United States v. Zborowski

• Citation: 271 F.2d 661
• Decision Date: 10 November 1959
• Docket Number: No. 4,Docket 25490.,4
• Parties: UNITED STATES of America, Appellee, v. Mark ZBOROWSKI, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

271 F.2d 661 (1959)

UNITED STATES of America, Appellee, v. Mark ZBOROWSKI, Appellant.

No. 4, Docket 25490.

United States Court of Appeals Second Circuit.

Argued October 6, 1959.

Decided November 10, 1959.

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Frederic S. Nathan, New York City (Greenbaum, Wolff & Ernst, Morris L. Ernst and Norman S. Poser, New York City, on the brief), for appellant.

Herbert C. Kantor, Asst. U. S. Atty., Southern District of New York, New York City (S. Hazard Gillespie, Jr., U. S. Atty., George I. Gordon and Gideon Cashman, Asst. U. S. Attys., New York City, on the brief), for appellee.

Before LUMBARD, WATERMAN and FRIENDLY, Circuit Judges.

LUMBARD, Circuit Judge.

Mark Zborowski, appealing from his conviction and five year sentence for perjury before a federal grand jury, in violation of 18 U.S.C. § 1621, claims three principal errors requiring reversal: first, that the proof failed to comply with the "two-witness rule" in perjury cases; second, that his testimony was not material to the grand jury investigation; and third, that it was error for the trial judge to refuse to examine and make available to the defendant the grand jury testimony of Jack Soble, the principal government witness. We disagree as to the appellant's first two contentions, but as we find that the trial judge erred in refusing to make available Soble's grand jury testimony, we reverse the conviction and remand the case for a new trial.

The grand jury before which Zborowski is alleged to have sworn falsely, was impaneled in the Southern District of New York in January 1957 and it proceeded to take evidence regarding espionage. Upon the occasion of Zborowski's second appearance before the grand jury on February 20, 1957, he gave testimony under oath which the government charges was perjurious. This testimony related to whether or not he had ever met Jack Soble. The questions and answers are as follows:

"Q. You have previously said that you never met Jack Soble? A. No. On the basis of the newspapers —

"Q. You have never met him. A. Not to my knowledge. Not that I remember.

* * * * * * "Q. Well, if I were to tell you that Jack Soble has stated that he met you in the company of this first contact, would that have any effect on your answer? A. I don\'t remember. I just don\'t remember a thing like that.

* * * * * *

"I am just telling you truthfully that I don\'t remember having met Jack Soble."

The indictment charged that Zborowski's testimony was false and that he knew it to be false "in that he knew and had met Jack Soble on various occasions in the years 1943, 1944, 1945, 1946, and 1947."

At the trial Zborowski admitted that he had met Jack Soble on five or six occasions in the years from 1943 through 1946 and that the purpose of his meetings with Soble was to convey to him for the eventual use of the Russian government information concerning the activities of the supporters of Trotsky doctrines in the United States.

The government's case concerned itself with showing in great detail the extent and nature of the Zborowski/Soble relationship, which Soble testified covered a series of meetings at intervals of a week or more for about two years from the spring of 1943 until 1945. Soble also said that the relationship continued on a social basis until sometime in 1947 or 1948. The government urged from these numerous meetings and the extent of the discussions which then took place that Zborowski knew very well who Soble was when he testified before the grand jury.

At trial three F.B.I. agents detailed about fifteen conferences that they had with Zborowski from December 1954 until he was called before the grand jury in February 1957. Zborowski admitted having misled the F.B.I. agents in December 1954 when he denied that he had ever been a Soviet agent. It was undisputed that Zborowski's first admission that he had known Soble came only after the F.B.I. confronted him with Soble on October 7, 1957. Zborowski finally said that he had known Soble as a Soviet agent and that he had passed information to him concerning Trotskyite organizations at five to six meetings. Up to this time he had told the F.B.I. that Chaliapin and Choundenko had been his only Soviet contacts; after the confrontation he said Soble succeeded Chaliapin and preceded Choundenko as his Soviet principal. Zborowski claimed at the trial that he had not known Soble under that name until he first read newspaper accounts about Soble's arrest in January 1957.

The Two-Witness Perjury Rule Was Complied With

Appellant argues that the "two-witness" requirement in perjury cases has not been met. The two-witness rule requires "`direct' proof of the crime by two witnesses who testify that the accused violated his oath, or `direct' proof by one witness plus corroborating circumstances." United States v. Remington, 2 Cir., 1951, 191 F.2d 246, 249. We believe that the evidence presented complies with the second alternative method of satisfying the rule. Soble's testimony constituted the direct proof by one witness, and Zborowski's written admissions and trial testimony, coupled with the testimony of the government agents as to (1) the halting and belated nature of defendant's disclosures, and (2) the defendant's behavior upon confrontation with Soble, are sufficient corroborating evidence.

The Testimony Was Material to the Grand Jury Investigation Into Espionage

We said in Carroll v. United States, 2 Cir., 16 F.2d 951, 953, certiorari denied 1927, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880: "A false statement by a witness * * * though not relevant in an essential sense to the ultimate issues pending before the grand jury, may be material, in that it tends to influence or impede the course of the investigation. * * * The test of materiality in a grand jury's investigation is whether the false testimony has a natural effect or tendency to influence, impede, or dissuade the grand jury from pursuing its investigation, and, if it does, an indictment for perjury may be predicated upon it." Where the subject of the grand jury's investigation is espionage activities generally, all leads which the jury can obtain to identify those who have at any time been engaged therein are material. See Vetterli v. United States, 9 Cir., 198 F.2d 291, judgment vacated and case remanded for resentencing 1952, 344 U.S. 872, 73 S.Ct. 175, 97 L. Ed. 675. Zborowski's testimony was material to the grand jury investigation; his statement that he did not know Jack Soble had a tendency to dissuade the grand jury from making further inquiry into that phase of Zborowski's N.K.V.D. activities which he performed in conjunction with Soble.

Soble's Grand Jury Testimony Should Have Been Disclosed to the Defendant

We find several important inconsistencies in Jack Soble's testimony before the grand jury, from which we conclude that his testimony should have been made available to the defendant.

The only witnesses to any of the alleged meetings between Zborowski and Soble were the two parties themselves. If the jury believed Soble's story of numerous and frequent meetings with lengthy discussions as to a multitude of matters besides the Trotskyite activities, then the jury might well believe that the government had proven beyond a reasonable doubt that Zborowski committed wilful perjury. On the other hand, if the jury belived Zborowski's story that there had been only five or six meetings from 1943 to 1946, eight years before his first questioning by the F.B.I., and over ten years before his alleged perjury, then they might well have a reasonable doubt whether Zborowski was truthfully telling the grand jury what he remembered.

Thus the crucial witness in the case was Jack Soble, and anything bearing upon his memory of details and the time and manner in which they were recollected and reported was highly relevant.

For many years it has been the unvarying practice in this Circuit¹ to permit defense counsel to use inconsistent grand jury testimony for impeachment purposes. The rule is that when the defendant points out a possible inconsistency between the trial and the grand jury testimony of a government witness and requests the trial judge to examine the witness' grand jury minutes, the trial judge must then read the minutes in camera. Finding any substantial discrepancy, he must make available to the defendant the minutes or an intelligible segment thereof containing the inconsistency. But where the trial judge finds no such inconsistency, he should, upon request, seal the grand jury testimony so that it is available on appeal. United States v. Spangelet, 2 Cir., 1958, 258 F.2d 338; United States v. Angelet, 2 Cir., 1958, 255 F.2d 383; United States v. H. J. K. Theatre Corp., 2 Cir., 1956, 236 F.2d 502, certiorari denied Rosenblum v. United States, 1957, 352 U.S. 969, 77 S.Ct. 359, 1 L.Ed.2d 323; United States v. Alper, 2 Cir., 1946, 156 F.2d 222.

In this case the trial judge was fully advised that there were inconsistencies between Soble's trial and grand jury testimony. Soble himself admitted that there were inconsistencies. He conceded that he had not told the grand jury about a meeting that he had had with Zborowski in the spring of 1944 regarding the possible defection from the Soviets of Victor Kravchenko. At the trial Soble testified in great detail about this meeting which he said took place around the corner from where he lived at 170th Street and Broadway. Furthermore, as defense counsel pointed out at trial, the government's bill of particulars, with respect to meetings between Zborowski and Soble in the years 1943 through 1947, failed to mention any such meeting or that any meeting had taken place near 170th Street.

Moreover, the government's bill of particulars, which could have been based only on information from Soble, differed from Soble's testimony in several other respects; first, regarding the place of the second meeting between Zborowski and Soble; second, the time of day, location and...