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United States v. Leviton

decided: November 30, 1951.

UNITED STATES
v.
LEVITON ET AL.



Author: Clark

Before SWAN, Chief Judge, and CLARK and FRANK, Circuit Judges.

CLARK, Circuit Judge.

These are appeals from convictions under an indictment framed in twenty-one courts. Counts one to eleven charged that defendants "wilfully and knowingly did make and cause to be made false and fraudulent statements in 'Shippers' Export Declarations'" in violation of 18 U.S.C. § 80 (1946 now 18 U.S.C. §§ 287, 1001. Counts twelve to twenty-one charged that defendants wilfully and knowingly exported flour and lard in violation of Presidential Proclamation No. 2413, 54 Stat. 2712, promulgated July 2, 1940, pursuant to 50 U.S.C.App. § 701 (1946 Ed.). There was no conspiracy count. After a trial of over a month the jury found Leviton and Blumenfeld guilty on all twenty-one courts, while it acquitted Markowitz on counts twelve to twenty-one and found him guilty on counts ont to ten, the eleventh count having been dismissed as to him during the trial. Both Leviton and Blumenfeld received sentences of imprisonment and fines on each of the first eleven counts, Leviton three years to run concurrently and $1,000 fine on each, Blumenfeld a year and a day concurrently, with $500 fine on each. On the other counts they received suspended sentences, with probation of two years and a year and a day respectively after termination of their previous sentences. Markowitz received concurrent sentences of a year and a day on each of the first nine counts, with suspended sentence and probation for two years on the tenth count. On this appeal all the defendants challenge the adequacy of the indictment and the sufficiency of the evidence, and they also assign several errors in the conduct of the trial.

The case as presented by the prosecution - the defendants offering no evidence - was as follows: During the period covered by the indictment - October 11, 1947, to March 12, 1948 - private export to Italy of, among other things, wheat and lard was prohibited by the presidential proclamation cited. This restriction, however, did not apply to foreign relief agencies which were authorized to ship wheat (by merely placing the general license symbol "RLS" on their export declarations) and lard (by including a special license number on declarations). At this time Blumenfeld was a merchandise exporter for a private relief agency, Leviton the Traffic Manager for the Barr Shipping Company (the freight forwarding firm handling all New York shipments to Italy for American Relief for Italy, a private relief agency), and Markowitz a visa clerk in the Customs House whose function it was to examine and approve export declarations.

Apparently after a direct, but unsuccessful, attempt through one Saxon to interest Rizzotti, Traffic Manager of American Relief, in his plan to evade the restrictions on private export, Blumenfeld contacted Markowitz and the following scheme was devised. Blumenfeld would make the purchase of the commodities to be exported. Leviton, who administered all regular American Relief shipments generally for Barr, acted as freight forwarder, preparing the necessary documents for transocean shipment, including the shippers' declarations. On these declarations he described the shipments as for the account of American Relief for Italy, care of Societa Soveglianza, Genoa, inserted the name not of the Barr Shipping Company, but of the person from whom Blumenfeld had purchased the commodities as exporter, and inscribed each with the general or special license designations described above. These false declarations were then approved by Markowitz as visa clerk for the Bureau of Customs, since steamship companies would not ship without an export declaration thus cleared.Some ten shipments of varying quantities of wheat or lard were thus effected. On the eleventh attempt, however, another visa clerk in the Customs Bureau received the declaration in question and in this way the scheme was unconvered. Counts one to eleven of the indictment cover the eleven false declarations, counts twelve to twenty-one the ten shipments which were completed.

Defendants' attack on indictment counts one to eleven is that the false statements and representations made in the export declarations were not made "in a matter within the jurisdiction of the Bureau of Customs, United States Treasury." This contention is based on the ground that the control of exports was lodged with the Department of Commerce by Act of July 2, 1940, as amended, 50 U.S.C.App.§ 701 (1946 Ed.), and that the main purpose of these declarations was an informational one for the benefit of the Office of International Trade and the Bureau of the Census. But this assumes too narrow a view of the term "jurisdiction" in 18 U.S.C. § 80 (1946 Ed.). Congress was here concerned with such false statements as might impede the "exercise of federal authority." Terry v. United States, 8 Cir., 131 F.2d 40, 44. The clearance of export shipments was specifically conditioned on presentation of a shipper's declaration to the Collector of Customs. 15 U.S.C.A. § 174, 15 CFR, 1947 Supp. §§ 30.30, 30.31. Hence submission of such declaration to the Bureau, whether or not accepted or acted upon in the prescribed manner, brings it within the jurisdiction of that Bureau. See United States v. Bowman, 260 U.S. 94, 43 S. Ct. 39, 67 L. Ed. 149; United States v. Gilliland, 312 U.S. 86, 93, 61 S. Ct. 518, 85 L. Ed. 598.

Markowitz also raises the question of the validity of the indictment counts one to ten in the light of the proof as to his part in the scheme. As with the other two defendants, his indictment followed the language of the statute in alleging that he made or caused to be made false statements in the export declarations in question. Viewed strictly, the proof established only that he aided in and made possible the use of the declarations, knowing their fraudulent character. Nonetheless, there is no fatal variance between the crimes alleged and the acts proven. The making of false statements in the jurisdiction of a governmental department necessarily includes and requires that such statement be presented with an intention that it be acted upon. United States v. J. Greenbaum & Sons, 2 Cir., 123 F.2d 770. Markowitz' role in the presentation was too crucial for us to say that he played no part in the making of false statements as proscribed by the statute. We have pointed out that indictments under this provision "are to be upheld when they acquaint the defendant with the offense of which he stands charged, so that he can prepare his defense." United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921, certiorari denied Goldsmith v. United States, 309 U.S. 678, 60 S. Ct. 715, 84 L. Ed. 1022; United States v. Achtner, 2 Cir., 144 F.2d 49, 51; United States v. Sherman Auto Corp., 2 Cir., 162 F.2d 564, 565. Especially after jury verdict, as here, the test becomes one of real prejudice. Grey v. United States, 7 Cir., 172 F. 101. There is no intimation that such occurred and we accordingly hold the indictment also valid as to Markowitz.

We turn next to defendants' contentions as to the insufficiency of proof. The evidence of Leviton's part in the making of the false declarations was so clear that there can be no question as to him; indeed he makes no serious challenge on this issue. Blumenfeld's conviction on counts 12 to 21 alleging conscious violation of the presidential proclamation prohibiting export of certain commodities to specific areas was supported by evidence that he knew of the license requirement and actually made the shipments in question. He was in fact the actual exporter. As to the fraudulent export declarations covered by counts one to eleven, there is admittedly no direct proof that he took any part in the physical preparation of these documents or even that he ever saw them. But he was the one to profit most directly from them, and appropriate circumstantial evidence justified the inference as to his guilt in the absence of any evidence to the contrary. Thus we do have the proof of Blumenfeld's meeting with Rizzotti to arrange for the making of the exports; though this was unsuccessful in its immediate purpose it tended to show Blumenfeld's knowledge as to the need of a relief license to make the shipments. Moreover, in addition to evidence of an attempt on Blumenfeld's part to induce Saxon to keep silent, there was also evidence connecting Blumenfeld with similar schemes not covered by the indictment. Thus Blumenfeld was shown to be present at another meeting where Leviton agreed to sell a similarly fraudulent export declaration purporting to describe flour shipments to Brazil for $4,000, and therefore well aware of the fraudulent methods employed by Leviton in making the shipments. True, the admission of evidence as to any declarations not covered by the indictments was sharply challenged by the defendants. But the circumstances out of which they grew were too neatly akin to those covered in the indictment to say that such evidence was incompetent on the issues of design and intent here. King v. United States, 8 Cir., 144 F.2d 729, certiorari denied 324 U.S. 854, 65 S. Ct. 711, 89 L. Ed. 1413; Harper v. United States, 8 Cir., 146 F.2d 795; Silkworth v. United States, 2 Cir., 10 F.2d 711, 720, certiorari denied 271 U.S. 664, 46 S. Ct. 475, 70 L. Ed. 1139; 2 Wigmore on Evidence §§ 301, 304, 3d Ed. 1940; 3 Vand.L.Rev. 779, 1950. Thus, ignorance as to details cannot make insufficient unexplained and uncontroverted evidence indicating that Blumenfeld was aware of the necessity for a license and intended Leviton to export the commodities in question for him without a valid one. See Boushea v. United States, 8 Cir., 173 F.2d 131.

The sufficiency of the evidence as to Markowitz, since he was convicted only on the counts covering the ten false documents he initialed by way of approval for the Bureau of Customs, turns upon his knowledge of their falsity. But his signatures on these declarations and upon four Brazilian declarations utilized in the companion schemes were unchallenged. Moreover, it appeared highly improbable, in view of the large number of declarations approved each day by the visa clerks in the Customs House, that Markowitz received these fourteen declarations in the normal course of his duties. This, in the light of the formal irregularities varying in degree but nevertheless apparent on the face of these declarations and a series of observed meetings and conversations with Leviton, was strong circumstantial proof of his guilty knowledge. In the absence of any innocent explanation of these circumstances the jury could properly draw the inference that when Markowitz approved the ten declarations successfully used in the fraudulent scheme he knew their dishonest character.

Coming to the trial, the most important issue there presented, indeed the most substantial one of the appeal, concerns the admissibility of evidence of a confession made by defendant Leviton to agents of the Bureau of Customs after he was taken into custody for questioning, but prior to his arraignment. The evidence consisted of his statements made to the agents and eventually his answers to questions which were taken down stenographically, although not signed by him. The court allowed these to be read in evidence by the stenographer as against Leviton, but excluded them as against the other defendants, and coupled this exclusion with explicit and repeated directions to the jury to disregard the evidence as against the others. Before doing this it conducted a long preliminary hearing out of the presence of the jury, with detailed examination and cross-examination of the four Customs Agents involved, and with an opposing statement from Leviton's counsel as to what Leviton would say if he had taken the stand, somewhat corroborated as to a preliminary stage at Leviton's office by a stenographer there present. This statement, if accepted as proven fact, would have made a showing of coercion probably sufficient to require exclusion. So the court ruled quite properly that this presented a conflict of fact, requiring submission to the jury of the issue under appropriate instructions. Then, after further discussion, he ruled the proffered evidence not rendered inadmissible because of delay in arraignment. Thereafter the agents repeated their testimony before the jury, no evidence to the contrary was offered, and the court submitted the issue of coercion to the jury under an appropriate charge. The verdict therefore settled (as the agents' detailed testimony showed) that there was no coercion in securing the confession. No error is assigned on this branch of the issue; on the other branch the question comes down to one of unreasonable delay in making the arraignment under the principle of McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819.

The testimony of the Customs Agents showed that they were substantially in accord with each other and did not vary in substance on the second telling. From this the following appeared: On March 25, 1948, at about 1:45 p.m., after Leviton had been under surveillance for some days, four Customs Agents entered his office at 505 Fifth Avenue and one of them asked him to come to the Customs Agents' office to talk about some office export files. He said he would be glad to do so, and when the officer asked for his files he agreed to get them and spent some time collecting them. During their stay of about half an hour he asked numerous questions; expressing no surprise, he inquired as to the shipments they were interested in (these agents had no knowledge as to this); and he admitted that he was expecting them. He also asked what he should tell the government officers and was told that he should tell the truth. Then he accompanied the agents in a taxicab to the Office of the Supervising Customs Agent at 201 Varick Street. Arriving there about 2:30 p.m. he entered a conference room to await the questioning officer. During his wait he informed the agent who was with him that "he knew that the Customs Agents were going to come to see him," that he had tried "to make a dishonest dollar," and that he alone of the Barr Shipping Company staff was implicated.

At about 3:30 p.m. the questioning officer came in, apparently to begin the interrogation; it appeared that he had been questioning other persons and business officials in the investigation the customs officers were then making. Leviton answered his initial questions by directing him to the files relevant to illegal shipments at the Barr Company office, marked "Arthur Blumenfeld." This gave the investigators the important information as to the name of the exporter involved, and the agent left to obtain the files. He returned with them at about 6:30 in the evening. Leviton then admitted that he had destroyed the file copies of the export declarations themselves. The next step occurred about 9:20 p.m.; the government suggests that the interim was taken up in procuring a stenographer, eating, etc. At that time Leviton was questioned and made answers, stenographically recorded, which laid bare the details of the scheme. The questioning was completed shortly before midnight, at which time he was taken to the Federal House of Detention. Arraignment finally took place at 7 p.m. the next day before Judge Goddard. Since no element of coercion, prolonged questioning, or exploitation of confidence is shown, see Haley v. State of Ohio, 332 U.S. 596, 68 S. Ct. 302, 92 L. Ed. 224; United States v. Carignan, 342 U.S. 36, 72 S. Ct. 97, modifying and affirming Carignan v. United States, 9 Cir., 185 F.2d 954, 957, 958, the sole contention is that the hours intervening between arrest and detailed confession - some seven and a half - tainted the latter so as to make it inadmissible.

The McNabb rule, as explained in Upshow v. United States, 335 U.S. 410, 413, 69 S. Ct. 170, 172, 93 L. Ed. 100, provides "that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the 'confession is the result of torture, physical or psychological.'" We apprehend this to be still the governing principle, notwithstanding some stress on the voluntariness of the confession in the later case of United States v. Carignan, supra. The question is therefore whether or not the detention in this case was illegal up to the moment that the confession began, for subsequent illegality cannot make invalid an already competent confession. United States v. Mitchell, 322 U.S. 65, 64 S. Ct. 896, 88 L. Ed. 1140. As we have had occasion recently to point out, the mere factor of a delay is not of itself decisive on this issue. United States v. Walker, 2 Cir., 176 F.2d 564, 566, 567, certiorari denied 338 U.S. 891, 70 S. Ct. 239, 94 L. Ed. 547. See also Haines v. United States, 9 Cir., 188 F.2d 546, certiorari denied 342 U.S. 888, 72 S. Ct. 172; Patterson v. United States, 5 Cir., 183 F.2d 687; Symons v. United States, 9 Cir., 178 F.2d 615, certiorari denied 339 U.S. 985, 70 S. Ct. 1006, 94 L. Ed. 1388; Garner v. United States, 84 U.S.App.D.C. 361, 174 F.2d 499, certiorari denied 337 U.S. 945, 69 S. Ct. 1502, 93 L. Ed. 1748; Alderman v. United States, D.C.Cir., 83 U.S.App.D.C. 48, 165 F.2d 622; United States v. Keegan, 2 Cir., 141 F.2d 248, reversed on other grounds Keegan v. United States, 325 U.S. 478, 65 S. Ct. 1203, 89 L. Ed. 1745. Rather, Rule 5(a), Fed.Rules Crim.Proc., 18 U.S.C.A., makes the touchstone one of "unnecessary delay."

We have found no definition of "unnecessary" in the cases helpful enough to close the matter for us here. In truth, we think that the traditional use of such words as "undue," "unreasonable," "convenient," "prompt," etc., is striking proof that each case involving the McNabb rule must needs be decided without resort to a semanticism that obscures the facts out of which it arises. Language, in some cases, does seem to warp the rule into a stiff formula that would make no delay "necessary" if the declarant were taken into custody during the regular office hours of an available commissioner who could arraign him. Such a formalization of the rule would, presumably, be easy to apply. But like most "simple" legal rules, the gain in efficiency of decision is more than offset by the lost adaptability to changing circumstances. Furthermore the exception implied in the restriction to "the regular office hours" of an available commissioner shows how unrealistic the principle thus stated is from both the accused's and the court's standpoint. For it operates so uncertainly as not to advance the search for truth at the trial. It means that a week-end or midnight arrest gives the officers all sorts of powers they do not otherwise possess (cf. 2 Okla.L.Rev. 337); they may then delay the arraignment as much as three days if a holiday succeeds the Sunday. See United States v. Walker and the other cases cited supra. Since arraignment before any judge or committing magistrate, state or federal, is permissible, 18 U.S.C. formerly § 591, now § 3041, Rule 5(a), F.R.Cr.P., it is too much to suppose that some such official could not be found in the vast concourse of metropolitan New York at any time of the day or night if actually needed. In this very case arraignment actually took place on Good Friday evening and before a judge, not a commissioner.

If, however, we approach the issue from the standpoint of the objective commonly asserted for the McNabb principle, the analysis becomes clear. The rule itself does not assure uncoerced confessions; other rules (such as were here applied take care of that. Nor is its primary function to confer a procedural advantage on a particular defendant specially situated. Rather it is to compel police observance of the principle to which they have always owed obedience, namely, prompt arraignment of an accused. See United States v. Carignan, supra, 342 U.S. at page 44, 72 S. Ct. at page 102, speaking of "the reason for the rule, i.e., to abolish unlawful detention." If that detention exists, the evidence, however valuable, which is its fruit, is unusable; if it does not, then the evidence (if also uncoerced) is available, no matter how bitter the consequences for the accused. On that basis the rule admitting of some delay when a commissioner is not readily available makes sense. It is natural law enforcement procedure to seek a commissioner in his office hours; it would not be natural and hence rational or reasonable to require an officer to seek out perhaps a state judge in the small hours of the morning. This explains, too, the rule that, unlike the showing of noncoercion as to a confession, the burden of showing unreasonableness of delay in arraignment rests upon the defendant, a burden here increased by the definite contrary finding of the trial judge. United States v. Walker and Patterson v. United States, both supra.

So, too, an explanation is afforded for what otherwise might seem at least a surface inconsistency in the cases. In United States v. Mitchell, supra, it was held that arraignment might be delayed to receive a volunteered confession, while in Upshaw v. United States, supra, it was held improper to delay for thirty hours in an endeavor to secure evidence for a better case. Here, too, the touchstone is decent and responsible police procedure. It is not permissible to use delay for the purposes of inducing confession; but a delay can be shown reasonable when it is induced by the voluntary act of the accused in freeing himself of the burden of guilt. So Haines v. United States, supra, 9 Cir., 188 F.2d at page 553, is directly in point. Haines was arrested between 9 and 10 a.m. and immediately taken to the office of the Secret Service in Los Angeles. There he admitted his guilt and described the counterfeiting activities under investigation. But it was not until evening that he signed the confession - embodying facts related earlier - which was admitted into evidence against him. The court held the written confession competent. The court said that Rule 5(a) was not "deliberately fashioned to fatally taint a voluntary confession for the sole reason that it was received prior to an arraignment. * * * The plain and simple requirement of Rule 5 is that the arrested person be taken before the magistrate 'without unnecessary delay' and so the question we must face is whether the delay in arraigning appellant until the next day was reasonably necessary in order to give the officials here involved an opportunity to check on and verify the available facts he had given them, this in order to determine whether justice and reason called for filing a criminal charge against him." To the same effect is the recent case of United States v. Carignan, supra, 342 U.S. at page 44, 72 S. Ct. at page 101, where the Court, in holding admissible a voluntary confession of a crime other than that charged in the original arraignment, said, "The police could hardly be expected to make a murder charge on such uncertainties without further inquiry and investigation," and went on to state the reason for the rule, "i.e., to abolish unlawful detention," which we have quoted earlier. See also Garner v. United States and United States v. Mitchell, both supra.

The facts in the case before us are directly analogous. Here the delay, though a part of it took place during the daylight hours when committing magistrates were more freely available, was likewise a reasonable one. At the very moment when the officers first approached him, Leviton showed both a sense of guilt and a desire to co-operate which he continued throughout the period until his confession was complete.Quite clearly he was ready to make the full confession later obtained at the very moment of his arrest if the agents had been more sophisticated in their approach and had then pressed for it. But delay ensued naturally and reasonably because of the search which he willingly directed and which was aimed to procure documents as dangerous to him as any fullblown oral statement. Had he been silent and unco-operative, the result might well have been ...


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