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Moskowitz v. United States

United States District Court, S.D. New York

December 9, 2014


For Miriam Moskowitz, Petitioner: Guy Eddon, LEAD ATTORNEY, Baker Botts L.L.P(NYC), New York, NY; Joseph Charles Perry, LEAD ATTORNEY, Baker Botts, L.L.P.(NYC), New York, NY; Robert Lawrence Maier, LEAD ATTORNEY, Baker Botts LLP (NY), New York, NY.

Abraham Brothman, Petitioner, Pro se.

For United States of America, Respondent: Robert Wood Allen, LEAD ATTORNEY, PRO HAC VICE, U.S. Attorney's Office, SDNY, New York, NY.

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ALVIN K. HELLERSTEIN, United States District Judge.

Miriam Moskowitz petitions for a writ of error coram nobis to overturn her 1950 jury conviction for conspiracy to obstruct justice. Moskowitz's prosecution arose from an investigation into Soviet nuclear espionage into the Manhattan Project and related activities by which the United

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States developed atomic bombs. The investigation was capped by the prosecution and execution of Julius and Ethel Rosenberg for spying. Moskowitz, then 34 years old and now 98, contends that her conviction should be overturned based on recently unsealed grand jury testimony which, had it been disclosed, could have changed the outcome of her trial. For the reasons discussed in this opinion, Moskowitz's petition is denied.


Miriam Moskowitz's conviction relates to a series of events that occurred during a 1947 FBI investigation into Soviet espionage activities. Harry Gold, a chemist, had been secretly couriering information about the Manhattan Project from Klaus Fuchs, a British theoretical physicist, to Soviet agents. On May 29, 1947, FBI agents interviewed Gold and his colleague Abraham Brothman, a chemical engineer, as part of their espionage investigation. That night, after the interviews, Gold and Brothman met and considered how to reconcile inconsistencies in their stories. Moskowitz, who worked as Brothman's secretary and was romantically involved with him as well, was present at these conversations, according to Gold. Allen Deel. Ex. 1, at 650-51 (Transcript of Gold Testimony) (" Transcript" ). Weeks later, Brothman and Gold were subpoenaed to testify before the investigating grand jury. According to Gold, Moskowitz helped persuade Brothman to stick to the original, untruthful story he gave the FBI during his grand jury testimony. Id. at 669-70 (" Miriam told me that she ... had succeeded in persuading Abe from his desire to ... change the original story which he had given the agents of the FBI..." ). Gold also described other conversations about lying to law enforcement during which Moskowitz was present or provided encouragement.

Harry Gold ultimately pled guilty to violating the Espionage Act of 1917 and was sentenced to 30 years imprisonment, of which he served 14. Brothman and Moskowitz were each charged with conspiracy to obstruct justice in violation of 18 U.S.C. § 241 (1946 ed.).[1] They were tried together and convicted by jury. Each was sentenced to two years imprisonment and fined $10,000 on the conspiracy counts. The following year, the Second Circuit rejected Moskowitz's appeal, including a challenge to the sufficiency of the evidence, finding that " [a]n examination of the record convinces us beyond a reasonable doubt that the contention is groundless." United States v. Brothman et al., 191 F.2d 70 (2d Cir. 1951). Moskowitz served her custodial sentence and paid her fine.

In a separate proceeding in 2008, I unsealed the minutes of the grand jury convened in the Brothman/Markowitz investigation, finding that they had substantial historical importance. In re National Security Archive, Case No. 08-cv-6599, 2008 WL 8985358 (S.D.N.Y. Aug. 26, 2008). Moskowitz now argues that three statements in particular also have relevance to her case. First, in a statement of July 11, 1950, Gold described the events of May 29, 1947. Gold, Brothman and Moskowitz had returned to the laboratory around 10:30 pm from their dinner at a Chinese restaurant. Gold reportedly told the FBI that, " [w]hen Moskowitz went out on an errand,

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possibly to obtain some coffee, I related to Brothman in detail the story that I had told Agents Shannon and O'Brien." Allen Deel. Ex. 2, at 8965-66 (July 25, 1950 Grand Jury Testimony of Special Assistant Attorney General Thomas J. Donegan) (" Donegan Testimony" ). Second, an FBI report by Special Agent Louis Leuders, which was read into the record, notes that " GOLD recalls telling BROTHMAN practically nothing in MOSKOWITZ' presence but later, after all had returned to the laboratory and MOSKOWITZ had gone out for coffee or something, they talked of their stories to the agents." Allen Deel. Ex. 6, at 9 (Feb. 3, 1954 report of Special Agent Louis M. Leuders) (" Leuders Report" ). Finally, a separate FBI report by Special Agent Thomas Zoeller, also read into the record, states that " [w]ith regard to MIRIAM MOSKOWITZ, GOLD stated that he never discussed his espionage activity in her presence when he could avoid it, as he distrusted her because of her violent temper. He felt that someday after one of the many arguments ...

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