Appeal from a judgment of conviction in the Southern District of New York, after trial before Griesa, J., and a jury, for the making of a false statement of membership in the Army National Guard, 18 U.S.C. §§ 1001, 2, for the making of a false certificate bearing upon classification under the Military Service Act, 50 U.S.C. App. § 462(a) and 18 U.S.C. § 2, and for conspiracy to make fraudulent misrepresentations regarding military status, 18 U.S.C. § 371.
Lumbard, Friendly and Oakes, Circuit Judges.
Jerrold Gottlieb appeals from a judgment of conviction entered July 25, 1973 after a seven-day trial before Judge Griesa and a jury in the Southern District of New York. Gottlieb was convicted on all three counts of an indictment which charged him with making a false statement that he was a member of the United States Army National Guard, 18 U.S.C. §§ 1001, 2, with making a false certificate bearing upon his classification under the Military Selective Service Act, 50 U.S.C. App. § 462(a) and 18 U.S.C. § 2, and with conspiring with Harry Coogan, not named as a co-defendant, to make fraudulent misrepresentations regarding his military status, 18 U.S.C. § 371. Gottlieb was sentenced to concurrent terms of two years imprisonment on each count with a fine of $5,000 on the conspiracy count and concurrent fines of $10,000 on the other two counts. Execution of the prison sentence was suspended and the defendant was placed on two years probation.
In arguing that his conviction should be reversed, Gottlieb maintains that certain highly prejudicial and irrelevant testimony was improperly admitted into evidence, that as a matter of law there was insufficient evidence to support his conviction, that the government failed to comply with the Jencks Act, 18 U.S.C. § 3500, thereby seriously weakening his defense, and that numerous instances of egregious prosecutorial misconduct occurred during the trial. Additionally, he asserts that the trial judge made several errors highly prejudicial to the defense, by unduly limiting the information the government was required to provide in its bill of particulars and in discovery, and in the instructions to the jury regarding the possible motives behind Coogan's testimony and the requisite degree of knowledge Gottlieb had to have to be found guilty. We affirm.
The undisputed evidence adduced at trial established that on August 27, 1964, the appellant, then attending Michigan State University, first registered for Selective Service with his local draft board in Mt. Vernon, New York. He was classified 2-S (deferment for undergraduates in college) and maintained this classification throughout his four years at Michigan State. The government presented evidence that in his fourth year, Gottlieb, aware that his 2-S status would terminate upon graduation in June 1968, sought to enlist in a National Guard unit. At the time, however, the Vietnam War was raging and waiting lists for the Guard were swollen. Thus, when Gottlieb applied on December 17, 1967, to the 242nd Signal Battalion headquartered in Hempstead, New York, his name was placed on a waiting list. The invariable practice was for Major Garofolo, who maintained the list, personally to speak with each applicant at the time he applied. Gottlieb did not deny that this had occurred in his case. The Major would inform the applicant of the expected waiting period and that the applicant would have to reapply every 30 days to preserve his position on the waiting list. If the applicant did not reapply, Major Garofolo would wait an additional 30 days and then send an elimination letter by certified mail.
All applicants were also made aware that the enlistment process would involve several return visits to the armory. Among other things, the applicant was told that he would have to undergo a physical and mental examination and an interview with the unit commander prior to enlistment. Each applicant also had explained to him that, once enlisted, he would have a six-year commitment which would include a call to from five to nine months of active duty for basic training purposes within 120 days of enlistment as well as attendance at drills and summer camp.
Gottlieb admitted going to battalion headquarters in December 1967 and speaking with Major Garofolo. Although unable to recall the details of their meeting, he did not dispute the Major's account of the application procedure and practice. He did deny, however, receiving an elimination letter, even though the 242nd Battalion's enlistment register indicated that he had been eliminated in early March 1968 and it was Major Garofolo's practice to send such letters upon elimination of an applicant.
In June 1968, with Gottlieb's 2-S deferment coming to an end, his local board sent him a Current Information Questionnaire (SSS Form 127) preparatory to a review of his file at the board's July meeting. The form was returned by Gottlieb on July 1. He indicated on it that on June 16, 1968, two weeks before his deferment was to have expired, he had enlisted in Company C of the 242nd Signal Battalion of the New York National Guard. He gave his service number as NG 22039037 and on an attached note wrote that he would be coming to New York for all Guard meetings. The board also received a DD Form 44 (Record of Military Status of the Registrant). The form, dated June 25, 1968, certified that Gottlieb had, in fact, enlisted for six years and would be ordered to active duty for training within 90 days. The form was purportedly signed by the commanding officer of the unit, 2d Lieutenant Myron Wittlin, although it was later established at trial that Wittlin's signature had been forged. Upon receiving the response to the questionnaire and the DD Form 44, the local board reclassified the appellant 1-D (Member of Reserves) and informed him that he would remain so classified as long as he was a member of the unit. Gottlieb never again communicated with his local board.
Much of the testimony at trial focused on Gottlieb's alleged enlistment on June 16, 1968. It was undisputed that Dan Molinoff, Gottlieb's brother-in-law and son of Dr. David Molinoff, had brought the appellant to the Huntington Station Armory on Long Island to meet with Harry Coogan, a long time friend of Dr. Molinoff. Coogan was a full-time unit administrator in the New York National Guard. According to Coogan, who testified at trial for the government, Gottlieb explained to him that his deferment was running out and then asked if there was a slot for him in the Guard. Coogan responded that there was at least a year's wait, but that he could arrange to have appellant's classification changed by "a piece of paper to the draft board." In the presence of Gottlieb and Dan Molinoff, Coogan filled out a DD Form 44, obtaining the necessary information from Gottlieb's Selective Service card, and explained to the appellant that the form was just a means of changing his classification, that he was not actually in the National Guard, and that he would not have to report again. Indeed, the evidence at trial was undisputed that no personnel file was ever prepared for Gottlieb, that he never signed any papers, and that he was never given a drill schedule or a uniform. His service number was a complete fabrication.
The defense, however, contradicted Coogan's version of the June meeting. Gottlieb testified that Molinoff had contacted Coogan on his behalf to arrange to enlist. At the Huntington Station Armory, Coogan led them into an office where Gottlieb filled out an enlistment form and was given an orientation statement. The appellant admitted supplying Coogan with certain information but denied that a DD Form 44 had been prepared in his presence or that he knew such a form would be sent to his local board. Gottlieb also admitted that he had not been sworn in, had not been advised of his service number, and had not been informed which unit he was in, although he testified this information was later relayed to him by Coogan so that he could fill out the Current Information Questionnaire from his local board. He conceded having expressed some uncertainty to Molinoff later in the day as to whether he was actually in the National Guard. Nevertheless, at trial, he maintained that when he filled out the Current Information Questionnaire and returned it on July 1 he believed he was in the Guard.
In the years following Gottlieb's purported enlistment in the 242nd Signal Battalion, he never was given a physical, attended a meeting, or received a communication from the unit. Despite this, at no time prior to 1971 did he address any inquiry to the unit, his local board, or other appropriate authorities. Gottlieb did testify that on several occasions he had his brother-in-law check with Coogan for him. This was not on a regular basis, however, and neither Coogan nor the unit were advised of his several changes of address while he was attending graduate school in the Washington, D.C. area.
Only in early 1971, after he became aware that Coogan was under investigation by the F.B.I., did Gottlieb, at the urging of his attorney, write two letters requesting a clarification of his draft status, to which he apparently received no response. He did not follow up on these letters. On April 13, 1971, Coogan was indicted by a federal grand jury in the Eastern District of New York on eight counts involving the furnishing of fraudulent certificates to the Selective Service System. He pled guilty to four counts and was sentenced June 13, 1973.
Over strenuous objection, the government attempted to show on Coogan's direct examination that these illegal activities engaged in by Coogan on behalf of those seeking to avoid the draft must have been known to Gottlieb and supported the government's assertion that he knew his own enlistment was fraudulent. Specifically, testimony was adduced that in 1963, Dan Molinoff, who had introduced the appellant to Coogan, had also arranged to have a long time friend of his meet with Coogan, who was then stationed at Lido Beach, New York. As testified to by Coogan, this meeting progressed in much the same manner as did the encounter with Gottlieb five years later. Molinoff's friend, Robert Cohen, was seeking to enlist in the National Guard since his 2-S deferment was about to expire. In the presence of Cohen and Molinoff, Coogan ...