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United States v. Zborowski

decided: November 10, 1959.


Author: Lumbard

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. ยง 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" requrement 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) ...

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