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United States v. Fayer

decided: March 27, 1978.

UNITED STATES OF AMERICA, APPELLEE,
v.
ALFRED FAYER, APPELLANT



Appeal from a judgment following a jury trial in the United States District Court for the Eastern District of New York before Mishler, Ch. J., convicting appellant of four counts of perjury.

Oakes and Van Graafeiland, Circuit Judges, and Bartels,*fn* District Judge.

Author: Van Graafeiland

VAN GRAAFEILAND, Circuit Judge

This is an appeal from a judgment convicting appellant on four courts of perjury. It is the last chapter of the sad story of a lawyer whose zeal on behalf of his clients led him into areas of such doubtful propriety that he himself was charged with complicity in his clients' wrongdoing. Although he successfully defended himself against these accusations, the jury below found that he perjured himself in the process. Finding no reversible error, we affirm the judgment of conviction.

The clients' misdeeds are described in United States v. Bernstein, 533 F.2d 775 (2d Cir.) cert. denied, 429 U.S. 998, 50 L. Ed. 2d 608, 97 S. Ct. 523 (1976), and the lawyer's involvement is discussed in United States v. Fayer, 523 F.2d 661 (2d Cir. 1975). A brief recapitulation will suffice. The clients, Harry and Rose Bernstein and their wholly owned company, Eastern Service Corporation, were convicted of securing false F.H.A. appraisals for mortgages which they owned and serviced by bribing F.H.A. appraisers, one of whom was Edward Goodwin. Prior to indictment, the Bernsteins and appellant Fayer met with Goodwin and attempted to convince him that he should not give any information to the grand jury which was investigating the Bernsteins' activities. Unbeknown to them, Goodwin had already agreed to cooperate with the Government, and the entire conversation was tape-recorded by a device concealed on Goodwin's person.

A fair reading of the transcript of the recorded conversation establishes clearly that both the Bernsteins and Fayer repeatedly urged Goodwin not to talk before the grand jury. They also urged Goodwin to discharge his attorney, who had recommended that Goodwin cooperate with the Government, and replace him with another attorney who would be paid by the Bernsteins. Finally, the Bernsteins, with Fayer's apparent approval, offered Goodwin a job in their Florida office if his refusal to cooperate cost him his F.H.A. job.

Fayer was originally indicted for wrongfully endeavoring to influence a witness, 18 U.S.C. § 1503, and for aiding and abetting in the attempted bribery of the witness, 18 U.S.C. §§ 2 and 201(d). Following a non-jury trial before Judge Weinstein in the Eastern District of New York, Fayer was acquitted on both accounts. The basis for Judge Weinstein's holding on the first count was that, although Fayer was motivated in part by his desire to protect the Bernsteins, there was a substantial doubt as to whether he was not also attempting to advise Goodwin as a lawyer. With regard to the second count, Judge Weinstein found that, although Fayer "did aid and abet the Bernsteins" and that it was difficult to believe that Fayer did not know that the Bernsteins "were using him to aid and abet them in their scheme", a reasonable doubt nonetheless existed as to whether Fayer acted with the wilful intent to corrupt.*fn1 Appellant was subsequently indicted again, this time on four counts of perjury.

Appellant contends that his convictions on three of the four perjury counts must be reversed because he was immune from prosecution on these counts under the doctrine of collateral estoppel. His post-trial motion addressed to the fourth count specifically excluded collateral estoppel as a ground for dismissal.*fn2 Because this count stands separate and apart in this respect, it will be discussed first.

COUNT IV

The transcript of the recorded conversation shows that in attempting to convince Goodwin to discharge his attorney, the Bernsteins and Fayer made the following statements:

Fayer: I would say to your friend. And this is the right thing, he spent a little bit of his time. I'd give him a check. I don't know how much time he spent. A hundred, two hundred dollars. Whatever it is. Give him a check. Tell him you'll think it over and so forth, and just sit tight. If you're called at that point . . .

Rose

Bernstein: But tell him not to do any ...


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