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United States v. Abrams

decided: June 3, 1970.

UNITED STATES OF AMERICA, APPELLEE,
v.
HYMAN ABRAMS, APPELLANT



Hays, Anderson and Feinberg, Circuit Judges.

Author: Hays

HAYS, Circuit Judge.

Appellant, an attorney specializing in immigration law, appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York upon a jury's verdict finding him guilty on two counts of causing false statements to be made to the Immigration and Naturalization Service (INS), in violation of 18 U.S.C. § 1001 (1964) and 18 U.S.C. § 2 (1964), on one count of endeavoring to influence a witness in a proceeding before the INS, in violation of 18 U.S.C. § 1505 (1964), and on two counts of causing an alien to fail to carry and have in his personal possession a certificate of alien registration, in violation of 8 U.S.C. § 1304(e) (1964) and 18 U.S.C. § 2 (1964).*fn1

In urging the reversal of his conviction appellant contends: (1) that the exercise of his privilege against self incrimination was improperly called to the attention of the jury, in violation of his rights under the Fourth and Fifth Amendments; (2) that the cross-examination of Leon Rosen, an attorney who testified as a defense expert on immigration matters, improperly conveyed to the jury the impression that the witness and the appellant were associated with other frauds; (3) that the trial court's charge on the count of endeavoring to influence a witness in a proceeding before a government agency constituted plain error, and that in any event it was error to submit this count to the jury; (4) that the trial court committed plain error in failing to charge that appellant's clients who testified for the prosecution were accomplices whose testimony should be scrutinized with special care; (5) that there was insufficient evidence to support appellant's conviction as to one of the counts of causing false statements to be made; and (6) that his conviction on two counts of causing an alien to fail to have personal possession of his certificate of alien registration violated the requirements of due process.

We find no merit in appellant's contentions and accordingly affirm the judgment of conviction.

I.

Appellant's claim that the exercise of his privilege against self incrimination was improperly brought to the attention of the jury is based upon the following incident. The prosecution, during cross-examination of appellant's wife, who was also his secretary, called upon her to produce certain files, which had been suppressed on appellant's motion prior to trial. Appellant's counsel waited until the following morning to interpose an objection outside the hearing of the jury. The trial judge sustained the objection, but ruled that as a matter of fairness to the government, the objection should be repeated in the presence of the jury. Appellant claims that by thus forcing to the attention of the jury the exercise of his privilege against self incrimination, his constitutional rights were violated.

The problem appellant raises is not one of constitutional dimensions. The privilege against self incrimination is not a prohibition against all inquiry. See 8 Wigmore on Evidence § 2268, at 402 (McNaughton rev. 1961). Specific instances of prosecutorial misconduct in the face of knowledge that the privilege will be asserted or of the creation of inferences adding critical weight to the prosecution's case may be so prejudicial as to require reversal. See Namet v. United States, 373 U.S. 179, 185-190, 83 S. Ct. 1151, 10 L. Ed. 2d 278 (1963). That, however, is not the case here. We do not believe the prosecution's request for the files evidenced a deliberate attempt to call to the attention of the jury appellant's prior exercise of his privilege against self incrimination. The prosecution had some basis for believing it was now entitled to inspect the files; appellant's wife admitted that she had studied the files in preparation for her testimony. In any event, the prosecution's conduct, if improper, represented only a "minor lapse" in the context of the entire trial. See United States v. Hiss, 185 F.2d 822, 832 (2d Cir. 1950), cert. denied, 340 U.S. 948, 71 S. Ct. 532, 95 L. Ed. 683 (1951). Nor do we believe the jury could have drawn any inferences from the incident of critical importance to the prosecution's case. In calling for the files, the prosecution made no reference to the fact that appellant had previously exercised his privilege against self incrimination with regard to them. The court required appellant's counsel to make only a general non-specific objection to the production of the files, and accordingly counsel merely objected to the production of the files "at this particular time." This was not a case where the jury was certain to infer that appellant had previously exercised his privilege against self incrimination. See United States v. Gross, 276 F.2d 816, 820-821, (2d Cir.), cert. denied, 363 U.S. 831, 80 S. Ct. 1602, 4 L. Ed. 2d 1525 (1960); Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724 (1964). Even assuming the jury might have drawn an inference prejudicial to appellant, not only did appellant's counsel help create the situation by failing to make timely objection to a line of questioning obviously pointed towards a request for the files, see United States v. Five Cases, etc., 179 F.2d 519, 523-524 (2d Cir.), cert. denied, 339 U.S. 963, 70 S. Ct. 997, 94 L. Ed. 1372 (1950), but the court's careful instruction to the jury, upon sustaining the objection, that the files need not be produced "as a matter of law" and that the jury was to "draw no inferences from that one way or another," was sufficient to cure any prejudice inherent in the situation. See Namet v. United States, supra, 373 U.S. at 187, 83 S. Ct. 1151.

II.

The prosecution's examination of Leon Rosen, appellant's expert witness, did not exceed the permissible scope of cross-examination. Cross-examination elicited no more than that the witness was friendly with appellant and that he had previously testified as a defense expert in two similar cases. The witness' friendship with appellant and his testifying as a defense witness in two similar cases were both relevant on the issue of bias. The trial judge did not abuse his discretion in permitting this line of inquiry. See United States v. Lester, 248 F.2d 329, 334 (2d Cir. 1957); 3 Wigmore on Evidence § 949 (3d ed. 1940).

III.

Count 5 charged that appellant corruptly endeavored to influence Lilleth Downer, a witness in a proceeding before the INS. Mrs. Downer testified at the trial that her employer, a Mrs. Gittelman, had died and that appellant told her not to divulge Mrs. Gittelman's death to the INS but to claim that she was still working for her. When she sought to carry out appellant's instructions she found that the INS investigator was aware of Mrs. Gittelman's death. Upon being taxed with lying Mrs. Downer told the investigator the whole story including Abrams' role. When later she reported to Abrams what had happened he tried to persuade her to go to the INS and recant her statement to the investigator.

Although appellant did not object to the charge given on Count 5, he now claims that it was so prejudicially erroneous as to constitute plain error cognizable under Rule 52(b), Fed.R.Crim.P. The crux of appellant's argument is that the jury, by its acquittal on Count 4 which charged appellant with advising Mrs. Downer to lie to the INS about her employer's death, indicated that it convicted appellant on Count 5 even though it found that appellant had sought only to obtain a statement from Mrs. Downer of what had happened. This, appellant concludes, shows that the court's charge did not sufficiently apprise the jury of what it had to find in order to convict on Count 5 and that the error sufficiently influenced the verdict as to constitute plain error.

Appellant's argument is untenable. The acquittal on the related count shows no more than a possible inconsistency in the jury's verdict and cannot be used to undermine the correctness of a conviction on another count. See Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 76 L. Ed. 356 (1932); United States v. Carbone, 378 F.2d 420 (2d Cir.), cert. denied, 389 U.S. 914, 88 S. Ct. 242, 19 L. Ed. 2d 262 (1967); United States v. Kahn, 366 F.2d 259, ...


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