimony covered other matters besides the statements on which the indictment was subsequently found on February 5, 1952.

The indictment charged, in brief, that the defendant perjured himself as to material matters when he testified:

(Count 1) that he cashed a check for $10,583.04;

(Count 2) that he used part of the proceeds of the check to pay the Federal Wallpaper Company $1,500.00 in cash;

(Count 3) that he used part of the proceeds of the check to pay the Fidelity Paint Company $3,000.00 in cash;

(Count 4) that he put the balance of the money in a drawer in his bedroom;

(Count 5) that he did not have a safe deposit box.

The five counts were quite lengthy but they admittedly recited only a portion of the defendant's testimony before the Grand Jury on December 19, 1951.

In a motion filed before trial the defendant asked for the right to inspect his entire testimony before the Grand Jury on December 19th, assigning as his principal reasons the fact that he was suffering from diabetes and a heart ailment at the time he testified before the Grand Jury and because of his condition and the voluminous character of his testimony it was impossible for him to recall all of it; that the full text of his testimony would give it a meaning different from that charged in the indictment and would negate perjury, and that his counsel could not properly prepare or conduct his defense unless they could inspect the transcript of his entire testimony.

The defendant's motion was denied and the case proceeded to trial. At the close of the government's testimony the defendant moved for judgment of acquittal. On its denial the defense rested. The jury found the defendant guilty on all five counts. The defendant renewed his motion for judgment of acquittal and, in the alternative, for a new trial. Both motions were denied and following entry of judgment and commitment the defendant appealed.

The issues presented by the appeal may be summarized as follows:

1. Was there compliance with the standard of proof required to sustain a conviction of perjury with respect to each of the five counts of the indictment and did the trial judge err in charging the jury as to such standard of proof?

2. Did the trial judge err in denying defendant's 9th and 14th requests for charge?

3. Did the trial judge err in denying defendant's request to inspect the transcript of all his testimony before the Grand Jury on December 19, 1951, and his subsequent appearances?

On the score of the first issue it is the defendant's contention that the evidence, under applicable legal principles, was insufficient to sustain the jury's verdict of guilty as to each of the five counts of the indictment.

Under the circumstances it is necessary to consider one by one the five counts of the indictment with a view to determining whether the evidence adduced as to them was sufficient to sustain a conviction.

As to Count 1, which charged that the defendant committed perjury when he testified before the Grand Jury that he cashed a $10,583.04 check:

The pertinent testimony of the defendant before the Grand Jury on this phase of the case reads as follows:

"Q. What did you do with the check after you got it? A. In this case I got cash for this check.

"Q. Where did you get the cash? A. At the bank.

"Q. Who was with you when you got the cash? A. Myself.

"Q. Why did you cash a $10,000 check? A. Because I had bills to pay and some of the people that I did business with I used to pay in cash."

The testimony as to this Count, at the trial, was as follows:

Defendant had a checking account at the Northwestern National Bank of Philadelphia, Pennsylvania, in which there was a balance of $1,514.12 on October 25, 1949; during that day he came to the desk of Roland Kushmore, vice-president of the bank and told him that he desired to deposit a check for $10,583.04 and "would like to withdraw a certain sum of cash"; Kushmore made out a deposit slip for $10,583.04 and a check for $3,534.72 which the defendant signed; simultaneously the $10,583.04 check was deposited and defendant cashed the $3,534.72 check;³ at the time the defendant also advised Kushmore that he desired to have certified his check in the amount of $5,870.08 to the order of Peerless Wallpaper and Paint Co. which was dated October 25, but was told that certification would have to be delayed until the $10,583.04 check had been cleared; the certification referred to was made on October 28;^3a on October 28 the defendant went to the bank and cashed a check drawn on his account in the amount of $1,000.

It is well settled that "To sustain a conviction for perjury the evidence must be strong, clear, convincing and direct." United States v. Neff, 3 Cir., 1954, 212 F.2d 297, 306, 307.

The government contends that its proof meets the requirement of this rule; that Kushmore's testimony and bank records establish that the $10,583.04 check was not cashed but was merely deposited in the defendant's account.

The defendant contends to the contrary. The sum of his contention is that since prior to the deposit of the $10,583.04 check, his actual bank balance was $1,514.12, when the bank gave him cash of $3,534.72 because of his simultaneous deposit of the School check, he "got cash for this check" as he had told the Grand Jury.

The following excerpts from Kushmore's testimony are illuminating with respect to the defendant's contention:

"Q. Would you explain to the Court and jury just what happened when Mr. Rose presented that $10,000 check? Do you know from your own knowledge? A. Yes, I do. I mean Mr. Rose came over to my desk, sat down and told me he had this deposit that he wished to make in the account. The deposit was accepted, and he stated that he would like to withdraw a certain sum of cash. The check, which I had made out for $3,534.72, was then given to him for his signature and the cash was received from our — one of our paying tellers and the cash turned over to Mr. Rose at that time.

"Q. At the time that you gave Mr. Rose $3,534.72 had the larger check for $10,583.04 been cleared?

A. No, it had not been."

* * * * * *

"Q. So that when Mr. Rose delivered or deposited or cashed this check for $10,583.04 he had on deposit on October 25 a total balance of $1,514.12? A. That is correct.

"Q. Were any moneys paid to Mr. Rose when he presented this check in the amount of $10,583.04? A. There was $3,534.72 which was cashed the same day practically simultaneously there at the time the $10,583.04 check was deposited. In other words, we received the deposit first; then we paid out $3,534.72 in cash.

"Q. So that the check was cashed for $3,500? A. $3,534.72."

* * * *

"Q. Was that check (for $3,534.72) drawn against the funds of the $10,583.04 deposit? A. Yes, that would have been drawn against the deposit of $10,583.04.

"Q. As well as the $5,000 ($5,870.00) certified check at a later date? A. That is correct."

* * * * * *

"Q. Mr. Kushmore, directing your attention to the date of October 28, 1949, and `Government\'s Exhibit No. 8\' in evidence, will you kindly examine `Government\'s Exhibit No. 8\' in evidence and tell me whether or not there was a withdrawal of $1,000 from Maurice Rose\'s account on that day? A. Yes, sir. On October 28th there was a withdrawal of $1,000 on the account.

* * * * * *

"Q. Now, Mr. Kushmore, as I understand your testimony, there was a certified check which was dated October 25, 1949, and was certified on October 28, 1949, and that was in the sum of $5,870.08; that on — there was a check on October 25, 1949, in the sum of $3,534.72 drawn against that account; is that right? A. That is correct.

"Q. And there was a check or item of $1,000 on October 28, 1949, for which you have no microfilm that was drawn against that account? A. That is correct.

"Q. Now the total of those three checks is $10,404.80. Do you wish to do your own computation? A. That would be correct.

"Q. Now on October 25th the check which is in evidence, `Government\'s Exhibit No. 4\' in the sum of $10,583.04 — now, were there sufficient funds in Mr. Rose\'s account from October 25th through October 28th to meet the total of the three checks of $10,404.80 without drawing on the proceeds of

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