The opinion of the court was delivered by: ZAVATT
Five years have elapsed since the defendant was indicted on March 28, 1966 and charged with having violated the Selective Service Act, 50 U.S.C. App. § 462(a), in that he knowingly and willfully evaded service in the Armed Forces of the United States by causing to be submitted to Local Draft Board No. 6, Valley Stream, Nassau County, New York (the Board), false and fraudulent information to the effect that he was a bona fide member of a Reserve Unit of the said Armed Forces (Count One), and with having been a party to the making of that false statement bearing upon his classification (Count Two).
The defendant's motion for a new trial upon the grounds hereinafter enumerated is denied.
After the indictment was filed, (1) the defendant, accompanied by his then attorney, Anthony Atlas, pleaded "not guilty" on March 30, 1966; (2) accompanied by substituted counsel, the late Harris Steinberg (whom defendant retained sometime prior to May 3, 1968 and with whom he had conferred on many occasions with reference to this case), withdrew his plea of "not guilty" and pleaded "guilty" to Count Two before Judge Mishler on July 22, 1968; (3) by substituted counsel, Stanley J. Reiben (Reiben), the defendant filed a notice of motion on September 4, 1968, returnable before Judge Dooling, for leave to withdraw his plea of "guilty" to Count Two and to plead "not guilty" to the indictment (this motion was referred to Judge Mishler, who granted the motion); (4) the case, having been assigned to me, was set for trial by jury which commenced on October 8 and concluded on October 18, 1968, when the jury, after three and one-half hours of deliberation, returned verdicts of guilty on both counts; (5) the defendant, having been sentenced to concurrent terms of five (5) years on both counts of the indictment on December 20, 1968, appealed to the Court of Appeals from the judgment of conviction, which was affirmed on July 23, 1969, United States v. Mayersohn, 413 F.2d 641 (2d Cir. 1968); (6) the defendant's petition to the Court of Appeals for a rehearing was denied September 5, 1969; (7) the defendant's petition (by new counsel, Michael S. Fawer (Fawer)) to the Supreme Court for a writ of certiorari was denied February 24, 1970, 397 U.S. 906, 90 S. Ct. 903, 25 L. Ed. 2d 87; (8) on March 26, 1970, the defendant, by Fawer, served a notice of motion for a new trial, returnable April 3, 1970; (9) by a memorandum order, dated and filed June 30, 1970, the court set August 31, 1970 as the date for an evidentiary hearing on the defendant's said motion; (10) the hearing was held on August 31, September 1, 2, 3, 8 and November 1-3, 1970; (11) defendant's counsel filed his post-hearing memorandum on November 25, 1970.
The motion for a new trial and hearing thereon.
The primary reasons for holding a hearing on the motion (rather than deciding it on the record, the moving papers and those in opposition thereto) were the serious allegations of misconduct on the part of defendant's trial counsel, Reiben, and his alleged dealings with Nathan Voloshen. Voloshen and one Martin Sweig (Sweig) had been indicted in the Southern District of New York on January 12, 1970 in a fifteen count indictment charging them with conspiracy and related offenses of false personation, conflict of interest and perjury, United States of America v. Sweig, 316 F. Supp. 1148 (S.D.N.Y. 1970). Before the instant motion for a new trial, Voloshen had pleaded guilty before trial to four counts of the indictment. After a sixteen-day jury trial before Judge Frankel, the jury found Sweig guilty on Count Six, one of the perjury counts, on July 7, 1970. In Count Six Sweig was charged with having committed perjury when he testified before a Grand Jury that he did not know Gary Roth, one of the persons named in the instant moving papers for a new trial in this Mayersohn case. On September 3, 1970 Sweig was sentenced to a term of thirty (30) months in jail and was fined $2,000.00. On April 14, 1971 Sweig's judgment of conviction was affirmed. United States of America v. Sweig, 441 F.2d 114 (2d Cir. 1971).
In his moving affidavit, Mr. Fawer charged that the defendant had not been effectively represented because, among other things, (1) Reiben, at the request of Nathan Voloshen, had failed to call as witnesses for the defendant Gary Roth and Steven Jay Novick, two Selective Service registrants "who, like Mayersohn, had paid Miller to effect a change in their classifications"; (2) had "inexplicably consented" to the Government's motion, during the trial, to quash the subpoena served on "the local draft board to produce the Roth and Novick files"; (3) had acceded to the request of Nathan Voloshen not to call Roth and Novick to the witness stand; (4) "did virtually nothing to enforce attendance at trial of a witness of vital importance, Paul Miller's wife . . . after Mr. Reiben spoke to Voloshen"; (5) that Reiben may not have elicited the testimony of Roth, Novick and Mrs. Miller "because of trial counsel's improperly motivated decision to forego this most appropriate line of defense"; (6) that, "In acquiescing to Voloshen's demand, Stanley J. Reiben may have improperly subordinated his primary obligation to his client. In so doing, he gave up an opportunity to prove the veracity of Mayersohn's testimony by the independent evidence to be offered by Roth and Novick"; (7) in his affidavit, Fawer speaks of "the dramatic change in the defense trial strategy," because of his conversation with Voloshen; (8) "It is frankly difficult to assess what effect the testimony of Roth, Novick and Mrs. Miller would have had on the jury verdict. However, if, in fact, it would have corroborated Mayersohn and thereby discredited Miller's testimony on the key issue, its effect on the jury's deliberations may well have been the return of a different verdict." The gist of these allegations by Fawer against Reiben was that, in effect, Reiben had sold his client down the river; that, but for Reiben's "improperly motivated decision," "improper subordination of his primary obligation to his client," "dramatic change in the defense trial strategy," the defendant may not have been convicted.
Before the hearing and at the request of the court, Reiben submitted his affidavit, sworn to April 9, 1970, in which he admitted that he was "telephonically contacted by one Nathan Voloshen, over the weekend of October 12-13, 1968," who told him that Roth and Novick were his relatives and that "he did not want them called to the witness stand because it would embarrass him. He advised me that if I acceded to his request, he would, if Mayersohn was convicted, arrange for him to spend one month on a prison farm and then be inducted into the Army for a period of several months." (Reiben affidavit pp. 4-5) Reiben stated in that affidavit the reason why he did not call Roth and Novick:
"The reason for my not calling Roth and Novick to the stand was my subjective determination that their testimony would be deemed inadmissible by the trial court. I advised my client of my conversations with Mr. Voloshen and of my decision not to call Roth and Novick as defense witnesses, although I do not believe that I identified Voloshen by name to my client." (Reiben affidavit p. 5)
Neither the Fawer nor the Reiben affidavit stated what the testimony of Roth or Novick would have been, had they been called as witnesses; whether either of them would have testified; whether Reiben knew that, had he called them, they would plead the Fifth Amendment. Reiben testified at the hearing. Roth and Novick were called to the stand and pleaded the Fifth Amendment. Voloshen, though subpoenaed to attend the hearing, did not appear. In his post-hearing memorandum, Fawer stated that Voloshen "was hospitalized, and his counsel advised that, in any event, his client intended to exercise his Fifth Amendment privilege not to testify." (Fawer affidavit p. 5)
After his scathing criticism of Reiben in his moving affidavit, Fawer, in his post-hearing memorandum, withdrew his claim that the defendant had been denied the effective assistance of counsel. "In view of Mr. Reiben's testimony and the absence of any testimony on the issue from Roth, Novick or Voloshen, defendant herewith respectfully withdraws his claim that a new trial should be granted on the ground that he was denied the effective assistance of counsel." (Fawer memorandum p. 5)
That leaves as the alleged grounds for a new trial on the basis of allegedly newly discovered evidence (1) that the Government refrained from interviewing Mrs. Paul Miller, at the request of Paul Miller and did not so advise defense counsel; (2) that the prosecuting attorney, Thomas O'Brien (O'Brien), misrepresented to the court and to Reiben, during the trial, that the Government could not locate Mrs. Miller, when in fact it had never looked for her; (3) that the testimony of Mrs. Paul Miller at the hearing contradicts Paul Miller's uncorroborated trial testimony; (4) that O'Brien failed to produce for the court's inspection and make available to defendant's trial counsel at the conclusion of Miller's direct testimony section 3500 material in the form of a Federal Bureau of Investigation report as to the events which occurred in Miller's apartment on the evening of his arrest, which contained a report of statements made by Miller at that time; (5) that O'Brien permitted Miller to testify that he had made no "statement" to the arresting agents when he was arrested on January 31, 1966, when in fact he had made a "statement."
The disputed issue at the trial was the essential element of criminal intent; whether the defendant, who admitted on the stand that he had paid Paul Miller $3,500, paid this as a fee to Miller to serve (as he claimed) as the defendant's "draft consultant" to obtain for the defendant a bona fide membership in a reserve unit of the Armed Forces or whether he paid this money to Miller in order to obtain a reclassification to 1-D by means of the false statement that was filed with his Board; whether, when the defendant received from the Board a notice of his reclassification he honestly believed that he had become a bona fide member of a reserve unit.
The defendant, who registered with the Board on September 27, 1960, is a person of above-average education, admittedly of better than average intelligence (* 862) and above-average business experience for his age. He attended the New York Military Academy from which he graduated with the rank of Sergeant the very year he so registered. Before he received a Selective Service questionnaire from his Board on January 17, 1962 and executed and returned it on January 29, 1962, he had attended New York University during 1960 and had taken evening courses for six months at the New School, Manhattan, New York. While employed by Inner Woven Hosiery Company as a salesman, his employer sent him to take courses on sales at the Fashion Institute of Technology for six months. His business experience to the date of the trial was as follows:
1961-62 -- accounting clerk with U.S. Plywood;
1962-63 -- sales trainee at Swank, Incorporated;
1963-67 -- salesman for Inner Woven Hosiery Company
and, for a short period of time, sales representative
for three lines of merchandise for men's furnishings stores.
By the time he was twenty-one years of age (1963) he was earning $11,500 a year (862). As of the date of the trial, he had been associated with Management Recruiters as a consultant since October 1968.
When defendant executed and returned to the Board on January 29, 1962 the Selective Service classification questionnaire, he claimed a "spasmatic condition of the gastro intestines." He was classified 1-A and so notified in February 1962.
His father, Henry Mayersohn, a lawyer, died October 8, 1962. In November 1963, the Board mailed to defendant its current information questionnaire, Form 127, which he returned the same month together with a doctor's certificate. This questionnaire was not signed by the defendant but, rather, his name was signed thereon by one Terry Galloway of Woodmere, L.I., N.Y., a girl he knew who lived in the same community in which he then lived, whom he authorized to sign his name (866). In that questionnaire, he again claimed "spasmatic condition of gastro intestines," and the accompanying doctor's letter claimed that the defendant was afflicted as follows: "Severe allergy with acute episodes of asthma since 1955" and "duodenitis or pre-ulcer inflammation of duodenum since 1961." In addition, the defendant made a hardship claim based upon the fact of his father's death, claiming that his mother and brother had been left "with no visible means of support . . . I am now employed in sales in order to ensure the support that is needed . . . This is why I feel that I would be disqualified for service in the armed forces." (867) He understood that he was making a claim that his mother and his brother were dependent entirely on him for support. The defendant testified at the trial that, when he filed this questionnaire, he was classified 1-A and did not want to be inducted into the armed forces and that he "would have preferred to have a dependency." (864)
Having received this questionnaire including a claim of dependency, the Board mailed to the defendant in March of 1964 its dependency Form 118 to be filled out. The same month, the defendant filled out and returned the same (claiming his mother as a dependent) together with a letter of his mother in which she stated: "my son Ronald's income is vital." The defendant also claimed a dependency status as to his brother: "My brother is going to college which is another reason I feel I am needed at home." The evidence indicates that the defendant's brother was not attending college at that time but that the defendant would send him to college in September if he, the defendant, were not drafted. It is also worthy of note that the Board was furnished no factual data to support the conclusory claim that the defendant's income was vital to his mother; no information as to the father's last will and testament or estate;
no evidence to support the defendant's claim that his father's death left his mother and brother "with no visible means of support"; no information as to the amount of Social Security benefits then being received by his mother and brother.
Within one week after the Board received the executed Form 118 and accompanying letter of defendant's mother, it requested the Nassau County Welfare Department (Welfare) to investigate and report as to the dependency claim. On June 1, 1964, Welfare interviewed the defendant and requested that the mother come in for an interview. She failed to appear. The facts set forth in footnote 1 suggest an explanation of her failure to appear. That same month, Welfare reported to the Board that the defendant had claimed during the interview of June 1, 1964 that he was contributing $420 per month toward the support of his mother and brother; that he was earning $10,000 annually; that he will support his brother and send him to college in September; that if he, the defendant, is drafted, his brother will be denied a college education. The fact is that the mother was receiving $5,200 a year Social Security; the brother was receiving similar benefits of $1,200 per year; the mother had received all of her deceased husband's net estate and had remarried on May 4, 1964 (Ex. 1F; 88-96, 739-880) and planned to make her home in California.
The defendant (according to his own admission on the stand) had learned of this impending marriage approximately six weeks prior to the event. The jury could very well have drawn the inference that the defendant knew of his mother's intention to remarry before he made the claim that she was dependent upon his income; that the widowed mother of two sons confided in them shortly after she noted the gleam in her suitor's eyes. But, assuming that she kept this a secret until approximately six weeks before the event (which, conceivably, would fix the revelation shortly after the defendant had filed the dependency claim and before he appeared before Welfare), the defendant's testimony as to why he did not so notify the Board is incredible: "I really didn't think of it." (881)
On June 18, 1964, the Board classified the defendant 1-A. He did not appeal. On the stand he testified: "I presented the facts as they were and I accepted their findings." (It must have been as apparent to the jury as it was to the court that the defendant did not "present the facts as they were" and that he did not accept the Board's findings.) On July 13, 1964, the defendant was notified to report for a physical examination on August 6, 1964. Shortly after he received this notice and on July 17, 1964, he visited a Dr. Telson from whom he received a letter to the effect that he had a bad back. Three days before the date to report, he also visited a Dr. Schweitzer (884).
On August 6, 1964, when he appeared for a physical examination, the defendant claimed several unverified ailments:
The examining doctor "noted that candidate has a doctor's certificate dated November 18-63 bec. of allergy. He does not appear allergic, and does not now complain about it today. He has another letter doctor's certificate d.7.-17.64 bec. of pains in lower back. He has no complaints today." "He also has a psychiatric certificate from Dr. Feldman whom he sees for past month at times once a week or other times twice a week. His complaints are all unverified." He was found to be physically acceptable for military service (97-105; 160; 928) and was so advised by the Board by letter mailed on August 19, 1964. (99-103; 891, Ex. 1-H) On August 27, 1964, the Board received a letter from a Dr. Feldman (Ex. 1-J) to the effect that the defendant was "undergoing long-term psychiatric treatment for psychonoeurotic reaction, moderately severe, with depressive features. The nature of his illness is such that it would be psychiatrically contraindicated for him to serve in the Armed Forces at this time." (Ex. 1-J; 104-6; 891-897; 978) (On the stand, the defendant testified that he did not "remember" whether he asked Dr. Feldman to send this letter to the Board or whether the doctor did so on his own initiative (895-897; 978). In view of Dr. Feldman's letter the Board notified him on September 9, 1964 to report for another examination on September 17, 1964 (108-115; 185-186; 111; 897-899). On September 30, 1964, he was notified again by a Board letter that he was acceptable for military service (Ex. 1-H; 114-115; 147 et seq.; 740-741; 897; 900-902).
On October 15, 1964, the Board mailed the defendant a notice to report for induction on November 19, 1964 (115-116). The defendant testified that when he received that notice he did not want to be inducted (925-926). On October 21, 1964 the Board received through the mail an official form DD44 (undated), purporting to come from "Commander, 89th Air Terminal Squadron, Maguire Air Force Base, New Jersey," and purporting to have been signed by "John P. Hillary, Major Air Force Reserve, Administrative Officer," certifying that the defendant had enlisted in the United States Air Force Reserve on October 16, 1964 (the day after the date of the Board's notice to report for induction) and that the defendant "is serving satisfactorily." A clerk at the Board wrote in ink on this DD44 form the date October 16, because it reported that the defendant had so enlisted on that date (119). At that time, local draft boards did not verify these DD44 forms. They assumed that they were duly issued (129, 131, 133-135).
On October 24, 1964 the Board notified the defendant by letter that it was canceling the induction notice "because of receipt of notification of your enlistment in the Air Force Reserves," and reclassified him 1-D on November 17, 1964 (120-127). One classified 1-D may not be drafted. Selective Service Regulations, § 1622.13. The defendant did not communicate with the Board thereafter.
Solomon Gottfried, an associate of Miller, is the person who filled out, signed and mailed the DD44 form to the defendant's Board. (How he met Miller, how both of them executed their scheme and their indictments and pleas of guilty will be discussed later.) He had been identified with the Army Air Force from 1954 until he resigned in March 1962. He was attached to the First Air Force Headquarters, based at Mitchell Field, Nassau County, New York, until 1958 when he was transferred to a reserve unit at Mitchell Field and remained there with that unit until it was transferred to Maguire Air Force Base, New Jersey, in 1960. From that time until he resigned in March 1962, he was stationed at that base as a Master Sergeant in charge of recruitment (559) and had occasion to deal with and was familiar with Form DD44.
He testified that he signed the name John P. Hillary on the instant DD44 form; that, as far as he knew, that name was fictitious; that he mailed the form to the defendant's Board; that he did not know the defendant; that he never met the defendant; that, for his services, he received $200 from Miller.
Master Sergeant Fylstra also testified as to the instant DD44 form. He has been attached to the 89th Aerial Port Squadron (formerly 89th Air Terminal Squadron), Maguire Air Force Base, New Jersey, since August, 1960. He testified that the DD44 form was not issued and/or sent by the 89th Squadron; that there is no John P. Hillary attached to that Squadron; that he knows all of the men assigned to that Squadron; that the defendant has never been a member of or assigned to that Squadron; that an active duty order, dated June 15, 1965, ordering that Squadron to active duty for a period of fifteen days, listed all personnel of the Squadron so activated and that the defendant's name does not appear on the roster of personnel of the Squadron attached to that order (186 et seq.). There was also received in evidence a certificate of the Department of Air Force Headquarters, Air Reserve Personnel, that a search of all available records does not show the defendant as being or having been a member of the Air Force Reserves (Ex. 5).
Gottfried (561) and Master Sergeant Fylstra (186 et seq.) explained the procedure by which one enlists in and becomes a member of the Air Force Reserve. Units of the Reserve are located at military establishments. One desiring to enlist must appear in person at the nearest such unit to ascertain whether there are any vacancies. The applicant is interviewed and given what Gottfried called "a battery of exams." Fylstra was more specific. He testified that the applicant must pass a mental and physical examination. If he passes both examinations, he thereby qualifies and his name is placed on a waiting list if there are no vacancies (571-572). It is the duty of recruiting personnel to fill a unit's table of organization as quickly as possible. As soon as there is a vacancy a qualified person on the waiting list is called to appear at the unit and becomes a member thereof as soon as he is sworn in by a commissioned officer (588). Sergeant Fylstra testified that there were openings in the reserves in 1964 but that it is the policy of the Department of Defense not to accept the application of a registrant who has received his notice to report for induction unless his draft board releases him (192-198).
Gottfried and Fylstra testified as to the duties of a member of an Air Force Reserve Unit. In lieu of a regular three year enlistment, he must serve six months of active duty. Active duty consists of basic training plus either additional training at a school or active Air Force duty for job training. In addition, he must serve in training periodically -- usually one weekend per month for five and one-half years. Members of the 89th were and are required to so serve one weekend per month and in addition must serve on active duty fifteen days per year, usually during the summer months (191-192).
It was for the jury to decide what weight, if any, it would give to the defendant's testimony as to his alleged efforts to enlist in a Reserve Unit before he did business with Miller.
He first testified that it was after he had received the Board's second notice of acceptability for military service and before he had received his notice to report for induction that he made telephone calls to reserve units. In response to a question as to why he had not made such alleged calls after he received the Board's first notice of acceptability, he replied that he could not say why he had not done so. Later in his testimony, he testified that he did not remember whether he telephoned reserve units after having received the first or the second notice of acceptability. Later, he testified that he made such calls after having received the second notice of acceptability. He claimed to have telephoned two or three reserve units. He did not remember when he telephoned; what reserve units he communicated with by telephone; the names or designating numbers of any such units; the names of any persons he talked to or whether he had telephoned the 89th Air Terminal Squadron -- the reserve unit of which the false DD form certified him to be a member performing satisfactory service. He testified that, when he telephoned reserve units, he was advised that there were no openings; that he could appear at the units and put his name on a list; that some units advised him that there might not be an opening for from one to three months; that no unit assured him of an opening within six weeks to two months; that he did not visit any reserve unit to put his name on the list. Asked why he did not want to wait a few months for an opening in a reserve unit, he replied at the trial: "Well, I felt that I would be called up for induction into the service." (746; 847; 908-921)
This is the man who represented to Judge Mishler on July 22, 1968 through his then attorney, the late Harris Steinberg:
". . . this defendant is anxious to be inducted voluntarily. He has been for some time, and just the pendency of this case has prevented it." (Transcript ...