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United States v. Cohn

decided: December 17, 1971.

THE UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HERBERT J. COHN, DEFENDANT-APPELLANT



Smith, Kaufman and Mulligan, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

Herbert J. Cohn appeals from a conviction for committing perjury (18 U.S.C. § 1621) and obstructing justice (18 U.S.C. § 1503). We affirm.

The indictment charged that he gave "false and evasive" testimony before a federal Grand Jury.*fn1 Cohn argues that his perjury conviction must be set aside because his testimony was not material to the grand jury investigation and there was no independent corroboration of the testimony of the principal government witness. In addition, he urges that false and evasive testimony will not support a conviction for obstructing justice.

On April 29, 1969, Cohn appeared under a formal grant of immunity before a federal Grand Jury investigating possible corruption among government and labor union officials. Confronted with an envelope addressed to his son on which there were penciled notes such as "indictment," "embezzlement," "5 Count GJ," and "Buffalino Father in Law," he gave the following pertinent answers in response to questions relating to the envelope:

Q. Mr. Cohn, I show you what has been marked Grand Jury Exhibit 1 and ask you whether you can identify that and whether you have ever seen it before? A. I don't recall any of this. I recognize the envelope. It was addressed to my son. I recognize the handwriting addressing it to my son as coming from my mother. It must have been a birthday card or something.

Q. Do you recognize the pencilled handwriting? A. There are several here.

Q. Do you recognize any of them? A. Offhand -- I can't say that I do.

Q. You never recall seeing that envelope? A. No. This is the first time I have seen it.

Q. You are sure of that? A. I don't recall ever seeing this thing. I don't know where it comes from or what it is all about.

Q. Does anything that is written on there refresh your recollection concerning anything you might know about? A. The only name that I see here, as I said, I knew was Buffalino. I can't make out this and I don't understand what the connection is, anyway.

Q. Well, aside from specific names, is there anything in the information that is written on there that would in any way jog your memory as to whether you know anything about what is written on there? A. I don't have any recollection of the envelope or any of this.

At trial, Herbert Itkin testified that Cohn was the middle man in late 1962 and early 1963 between himself and Morris Emmanuel, a Labor Department official, in an illegal scheme to obtain information concerning pending federal labor racketeering investigations. Cohn, according to Itkin, gave him the envelope in question and told him that the penciled notes, written by his wife, contained the information he had received from Emmanuel. An FBI handwriting expert testified that some of the notes on the envelope were written by Cohn's wife and that others contained significant similarities to her handwriting. Cohn in his testimony at the trial denied that he had given the envelope to Itkin and reaffirmed his Grand Jury testimony.

We need not pause long in considering Cohn's challenge to the perjury conviction on the grounds that his testimony, relating as it did to events which had occurred prior to the limitations period, could not be a basis for indictment. He argues that as a matter of law it could not pertain to a "material matter."*fn2 The Grand Jury's scope of inquiry, however, is not limited to events which themselves may result in criminal prosecution, but is properly concerned with any evidence which may afford valuable leads for investigation of suspected criminal activity during the limitations period. "The test of materiality is whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation." United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970). Here, ...


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