United States v. Weiner, 572

• Decision Date: 30 April 1973
• Docket Number: No. 572,Docket 72-2284.,572
• Citation: 479 F.2d 923
• Parties: UNITED STATES of America, Appellee, v. Murray Bernard WEINER, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

479 F.2d 923 (1973)

UNITED STATES of America, Appellee, v. Murray Bernard WEINER, Appellant.

No. 572, Docket 72-2284.

United States Court of Appeals, Second Circuit.

Argued February 1, 1973.

Decided April 30, 1973.

Milton S. Gould, New York City (Shea, Gould, Climenko & Kramer, Michael Lesch, New York City, and Frank C. Razzano, Yonkers, N. Y., on the brief), for appellant.

David M. Brodsky, Asst. U. S. Atty., S. D. New York (Whitney North Seymour, Jr., U. S. Atty., and John W. Nields, Jr., Asst. U. S. Atty., S. D. New York, on the brief), for appellee.

Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.

ROBERT P. ANDERSON, Circuit Judge:

Murray Weiner, then a branch chief for the Securities and Exchange Commission in Washington, D. C., was called to testify on August 3, 1966, before the Grand Jury for the United States District Court for the Southern District of New York pursuant to its investigation of possible violations of 18 U.S.C. §§ 201, 371, specifically whether confidential, non-public information of the SEC concerning the Georgia Pacific Corporation had been improperly disclosed by a public official. During the course of his Grand Jury testimony, Weiner was examined concerning his relationship with a New York attorney, Philip Peltz, who was later convicted of four counts of violations of the securities laws arising out of the activities then under investigation by the Grand Jury, see, United States v. Peltz, 433 F.2d 48 (2 Cir. 1970), cert. denied, 401 U.S. 955, 91 S. Ct. 974, 28 L.Ed.2d 238 (1971). In response to questions, Weiner said that he had met Peltz once, in February or March, 1966, at the Manhattan apartment of a mutual friend, Seymour Katz, but that otherwise he had never met or written to Peltz and, as far as he could remember, he had never talked with him on the telephone. He did, however, mention a late night telephone call on April 15, 1966, that awakened him out of his sleep, but he said that he never knew who the party was who had called. Weiner was subsequently indicted and convicted of perjury, 18 U.S.C. § 1621, on the basis of this Grand Jury testimony.

On appeal, he asserts certain errors in the failure of the trial court to strike certain testimony and in its failure to instruct the jury that some of the allegedly false statements were not proven. Finding no reversible error, we affirm.

At the trial of Weiner on a single count of perjury, Peltz was the Government's chief witness and he testified extensively concerning meetings and telephone conversations with Weiner, as well as letters received from him. As to the meetings, Peltz said that he had met Weiner five or six times, beginning with a social gathering sometime in 1963. Thereafter he saw him at one or two other social gatherings between 1963 and early 1966. The next occasion when they met was at Katz' apartment in February, 1966, which was the incident acknowledged by Weiner in his Grand Jury testimony.

Peltz also testified that he met Weiner again at Katz' apartment on a Sunday morning either March 13 or 20, 1966, (hereinafter referred to as the March 20 meeting). At that time, according to Peltz, Weiner had a plaid suitcase and he showed Peltz some sheets of paper printed with "purplish" ink. In support of Peltz' testimony concerning this meeting, the Government offered the testimony of two SEC employees that Weiner had received in March, 1966, a confidential memorandum concerning the Georgia Pacific Corporation which had been printed with purple ink, although it was also acknowledged that the use of purple ink was not particularly distinctive or unique with SEC documents. Another Government witness, a member of Weiner's car pool in March, 1966, testified that Weiner sometimes carried a plaid suitcase to work on Fridays, if he were going traveling. The Government also introduced evidence that Weiner had purchased an Eastern Airlines ticket on March 18, 1966, which might have been for a flight from Washington to New York.

Peltz testified to a final meeting with Weiner on either April 17 or 24, 1966, for Sunday breakfast at a Second Avenue restaurant (hereinafter referred to as the April 17 meeting). In support of this testimony, the Government introduced into evidence an Esso credit card charge record slip showing that Weiner had purchased gasoline on April 17, 1966, at a station in New Jersey just outside the Holland Tunnel.

With regard to telephone calls, Peltz testified that he had made four or five to Weiner and had received two or three from him. On some of these calls, Peltz gave no details and on others he was no more specific than to say it was a call which he made from a coinbox outside the Bronx County Court House, or from his girl friend's apartment. There were two calls, however, the substance of which he more fully related.

The first was from Peltz to Weiner on April 9, 1966, and concerned Peltz' efforts to arrange a date for Weiner with a certain girl and Weiner's suggestion to Peltz that he contact one Irwin Deutsch who could recommend a stockbroker for Peltz. Peltz admitted that he had no independent recollection of the date of that call, but his memory had been refreshed by a notation in his personal diary. In substantiation of this testimony, Deutsch testified that Weiner telephoned him on April 9 or 10 and asked if Deutsch could recommend a stockbroker for a friend, and Deutsch said to have the friend call him. Deutsch also testified that Peltz called him on April 11th for the name of a stockbroker; Deutsch was certain that Peltz was the friend to whom Wiener had been referring.

The second was a long distance telephone call by Peltz from a New York office to Weiner at his Maryland home at about 1:30 a. m. on April 15, 1966; that he, Peltz, had billed the call to his home telephone number and that he talked about five minutes with Weiner concerning the current status of the Georgia Pacific investigations. In confirmation of this call, telephone company records were introduced which showed that a five and one-half minute call from the New York office to Weiner's home number, billed to Peltz' home number, had in fact been made on April 15th.

Peltz also testified to receiving three letters from Weiner. The first, dated September 26, 1963, recited that Weiner and Peltz had met some months previously, and, on the strength of this, Weiner was seeking some information from Peltz concerning a friend of Weiner's who wanted to sell a car in South America.

The second letter, dated March 30, 1966, was a request for Peltz to arrange a date for Weiner with a girl. It also included some references to the freeing-up of lettered stock. The third letter, dated May 5, 1966, was another request for Peltz to arrange a similar date. Both of the 1966 letters were signed "Mel," and Peltz testified that Weiner was using the pseudonym "Mel Fine" at that time.

To show that Weiner was the author of the May letter, the Government introduced testimony from an F.B.I. expert to the effect that it was only an extremely remote possibility that the letter was not typed on a certain IBM typewriter which, in May, 1966, was located some seventy-five feet from Weiner's office in the SEC building.

In his defense, Weiner admitted writing the 1963 letter and acknowledged that he must have met Peltz sometime prior to that, as was indicated in the letter; however, he claimed that he had no independent recollection of the letter or meeting and that he did not knowingly lie to the Grand Jury concerning these items.

As to the remaining meetings, telephone calls, and letters, Weiner denied all of them except the February, 1966, meeting which he had divulged to the Grand Jury. He also testified that he had traveled to New York often in the spring of 1966 to visit an ill father.

Weiner explained the April 15 telephone call by saying that he had received a call sometime after midnight on that date, but that he was so sleepy that he terminated the call without knowing who was on the other end. He claimed that the five and one-half minute length of the call, as recorded by the telephone company, was a result of his rather unusual Eroica phone and its failure to disconnect properly.

Weiner also vigorously disputed, with expert testimony, the opinion that the May letter was very likely typed on the SEC typewriter. Furthermore, he introduced testimony to show that in any event it would have been unlikely for him to have used that particular machine.

Although this was a one count indictment, by its Bill of Particulars, the Government had specified three instances of perjury in Weiner's Grand Jury testimony: (1) that he had only met once with Peltz; (2) that he could not recall talking on the telephone with him; and (3) that he had never written him. Without the so-called two-witness rule,¹ there would be little need for discussion on the issues in this case, as Peltz' testimony alone would be sufficient to convict Weiner on any one of the three perjurious statements. In prosecutions for perjury, however, it has long been the rule that a conviction may not be obtained solely on the uncorroborated oath of one witness, Weiler v. United States, 323 U.S. 606, 607, 65 S. Ct. 548, 89 L.Ed. 495 (1945); Hammer v. United States, 271 U.S. 620, 626, 46 S.Ct. 603, 70 L.Ed. 1118 (1926). The rule is satisfied by the direct testimony of a second witness or by other evidence of independent probative value, circumstantial or direct, which is "of a quality to assure that a guilty verdict is solidly founded." United States v. Collins, 272 F.2d 650, 652 (2 Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960).

The precise formulation of the quality of the corroborating evidence, however, has resulted in what appears, on its face, to be a division among the Circuits. This Circuit has held that the independent evidence must, by itself, be "inconsistent with the innocence of the defendant," United States v. Hiss, 185 F.2d 822,...