United States v. Rubinstein

• Decision Date: 05 April 1948
• Docket Number: No. 125,Docket 20802.,125
• Citation: 166 F.2d 249
• Parties: UNITED STATES v. RUBINSTEIN et al.
• Court: U.S. Court of Appeals — Second Circuit

166 F.2d 249 (1948)

UNITED STATES v. RUBINSTEIN et al.

No. 125, Docket 20802.

Circuit Court of Appeals, Second Circuit.

February 5, 1948.

Writ of Certiorari Denied April 5, 1948.

Edwin B. Wolchok, of New York City, and Lemuel B. Schofield, of Philadelphia, Pa., for Serge M. Rubinstein, appellant.

George Wolf, of New York City, and Thomas D. McBride, of Philadelphia, Pa., for Allen Gordon Foster, appellant.

John F. X. McGohey, U. S. Atty., of New York City (Irving H. Saypol, Chief Asst. U. S. Atty., and Keith Brown and Bruno Schachner, Asst. U. S. Attys., all of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

Writ of Certiorari Denied April 5, 1948. See 68 S.Ct. 791.

CHASE, Circuit Judge.

Appellant Rubinstein was indicted by a grand jury in the Southern District of New York for five separate violations of Sec. 11 of the Selective Training and Service Act of 1940.¹ The relevant part of that statute reads as follows: "Any person who shall knowingly make, or be a party to the making of, any false statement or certificate as to the fitness or unfitness or liability or nonliability of himself or any other person for service under the provisions of this Act, or rules, regulations, or directions made pursuant thereto, * * * or any person or persons who shall * * * conspire to do so, shall, upon conviction in the district court of the United States having jurisdiction thereof, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment, * * *."

The first count in the indictment charged that Rubinstein made, in violation of the above statute, false statements to his local draft board as to his nonliability for service in support of an application on February 2, 1943 for re-classification from class I-A to class III-B, i. e., for a dependency deferment. The allegedly false statements were in effect that he had no assets from which he could support his dependents if he were inducted into the armed forces; that they would have to live on such allotments as the government made; and that he had exhausted his capital resources to pay his expenses, which in the years immediately preceding had exceeded his income.

The second count alleged that Rubinstein and Allen Gordon Foster, the other appellant, had on the same date, February 2, 1943, knowingly made, and were parties to the making, of false statements as to the former's nonliability for service under the provisions of the statute by submitting to his draft board an affidavit in which it was stated in substance that his "functions" were of such a character that the "successful continuance" of the operations of Panhandle Producing and Refining Co., Midway Victory Oil Co., and Panhandle Steel Products Co., depended upon his "remaining with" those companies; and that it would be impossible to replace him "without seriously impairing the drilling program and otherwise seriously hampering the activities of" those companies.

The third count charged that the two appellants and others unknown conspired to do the unlawful acts charged in the second count.

The fourth count alleged that appellant Rubinstein and one Hart, who was indicted and convicted but has not appealed, knowingly made, and were parties to the making, of false statements on or about October 12, 1943, as to the nonliability of Rubinstein for service under the provisions of the statute by submitting to his draft board on or about October 12, 1943 an affidavit falsely stating that he was executive assistant to the president of Taylorcraft Aviation Corporation; had been so employed on August 2, 1943; and was in charge of financial and administrative matters for that corporation.

The fifth count alleged that Rubinstein and Hart, and others unknown, conspired to do the unlawful acts charged in the fourth count.

Rubinstein and Foster were both convicted by a jury. The former was sentenced on each count to imprisonment of two and one-half years and to pay a fine of $10,000, the imprisonment sentences to run concurrently. The latter was sentenced on each count to imprisonment and fined $5000, the imprisonment sentences being suspended.

Each of the appellants attacks the judgment upon several grounds which will be stated as reached. Most apply to both but one only to Rubinstein as will be indicated. The following statement of the facts will suffice, for the record contains ample evidence to take the case to the jury and to support the verdict.

Rubinstein was an active and successful business man engaged in financial operations of considerable magnitude with offices at No. 63 Wall St. in the City of New York. He was a national of Portugal residing in this country with his wife and had other dependents. He was within the age limits which made him, subject to the provisions of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq., liable for military service in the armed forces of the United States and he had before February 2, 1943 complied with the statutory requirements. His original I-H classification was on March 3, 1942 changed to III-A, a dependency deferment. This classification was on November 25, 1942 changed to II-B, an occupational deferment. Thereafter his local draft board temporarily changed his classification to I-A and notified him to appear for hearing on February 2, 1943. He then appeared and submitted the affidavits containing the written statements both as to his dependents and as to his connection with the companies named in the second count which the jury justifiably found to have been knowingly false. The gist of his statements concerning dependents is in the following quotation from his affidavit: "Should I be inducted, none of the aforesaid persons, including my wife, her family, my mother and my aunt will receive any income from any source except such sums as they may receive from the United States Government. I have no assets from which I could otherwise provide for the support of those people."² He closed this affidavit with these words, "In view of my occupational and dependency status, I respectfully request that I be reclassified III-B." This was a request for a dependency deferment but when he appeared at the hearing on February 2, 1943 and submitted the affidavit he stated orally that he desired to be reclassified II-B, an occupational deferment, though he did not withdraw his written request for the III-B classification. He also submitted Foster's false statement at this time in support of the request for an occupational deferment. As a result of this hearing he was reclassified II-B by his local board. On an appeal taken by the government to the Appeal Board he was on May 7, 1943 reclassified I-A. On June 10, 1943, he was advised that he would be inducted in July and asked to fill out form 304, which was the regular personal history statement required of an alien. He did so and therein informed the local board that proceedings had been commenced to deport him as an alien who had entered this country illegally. He made a fruitless appeal to the President to have his I-A classification changed, that classification being affirmed on September 7th, 1943. But on this same date, as it happened, his local board reclassified him II-B and the government again appealed. This appeal brought about a I-A classification for him on October 2, 1943 and he was ordered to report for induction on October 20th.

Apparently nothing daunted, Rubinstein then requested a rehearing which was granted by the local board and that hearing was set for October 12th. On this date he appeared and submitted a false affidavit showing his employment by the Taylorcraft Aviation Corporation on a selective service form known as 42A signed by defendant Hart. This affidavit falsely represented the time of his employment and the need of that corporation for his work on its behalf. His local board did not, however, change his classification from I-A but ordered him to report for induction on November 17, 1943. On November 16, 1943, he filed with his local board what is known as form 301 in which he requested exemption from service as a neutral alien. He had at all times been entitled to this exemption upon request made in accordance with the statute, United States v. Haug, 2 Cir., 150 F.2d 911, and it was granted him, the condition being, as the statute provided, that he could not thereafter become an American citizen.³

Both appellants insist that, even assuming arguendo that the statements they made were false, they committed no substantive offense and consequently no conspiracy was proved, because the statute covers only false statements as to fitness or unfitness and liability or nonliability for service. They say that their statements were made merely for purposes of obtaining "deferment" and thus not within the statute at all. They distinguish Kreibich v. United States, 8 Cir., 261 F. 168, holding that statements made to obtain a deferred classification were statements asserting non-liability for service, on the ground that the Selective Draft Act of 1917,⁴ there construed, was different from the Act of 1940. And they are right to this extent: Under the 1917 Act liability for service was made dependent upon the action of the local draft boards in determining financial and physical condition and occupational status, while the 1940 Act made liability for service wholly dependent upon statutory provisions. It left draft boards without power to discharge a registrant from liability, giving them only the power to defer the induction date of those liable for service. But if the appellants are right as regards the construction they would have us give the 1940 Act, Congress left a loophole in it enabling registrants and those who aided them to make false statements with impunity in support of requests for a deferred classification.

Though criminal statutes are to be construed...