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United States v. Birnbaum

decided: February 3, 1970.


Friendly, Smith and Feinberg, Circuit Judges.

Author: Smith

J. JOSEPH SMITH, Circuit Judge:

Saul I. Birnbaum was twice tried and convicted in the United States District Court for the Southern District of New York on a 1961 indictment for bribing and conspiracy to bribe an Internal Revenue agent. On the first conviction, he was sentenced, in 1963, to concurrent eighteen-month terms, but, after reversal, 337 F.2d 490 (2d Cir. 1964), he was re-tried, convicted and sentenced in 1966 to concurrent one-year terms. This conviction was upheld. 373 F.2d 250 (2d Cir.), rehearing denied, 375 F.2d 232, cert. denied, 389 U.S. 837, 88 S. Ct. 53, 19 L. Ed. 2d 99 (1967). Birnbaum's motion to reduce sentence was denied in 1967, reargument granted and denial adhered to in 1968, aff'd on appeal, 402 F.2d 24 (2d Cir.), and cert. denied, 394 U.S. 922, 89 S. Ct. 1181, 22 L. Ed. 2d 455 (1969). Birnbaum's motions to vacate the conviction and/or grant a new trial (pursuant to 28 U.S.C. §§ 1651 and 2255 and Rule 33 of the Federal Rules of Criminal Procedure) and for evidentiary hearing and/or modification of judgment to grant probation (pursuant to 28 U.S.C. §§ 1651 and 2255 and Rule 35 of the Federal Rules of Criminal Procedure) were denied by the court without a hearing, Thomas F. Murphy, Judge, and Birnbaum appeals. We find no error and affirm the denial of the motions.

Appellant's principal claims on this appeal are twofold: that the government suppressed evidence at the second trial (the one with which we are concerned) that a chief government witness, one Eveleigh, had been promised government assistance to remain permanently in the United States, although he was under order of deportation, and that the sentence was illegal because tentative rather than final or in the alternative because a claimed provision for probation was not carried out.

I. Suppression of Evidence

The motions to vacate conviction and for new trial are based on a evidence that Eveleigh had lied in his claim that the government suppressed testimony concerning promises of favorable government action on his efforts to avoid deportation. In substance, the claim is that Eveleigh was promised a permanent stay of deportation and that this is sufficiently established, at least to call for a hearing, by three items "recently discovered" -- an affidavit by Attorney Richard H. Wels dated April 2, 1969, a set of three letters to Eveleigh from the Immigration and Naturalization Service in 1961 and land records showing the purchase of a house on Long Island by Eveleigh's wife in November, 1965.

The Wels affidavit concerned a conversation in 1961 or 1962 with one Shaffer of the Department of Justice of which Wels stated:

"* * * It is my recollection that I told Mr. Shaffer of Mr. Eveleigh's apprehension that he would be deported, reminding Mr. Shaffer of Mr. Eveleigh's cooperation with the Government and requested Mr. Shaffer to talk with Mr. Sheridan [a higher official in the Department of Justice] and have the Department use its good offices with the Immigration and Naturalization Service in Mr. Eveleigh's behalf. A few days later, Mr. Shaffer called and confirmed to me that my request had been approved and the requested action had been or would be taken. I have no personal knowledge of the extent of Mr. Eveleigh's cooperation with the Government, if any, after I told him of my conversations with Mr. Shaffer."

Birnbaum contends that this language must be interpreted as a promise that deportation would be permanently stayed, since where, as here, an evidentiary hearing has been denied the court must assume "the worst conduct by the prosecution consistent with such facts as are now known." Kyle v. United States, 297 F.2d 507, 514 (2d Cir. 1961). That case, however, presented a far different situation -- a request for papers directly bearing on the defendant's intent allegedly in the government's files, denial by the government that it possessed them, examination of the files disclosing their absence, and their subsequent unexplained appearance.

We see no sufficient basis to require a hearing at which Wels could be examined as to the meaning of his affidavit regarding Shaffer's representations to him. The telephone conversations were seven or eight years prior to the affidavit, and Wels did not purport to give the exact wording of the conversations; his affidavit was not necessarily inconsistent with the information before the trial jury since "good offices" were used to delay deportation and the jury was informed of the delay. Wels later furnished the government with an affidavit disclaiming any request to keep Eveleigh here permanently, any promise to do so or any communication to Eveleigh of such a promise. Florea and Dershowitz, attorneys employed by Birnbaum, submitted affidavits disputing Wels' version of conversations with them on the subject. All communications from Wels reprinted in the appendix have consistently denied that he asked for or received a promise of a permanent stay. In view of this, the possible ambiguity in one document, and Birnbaum's attorneys' versions of statements made to them in a manner most helpful to their cause are not enough. Although the government made no showing as to Shaffer's or Sheridan's recollection of the incident, we will not require further proceedings on so equivocal and flimsy a foundation.

Neither do the purchase of the house on Long Island in 1965 by Mrs. Eveleigh or the three letters to Eveleigh from the Immigration and Naturalization Service in 1961 support Birnbaum's claim that the trial court erred by not granting an evidentiary hearing. The purchase of a home, in view of today's rental market and steadily rising real estate market, might well be thought as consistent with the expectation that the litigation for which Eveleigh was needed would take some time to complete (it is now four years later) or with the hope expressed by Eveleigh to the jury that the deportation order would never be carried out, as with an existing promise of permanent relief. The purchase was recorded in the land records at the time, prior to the second trial, and such records were equally available to the defendant and the government. The three letters merely indicate that there was a deportation order issued and sent to Eveleigh notifying him that he was to appear on November 14, 1961 for deportation and that such order was stayed by another letter, dated November 5, 1961. The letters show only that there was an order in 1961 to report for deportation and that the order was subsequently rescinded. But the jury knew this. Eveleigh testified to the order and the jury observed that he was still here five years later. As this court stated in United States v. Keogh, 391 F.2d 138 (2d Cir. 1968):

"* * * To invalidate convictions in such cases because a combing of the prosecutor's files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict would create unbearable burdens and uncertainties. * * *" Id. at 148.

The chance that the jury would have given added weight to the claimed motive for Eveleigh to lie would seem ephemeral. The reduction in his criminal sentence, his record of corporate theft, false statements and fraud, the five year delay in deportation and his hope that he could remain here permanently were all before the jury and emphasized in counsel's attack on Eveleigh's credibility in argument to the jury.*fn1 Under these circumstances, it was ...

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