United States v. Rubenstein, 358.

• Decision Date: 13 November 1945
• Docket Number: No. 358.,358.
• Citation: 151 F.2d 915
• Parties: UNITED STATES v. RUBENSTEIN.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 915 (1945)

UNITED STATES v. RUBENSTEIN.

No. 358.

Circuit Court of Appeals, Second Circuit.

August 25, 1945.

Writ of Certiorari Denied November 13, 1945.

Joseph Leary Delaney, of New York City (John L. Goldstone, of New York City, of counsel), for appellant.

Martin J. McLaughlin and John F. X. McGohey, U. S. Atty., both of New York City, for appellee.

Before L. HAND, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

Writ of Certiorari Denied November 13, 1945. See 66 S.Ct. 168.

L. HAND, Circuit Judge.

Rubenstein appeals from a judgment of conviction under an indictment charging him with conspiracy to bring into the country an alien by false representations, by concealment of material facts and by false documents. He raises four objections on this appeal: (1) That the prosecution was permitted to prove that he was party to a fraudulent divorce of the alien after the crime had been completed by her entry; (2) that the court refused to declare that the alien and one, Sandler, had been validly married; (3) that the prosecution was allowed to ask the defendant upon the stand whether he had been disbarred or suspended from the bar; (4) that the indictment did not charge, and the evidence did not prove, any crime. The evidence was such that a jury might have found the following facts. A Czechoslovakian, named Alice Spitz, entered the United States on a temporary visa on November 17, 1938, which allowed her a sojourn of only six months: until May 17, 1939. She got an extension for another six months in the spring of 1939, but wished to remain longer; and in July of that year consulted one, Muller, of whose wife she was a family connection, as to how she might do so. She suggested to him that she might get married to an American, just to stay in the country, and after entry she would get a divorce. Thereafter Muller induced one Sandler to take up this proposal; and introduced him to Spitz, who asked him to marry her "because I would like to have my parents from Czechoslovakia here and the only way I could do it, I thought, was to marry, and then I asked him if he would do it, and he said yes." She told him she did not wish to live with him, but that she would give him $200. Sandler's account of the conversation was substantially the same: If she married him, she could remain in this country, "and after six months time there will be a divorce, and she said there will be something for me, and that she will give a sum of $200 to me." The couple were married in Newark, New Jersey, on July 29, 1939, by a judge; they at once separated, always lived apart, and the marriage was never consummated. The evidence does not show by what means Spitz succeeded in staying in the country after the end of 1939, but she was still here in the spring of 1940 and she consulted Rubenstein about getting a visa for her as the wife of Sandler. She gave him her own home address in Manhattan, and Sandler's in Brooklyn; and thereafter she and Sandler had an interview, or interviews, with him, at which they told him that they had agreed that the marriage was to last only six months, after which they were to be divorced.

Sandler objected to signing a paper which Rubenstein presented to him at one of these interviews, saying that that was not part of the bargain, but upon Rubenstein's assurance that it was only a formality and that "the divorce would take place right after that," he consented. The paper which he signed was a petition for the grant of a visa, upon a form on which the specific details were unfilled. Sandler never swore to it at all; the details were typed in after he signed it; and a jurat was added. The statements filled in were false in a number of particulars: e.g. his address, his net worth and his income. The petition, when completed, declared that Spitz was his wife and asked that she might have an immigration visa. Rubenstein sent this petition to the Commissioner of Immigration, to whom it was addressed, supported by an affidavit, purporting to have been sworn to by Muller that he had known Sandler for at least fifteen years. That was false and Muller had signed the affidavit in blank. He also submitted an affidavit purporting to have been sworn to by one, Isaac, stating that he had known Sandler for twenty years. Sandler knew no such person. All three documents bore the date, August 20, 1940; and on December 7, 1940, Rubenstein wrote a letter to the American Consul at Montreal in which he enclosed a fictitious letter stating the present employment and earnings of Sandler. Upon these papers Spitz received a visa in Montreal on December 20, 1940, by means of which she entered the United States.

On January 27, 1941, Rubenstein procured one Haimowitz, to sign a false affidavit of service upon Sandler of a summons and complaint in an action of divorce brought by Spitz against him on the ground of adultery. Haimowitz never served Sandler and Sandler never answered. Rubenstein also on April 5, 1941, procured Haimowitz to sign a false affidavit, that Sandler was not in the army at the time. Finally, when the cause came on for trial as an undefended divorce, Haimowitz, at Rubenstein's instigation, swore falsely before the official referee that he had discovered Sandler and a woman together at night in a room in circumstances that were sufficient to support a decree. On this a divorce was granted.

Rubenstein's complaint of the admission of all evidence concerning the divorce is that it was an independent and disconnected crime, the conspiracy having ended when Spitz entered under the immigration visa. He is right in saying that the crime ended with the entry; but it by no means follows that evidence of the divorce was not relevant to the crime. Before she obtained the fraudulent visa Spitz had told Rubenstein that there was to be a divorce; Sandler had said the same thing; and Rubenstein had assured him that there would be a divorce almost at once. If the spouses' intent at the time of the ceremony was probative of fraud upon the immigration officials (as we shall show that it was) it was relevant to prove that they were later divorced, because it went to confirm their testimony as to what they had originally intended and agreed upon. We are therefore all agreed that the fact of the divorce was relevant; indeed this becomes at once apparent if we consider how damaging to the prosecution's case it would have been, if no divorce had followed. However, Rubenstein's objection goes further: as we understand it, it is that, even though the divorce per se was admissible, it was not necessary in order to establish it to prove in addition that Haimowitz's two affidavits and his testimony before the referee at the hearing were perjured, or that Rubenstein suborned that perjury. Were that true, the evidence would have been so damaging, that we are not sure that the verdict should stand. We need not say, because we do not think that it was erroneous to admit the evidence. Sandler had already testified that he never was served with the summons and complaint; that he was in the army on April 5, 1941; and that he never knew of the divorce until September, 1941. He had also testified that Rubenstein had suggested to him that he should "get a girl and go to a hotel room"; that he had refused; and that he had never been found with any woman at the place mentioned in the divorce testimony. With this testimony in the case it was impossible to prove the fact of the divorce without incidentally proving that Haimowitz's affidavits and his testimony were perjured; and that led inevitably to Rubenstein himself as the author. The prosecution at least had to prove the complaint, its service, the order of reference, the findings and the interlocutory and final, decrees: nothing short of these would have shown that the parties had really put through a collusive divorce of the kind that they had agreed upon. But those documents on examination (especially the recitals of the interlocutory decree) disclose Haimowitz's perjuries, when coupled with the earlier testimony. Thus, Haimowitz introduced testimony as to no new crime; true, he did confirm the inferences to be drawn from the testimony of Sandler, but we are not aware that it has ever been held that it is error for the prosecution to buttress its facts as much as possible. It had to prove a collusive divorce and the precise form which the collusion took it could not control; Rubenstein had chosen what that should be, and any proof relevant to it was relevant to the charge.

Besides even if the affidavits and the testimony had not been competent, Rubenstein was not injured. No fraud was practised on Sandler; he was indifferent to the form of the divorce provided it went through. The fraud was on the court, and there would have been a fraud, though Sandler had actually committed adultery, for collusion or condonation invalidates a divorce whatever the defendant's conduct. Moreover, Rubenstein never intended that Sandler should do more than go through the form. We cannot understand how he was more deeply stained because he suborned Haimowitz to swear to the two affidavits and the hearing, than if he had put through the divorce as he proposed. The outstanding fact is that the divorce was too deeply interwoven with the conspiracy not to involve in its proof the means by which it was accomplished; and it is well settled law that evidence which is relevant to the proof of one crime is not incompetent because it discloses the commission of another. Finally, after a sedulous examination of the record, we have been unable to find any objection at the trial which distinguished between the papers showing the divorce, and Haimowitz's affidavits and testimony as to his perjury. The single objection was that all were "collateral": that was not enough to call the judge's attention to the exceedingly refined distinction which is brought forward for the first time on this appeal.

Rubenstein's second objection...