# Petition — Rubin v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 810

## Text

"Supreme Court y
; » U.S,
FILED

IN THE DEC 2 1977 —

Supreme Court of the United ites 296 ecg

October Term, 1977
NO. pes-smp----- ,
T7=792

BERNARD G. RUBIN,

~——

Petitioner,
vs.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari to the United States
Court ef Appeals for the Fifth Circuit.

RICHARD L. ROSENFIELD,

1888 Century Park East, Suite 815,
Los Angeles, Calif. 90067,
(213) 277-2411,

Attorney for Petitioner.

FLAX AND ROSENFIELD,
Of Counsel.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page
I ka actarceesipliceiianlsiecanslibilibianandtiins 1
ELEN Se NORE Re nT a a ERT 1
I a nalaciialaine 2
RE EE RRR east te Oe ae Le 2
i aes 17

The Court of Appeals Erred in Concluding That
the Prosecutor’s Misuse of the Prior Invocation
of the Fifth Amendment Before the Grand Jury
by Important Defense Witnesses Was Not Error
of Constitutional Dimension ............................ 17

A. The Court Below Correctly Concluded
That the Cross-Examination and Com-
ment Upon the Prior Exercise of the Fifth
Amendment Was Error .......................-..-- 17

B. The Court Applied an Erroneous Stand-
ard by Concluding That the Error Was
Merely Evidentiary and Did Not Rise to
Constitutional Proportion -..............0........ 24

The Court Erred in Denying Standing to
Petitioner Who Is Asserting His Own
Constitutional Right as Well as Those
of His Witnesses ........... ndaddienmibaeiiniteasiias 29

The Petitioner Has Standing to Raise the
Witness’s Constitutional Rights in This
a sauheelonlakdaiaseliteteitieaiasitlasiblamnatigmsananiaicies 34

The Court of Appeals Misapprehended
the Prejudice Suffered by Petitioner .... 38

ii.

II Page

The Decision Below Squarely Conflicts With the
Decisions of the United States Court of Appeals
for the Ninth Circuit With Respect to Failure
to Record Grand Jury Proceedings Despite
Timely Preindictment Request ....................----

I SSeS pen eS a a

INDEX TO APPENDICES

Appendix A. Opinion of the United States, Court
of Appeals, Fifth Circuit .................... App. p.

Appendix B. Petition for Rehearing Denied With
Suggestion for Rehearing En Banc ....................

Appendix C. Stay of Issuance of Mandate Pending
Petition for Writ of Certiorari Is Denied ............

Appendix D. Letter to Honorable C. Clyde Atkins,
Judge, United States District Court, Dated De-
Ne a sciaecicciciineiincnnsennasiennancctinieicietiniiianainien

Appendix E. Letter to Honorable C. Clyde Atkins,
Judge, United States District Court, Dated Feb-
St SP ~ waecrisatdsciantastaisinsiasbestimanesnimnseiatnicichdins

41

46

45

46

48

ill.

TABLE OF AUTHORITIES CITED

Cases Page
Alderman v. United States, 394 U.S. 165 (1969) .... 37
Ashe v. Swenson, 397 U.S. 436 (1970) ...00022.0220..... 39
Barrows v. Jackson, 346 U.S. 249 (1953) ........... 35
Bivens v. Six Unknown Federal Agents, 403 U.S.
ai ela acai a ala 37
Bowman v. United States, 350 F.2d 913 (9th Cir.
nn Epa nt Enmore cn Ronee Dor RM ee 38
Boyd v. United States, 116 U.S. 630 —..00000000.. 33
Branzburg v. Hayes, 408 U.S. 665 (1972) ............ 31
Bray v. Paton, 429 F.2d 500 (4th Cir. 1970) ....28, 29
Burgett v. Texas, 389 U.S. 109 (1967) ............ 25
California v. Green, 399 U.S. 149 (1970) ........ 25

Cary v. Westinghouse Electric Corporation, 178
N.Y. 2d 846, aff'd, 190 N.Y. 2d 1103 (1958) .. 34

Chambers v. Mississippi, 410 U.S. 284 (1973) .... 27

Chapman v. California, 386 U.S. 18 (1967) ....
REDE ME Ao TNE OS TE A APTA eT eT Pee 2, 16, 24

Couch v. United States, 409 U.S. 322 (1973) .. 19

Doyle v. Ohio, 426 U.S. 610 (1976) ....15, 22, 23
haeailaeiiteie dees adeieibaileiiaeabedassiaiianiaimapiaiaasdiiaals 25, 30, 31, 33

Dutton v. Evans, 400 U.S. 74 (1970) —20000000.... 25
Gardner v. Broderick, 392 U.S. 273 (1968) ..19, 32

Garner v. United States, 424 U.S. 648, 96 S.Ct.
UI on BN a 19, 20

Garrity v. State of New Jersey, 385 U.S. 493
RPUEETEy sasestiednceiinsidlaibiriniasasclebadanidaiiicieainbaddinaiidiiaienie 32

iv.
Page
Griffin v. State of California, 380 U.S. 609 (1965)
sescriainaiglaiaiaticiiataasislestinaians teatasadecsataesaainne nnn 31
Griswold v. Connecticut, 381 U.S. 479 (1965) ...... 33

Grunewald v. United States, 353 U.S. 391 (1975)
se\cuibaiptinaditdleinasdcasid aaa i5, 21, 22, 30, 31

Hale v. Henkel, 201 U.S. 43 (1906) ................-... 19

Hoffman v. United States, 341 U.S. 479, 71 S.Ct.
CA6 CIBBR) nccwenunescteeeeee 20

Imbler v. Pachtman, 424 U.S. 409 (1976) ............ 36

Investigation Before April 1975 Grand Jury, In re,
403 F.Supp. 1176 (D.C. Cir. 1975), vacated 500
F.26 GO (DE. Cit, BRO) cmc 20

Jones v. United States, 362 U.S. 257 (1960) ........ 37
Kastigar v. United States, 406 U.S. 441 (1972) .. 18

Kotteakos v. United States, 328 U.S. 750 (1946)
ccsantininpisinhdiniiaiae 2, 16, 24, 38

Lefkowitz v. Turley, 414 U.S. 70 (1973) .~........... 32
Malloy v. Hogan, 378 U.S. 1 (1964) —....0000000002.... 31
Marchetti v. United States, 390 U.S. 39 (1968) .. 19
McCarthy v. Arndstein, 266 U.S. 34 (1924) _...... 32
Miranda v. Arizona, 384 U.S. 436 (1966) ..23, 25, 33
Murphy v. Waterfront Commission, 378 U.S. 52

CFS) ccccessnessnienepiecniteisetilbamesiidiinsltamsanialaaanaiaaneaa 33
Oliver, In re, 333 U.S. 257 (1948) ..........cccceccccccevees 27
Schlinksy v. United States, 379 F.2d 735 (ist Cir.

BOE) ncovcensacecisendnnstionannmnncuiiemanaiaaaaan 4!

Singleton v. Wolf, 428 U.S. 106 (1976) ..35, 36, 37

——__ — er -

v.
Page
Slochower v. Board of Higher Education, 350 U.S.
EEE 19, 32
Spevack v. Klein, 385 U.S. 511 (1967) ois 31, 32, 33
Uniform Sanitation Men v. New York, 392 USS.
RE EI 32
United States v. Aloisio, 440 F.2d 705 (7th Cir.
I ati hetticcueiines EERE SE Ae On ee Oe 44
United States v. Basurto, 497 F.2d 781 (9th Cir
EE SE SSE a 45
United States v. Battisti, 486 F.2d 961 (6th Cir
a cinsnnieemnnneiniell 44
United States v. Chanen, 549 F.2d 1306 (9th Cir
ES LSS i 45
United States v. Cianchetti, 315 F.2d 584 (2d Cir
SEE Se 44
United States v. Cramer, 447 F.2d 210 (2d Cir
IRE AEE 44
United States v. DeMarco, 401 F.Supp. 505 (C.D.
SENN sutinsssipsnsssernsacnsunensenscurenecsermcerensessrcenees 45
United States v. Fairchild, 505 F.2d 1378 (Sth Cir.
EEE 21
United States v. Gallo, 394 F.Supp. 310 (D.Conn
EEE SE ESOT 45
United States v. Glasser, 443 F.2d 994 (2d Cir.
EN 15, 16, 25, 26
United States v. Gramolini, 301 F.Supp. 31 (D.C.
EE 44
United States v. Grunewald, 233 F.2d 556, rev. 353
TE 33

vi.
Page
United States v. Hale, 422 U.S. 171 (1975) ..15, 22
United States v. John, 408 F.2d 1134 (8th Cir.

STD cccinisitatncistinsaaviniiansilanntiininmnnate 44
United States v. King, 478 F.2d 494 (9th Cir
I: cl ecaasheamenrnsemnemenaianniientien 43
United States v. Messitte, 324 F.Supp. 334 (S.D.
BE, TD. scniscotccsccssdicarnticiniciintepatimennininnmntiinens: 45
United States v. Morrison, 535 F.2d 223 (3rd Cir.
| RIN ramen tcc a emer ab breve reine nna roanie erro 28
United States v. Natale, 526 F.2d 1160 (2d Cir.
GESTED -ccishamsosninsteesbiadeuiiiilansicidaaaielbinsdiiiad iideiatalidiaanaaéiiit 15, 16

United States v. Nixon, 418 U.S. 683 (1974) ...... 27
United States v. Peden, 472 F.2d 483 (2d Cir.

DETTE scinsicescissccsnuiinasieeieiaatistaicesnienialidabiacieiduiiniddaniaimeasiiadh 44, 45
United States v. Price, 474 F.2d 1223 (1973) ....
salibihceshabdaenielateadshapaiiaiapieiiaapaiiaaniatea AEA SE
United States v. Smith, 478 F.2d 976 (D.C. Cir.
TE cissccicasisieisnssuslansucttsliasieasdditiabassaacdameaaseimamaielaiaitie 29
United States v. Thomas, 488 F.2d 334 (6th Cir
TUTTI. sxccerbindveninsscccteisnsediitiajagiliiadaidiada lnmiatibeelaa mains 28

United States v. Thoresen, 428 F.2d 654 (1970) .... 42
United States v. Tomaiolo, 249 F.2d 683 (2d Cir.

TUTTE: ssncnncecsinn~ «ttniiniiianaiainatansibiinasinaslatstgniadnegsiiaian 15, 16
United States v. Williams, 464 F.2d 927 (8th Cir.

PIP TTIET : ssccoceonsnaisenasisdtinnsintaesinbadisampisiieabinaiimieididcabnailal 15, 16
Washington v. Texas, 388 U.S. 14 (1967) ........ 27, 28
Webb v. Texas, 409 U.S. 95 (1972) .......0000000222.... 27
Wood v. Georgia, 370 U.S. 374 (1962) ~............... 45

> «ees

Vii.
Miscellaneous Page

American Bar Association Project on Standards for
Criminal Justice, Standards Relating to the Prose-

Gutiom Famctiom, Gee. BSE). ......-
ee ee ee Se eee

= =

[17] Having found no prejudicial error in the pro-
ceedings that culminated in appellant’s conviction, we
affirm that judgment. Appellant has, however, raised
a substantial objection to one aspect of his sentence,
to which we now turn.”

III. Forfeiture of Union Offices
[18-20] Upon appellant’s conviction of the racketeer-
ing charges, the district court issued an order pursuant
to 18 U.S.C. § 1963(a) that Rubin forfeit his offices
in the various unions and employee welfare benefit

the other hand, one court has found the statute satisfied
by two or more offenses committed in the course
of employment with the relevant enterprises, so long
as the offenses are themselves related. See United States
v. Stofsky, 409 F.Supp. 609 (S.D.N.Y.1973), aff'd.
527 F.2d 237 (2d Cir. 1975).

We find it unnecessary to attempt definitive resolution
of this issue. Assuming some required relationship be-
tween the proscribed acts and the maintenance of union
position, we find the trial court’s instructions suf-
ficient to convey that meaning. At least we cannot
find reversible error in the failure to add the proffered
words “by means of”. Appellant’s definition might have
emphasized the nexus, but would have added little
content to the definition of so common a word as
“through.” The evidence was certainly sufficient to
support a conclusion that appellant’s embezzled funds
served his position in the union organizations.

plans. Additional’y. the court ordered forfeiture in per-
petuity of the right to hold any such office. Appellant
challenges these orders as beyond the intended reach
of the forfeiture sanction.

Part of tiie Organized Crime Control Act of 1970,
(hereinafter the “Act”), 18 U.S.C. § 1963(a) provides:
Whoever violates any provision of section 1962

.. . Shall forfeit to the United States ... (2) any
interest in, security of, claim against, or property or
contractual right of any kind affording a source of
influence over, any enterprise which he has es-
tablished, operated, controlled, conducted, or par-

14Appellant raised four other claims of error. We reject
as meritless the claim relating to discovery of an Internal
Revenue Service file and that relating to the presence before
the grand jury of Department of Justice Organized Crime and
Racketeering Strike Force attorneys. Two claims, one asserting
that the trial court improperly excluded certain defense evidence
as hearsay and one challenging the court’s instructions on the
fiduciary duties of a union official under 29 U.S.C. § 501(a),
were raised pertinent to the embezzlement counts that ch
unlawful salary increases. We need not reach these claims be-
cause of the operation of the concurrent sentence doctrine.

—_— =

ticipated in the conduct of, in violation of section
1962.

The question before us is whether appellant’s various
offices are “interests”, “securities”, “claims”, or “proper-
ty or contractual right of any kind”, within the meaning
of § 1963(a). Given Congress’ clear intent to use
every possible means to separate those found guilty
of racketeering activity and their confederates from
the enterprises they had conducted through such activity,
we find no basis in language or policy for excluding
those offices appellant presently holds from the reach
of the forfeiture provision. The terms of that provision,
however, cannot reach appellant’s right to seek and
reattain such offices. That right, moreover, is independ-
ently regulated by provisions of the federal labor stat-
utes. Accordingly, we modify the forfeiture order en-
tered below, restricting its application to appellant’s
incumbent status in the enumerated offices.

As a criminal statute, § 1963 “must be strictly
construed, and any ambiguity must be resolved in favor
of lenity.” United States v. Enmons, 410 U.S. 396,
411, 93 S.Ct. 1007, 1015, 35 L.Ed.2d 379 (1973).
This canon has particular application to forfeiture stat-
utes. See Baca v. Commissioner, 326 F.2d 189 (5th
Cir. 1964). Indeed, the forfeiture of a portion of
an individual’s property as a consequence of a criminal
conviction was unknown to the federal criminal law
until the passage of § 1963." Such a penal foray
bespeaks a need for circumspection.

Unlike in rem forfeiture proceedings against contraband
or articles put to unlawful use, § 1963 operates against the
person of the defendant and includes within the punishment
for his crime forfeiture of a portion of his estate. Such a
provision, while known to the common law of England and

cad

= =

That circumspection nevertheless must give fair heed
to the clear congressional intent to increase the variety
and strength of federal prosecutorial weapons designed
to root out and keep out the influence of organized
crime in legitimate business and labor organizations.
Congress found the traditional criminal sanctions of
imprisonment and fine wanting in the effort against
infiltration by organized crime. Incarcerating individuals
could remove them from the operation of victimized
organizations. So long as those individuals retained
or could transfer economic leverage over the organi-
zations, however, removing them to prison often resulted
only in the rule by proxy or in the promotion of
junior members of organized crime. As the Senate
Judiciary Committee stated, “What is needed here... .
are new approaches that will deal not only with
individuals, but also with the economic base through
which those individuals constitute such a serious threat.”
S.Rep. at 78 (1969); see also Measures Relating to
Organized Crime: Hearings on S.30 and Related Pro-

the colonies, is foreign to the federal criminal law. The 91st
Congress recognized that, in passing § 1963, it was partially
repealing a statute passed by the First Congress, which in
its present form provides that: “No conviction or judgment
shall work corruption of blood or forfeiture of estate.” 18
U.S.C. § 3563. See United States v. Mandel, 408 F.Supp.
679 (D.Md. 1976); S.Rep. 91-617, 91st Cong., Ist Sess 79-80
(1969), hereinafter S.Rep.); 116 Cong.Rec. 35205, 35208
(remarks of Rep. Mirka, Rep. Ryan).

Besides the unprecedented nature of the forfeiture sanction,
the uncertain reach of “patterns of racketeering activity”—the
gravamen of a § 1962 offense—requires interpretive caution
in this area. See Part II. A., supra. While addressed to organized
crime, the Act is not limited in application to members of
that undertaking. See United States v. Campanale, supra. Indeed,
while we readily conclude appellant was properly convicted
under the racketeering provisions we intend to intimate no
finding or sense of any kind that he is or has been affiliated
with what might be labeled organized crin:-.

—_— =

posals Before the Subcommittee on Criminal Laws and
Procedures of the Senate Judiciary Committee, 91st
Cong., Ist Sess. 112 (1969) (statement of Attorney
General) (hereinafter “Senate Hearings”); Organized
Crime Control: Hearings on S.30 and Related Propos-
als Before Subcommittee No. 5 of the House Judiciary
Committee, 91st Cong.2d Sess. 107 (Statement of Sen.
McClellan) (hereinafter “House Hearings”); 116 Cong.
Rec. 35193 (1970) (remarks of Rep. Sisk).

The criminal forfeiture provision is one attempt to
destroy that economic base. Thus Congress clearly con-
templated forfeiture of any ownership or investment
type of interest a defendant might hold in an organi-
zation he had conducted through a pattern of racketeer-
ing activity. It is just such an interest that would
not otherwise terminate with incarceration and would
enable a defendant and/or his confederates to maintain
control of an organization.

The question is whether that language of § 1963(a)
— interest, security, claim, property or contract right—
should be extended beyond such financial interests to
elective or appointive management positions such as
those held by appellant. The scope of the statute is
indeed without precise boundaries." Appellant’s man-

“Judge Fay below explicitly noted the ambiguity in the
statute:

I would want the record to show that this is apparently
a gray area. It’s difficult to say that the statute is
or specific, because when it talks in terms of forfeit
something to the Government, you would ordinarily thin

of money or property, or something of that sort. (R.
821-22).

—_ =

agement positions do not present the same problem
regarding perpetuation of control that ownership in-
terests create.

Nonetheless we conclude that appellant’s entitle-
ment under the organic documents of the various en-
tities to serve the remainder of his terms of office
falls within the language of the statute. So far as
the record demonstrates, his rights under the charter
and constitutions of the various organizations to serve
out his terms of office are as contractual in nature
as an employee's rights under an employment agreement
for a term of years, terminable for cause. The terms
of the forfeiture provision reach beyond any narrow
definition of capital investment, embracing “property
or contractual right of any kind.” The Senate Judiciary
Committee wrote that the language “is designed to
accomplish a forfeiture of any interest of any type
in the enterprise... .” S.Rep. at 79. While such
open-ended intent cannot legitimate extension of the
sanction beyond the statute’s plain terms, limited to
their reasonably foreseeable scope, neither can it be
disregarded.

[21] Construing § 1963 to encompass the positions
appellant holds also accords with congressional intent.
First, retention of a management position, even in
absentia, could permit a defendant convicted under
the racketeering provisions to continue to exert an
influence over an enterprise. Moreover, althouga Con-
gress’ primary concern in enacting the forfeiture pro-

sndiffiion

vision was eradicating organized crime’s economic base,
which more readily translates into ownership interests,
it also intended forfeiture fully to serve the broader
goal of legally separating persons who run an enterprise
through the defined racketeering activity from the enter-
prise itself. See S.Rep. at 79."" Although applying
§ 1963 to appellant's offices may serve only this broader
goal and be unrelated to eliminating self-perpetuating
economic power, there remains no reason to conclude
that those offices lie outside the sanction’s reach.

[22] In short, a reasonably cautious interpretation
of the language of the forfeiture provision brings within
its reach the right under an organization’s charter to
serve out a specified term in an elective or appointive
management position of substantial influence. Such an
interpretation serves the policies identified by Congress
in enacting the statute. Because both those conditions
are satisfied, the order that appellant forfeit his present
positions in the various union entities is proper.”

The forfeiture sanction, however, can have no proper
effect on appellant’s right in the future to seek union
office, including those offices he must now give up.
That right to run for and hold office is not something
appellant as an individual has acquired or maintained
with respect to the various union entities; it is the

Senator McClellan, a sponsor of the provision, explained
to the House subcommittee that the forefeiture sanction would
“punish the criminal appropriately by forfeiting to the govern-
ment his ill-acquired interests . . . and directly aid the business
community by expelling him from the legitimate business he
abused.” House Hearings at 107.

That those offices cannot be —e gi! transferred to
the United States is of no moment. 18 U.S.C. § 1963(c)

vides that a forfeited interest not exercisable by the United
beaten shall terminate.

— a

same right possessed by all members of all unions.
In no sense a contractual or property right held by
the individual against a union, the right to seek union
office is rather guaranteed by federal statute. See 29
U.S.C. 481(e). The language of the new penal statute
does not extend to such a right.

Moreover, the forfeiture provision itself contains no
prophylactic ban on reacquisition of the same interest
as that forfeited. Nothing in § 1963 prevents an in-
dividual from investing funds in an enterprise in which
he has had to forfeit a previous investment. Such
an interpretation does not rob the sanction of its de-
terrent effect, which results from the heavy financial
loss that can be visited by a forfeiture order. See
Senate Hearings at 388 (statement of Assistant At-
torney General Will Wilson). Even in the context of
a management position, forfeiture without restriction
on reentry removes from the convicted defendant the
advantages of incumbency.

Finally, restricting the operation of the sanction to
presently-held interests is supported by the fact that
Congress specifically attended to the problem of reac-
quisition in the civil remedies of § 1964. Included
among those remedies are injunctions against a de-
fendant conducting in the future the same type of
enterprise he conducted through racketeering activity
in the past. That powerful measure was rightfully ad-
dressed to the district court’s equitable discretion and
not made a part of the forfeiture sanction that attaches
automatically upon conviction under § 1962.

The analysis thus far would apply to a distinction
between any presently-held interest and the right to
regain that interest. Limiting forfeiture to the former,

—

makes particular sense in the context before us, more-
over, because labor code provisions independently regu-
late appellant’s right to seek union office in the future.

Assuming appellant’s embezzlement convictions be-
come final, it will be unlawful for him to serve as
an officer of a labor organization or a trustee of
an employee welfare benefit plan. 29 U.S.C. §§ 504,
1111. That ban continues for five years following the
conclusion of imprisonment, subject to the discretion
of the Board of Parole to lift the restraint. Nowhere
in the legislative history of the Organized Crime Con-
trol Act of 1970 does there appear a reference to
this restraint on the right to seek union office, which
attaches upon conviction of many of the offenses in-
cluded in the 1970 Act’s definition of racketeering
activity.

We do not read the criminal forfeiture provision
as imposing a permanent ban on reacquisition of any
covered interest. The statute creates no rule of per-
petuity. It has a limited temporal reach with which
we have no right, no power, to tamper. In any case
we cannot find in § 1963 any authority to impose
the radical measure of a lifetime ban on holding union
office when that statute was passed completely without
regard to the five year ban in existence at the time
of enactment. Insofar as the district court ordered
appellant to forfeit his right to seek and hold office
in the labor organizations and employee welfare benefit
plans, that order must be reversed. Appellant’s rights
in that regard are committed to the operation of 29
U.S.C. $§ 504, 1111.

CONCLUSION

The judgment of conviction is AFFIRMED. The

order of forfeiture is AFFIRMED AS MODIFIED.

—_— =
APPENDIX B.
United States Court of Appeals
Fifth Circuit
Office of the Clerk
Edward W. Wadsworth, Clerk
Tel. 504-589-6514

600 Camp Street
New Orleans, La. 70130

November 2, 1977

TO ALL PARTIES LISTED BELOW:
NO. 76-1143—U.S.A. v. BERNARD G. RUBIN

Dear Counsel:

This is to advise that an order has this day been
entered denying the petition ( ) for rehearing,** and
no member of the panel nor Judge in regular active
service on the Court having requested that the Court
be polled on rehearing en banc (Rule 35, Federal
Rules of Appellate Procedure; Local Fifth Circuit Rule
12) the petition ( ) for rehearing en banc has also
been denied.

See Rule 41, Federal Rules of Appellate Procedure
for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk
By /s/ Brenda M. Hauck
Deputy Clerk

**on behalf of appellant, Bernard G. Rubin,

ce: Mr. Richard L. Rosenfield
Mr. Ivan Michael Schaeffer

—

APPENDIX C.

In the United States Court of Appeals, for the Fifth
Circuit.

United States of America, Plaintiff-Appellee, versus
Bernard G. Rubin, Defendant-Appellant. No. 76-1143.

Appeal from the United States District Court
for the Southern District of Florida

Filed: Nov. 16, 1977.

ORDER:

eon: 3 £| fener for stay of the
issuance of the mandate pending petition for writ of
certiorari is DENIED. See Fifth Circuit Local Rule
15, as amended January 11, 1972.

(\/) The motion of APPELLANT for stay of the
issuance of the mandate pending petition for writ of
certiorari is GRANTED to and including December
2, 1977, the stay to continue in force until the final
disposition of the case by the Supreme Court, provided
that within the period above mentioned there shall
be filed with the Clerk of this Court the certificate
of the Clerk of the Supreme Court that the certiorari
petition has been filed. The Clerk shall issue the man-
date upon the filing of a copy of an order of the Su-
preme Court denying the writ, or upon the expiration of
the stay granted herein, unless the above mentioned
certificate shall be filed with the Clerk of this Court
within that time.

=— =

( ) The motion for a further stay of the issuance
of the mandate is GRANTED to and including
under the same conditions as set forth in the preced-
ing paragraph.

( ) IT IS ORDERED that the motion for a further
stay of the issuance of the mandate is DENIED.

/s/ Irving L. Goldberg
UNITED STATES CIRCUIT JUDGE

— =

APPENDIX D.
Miami, Florida
December 23, 1974
Honorable C. Clyde Atkins
Judge, United States District Court

P.O. Box 013009
Miami, Florida 33101

Dear Judge Atkins:

Although the matter of the Grand Jury Duces Tecum
Subpoena for Florida Administrators, Inc. is now moot
pursuant to this Court’s recent ruling, I am taking
this opportunity to write to you and correct the impres-
sions created by the affidavit of John H. Schulte (see
attachment A) in reference to the conduct of the
Government in this matter. Since I did not receive
the affidavit until the morning of the hearing, I have
not had an opportunity to respond. Although the matter,
as I’ve said is moot, I do not feel that the Court
should be left with only a limited view of the facts
as stated in the Schulte affidavit.

Sometime in November of 1974, Compliance Officer
William Gamble interviewed Mr. Grossman, President
of Florida Administrators, Inc., and Abe Jordan also
of Florida Administrators, Inc., relative to various labor
union trust funds administered by Florida Administra-
tors, Inc. This interview was in reference to records
which would identify any unauthorized disbursements
from said funds to one Bernard Rubin, a union official
of various Laborers Unions in south Florida. At this
time Mr. Gamble was told that Florida Administrators,
Inc. would be happy to aid the Government and for
Mr. Gamble to merely write a letter for the material

—_— we

and Florida Administrators, Inc. would give the Govern-
inent anything it requested. Later pursuant to a tele-
phone call between Mr. Grossman and Mr. Gamble,
it was decided to subpoena the records before the
Grand Jury. Mr. Gamble was told by Mr. Grossman
to make the subpoena out to Abe Jordan for said
records. No one objected to the amount or type of
records requested up to this point.

As a result of these preliminary conversations a
subpoena was made out to Abe Jordan calling for
the records that had been discussed. (See attachment
B) Two agents served Mr. Jordan with the subpoena.
Mr. Jordan was very cordial and cooperative at this
time. He stated in reference to the subpoena, that
that was the correct way to obtain the records from
Florida Administrators, Inc. and that he was the correct
person to serve. He did not object in anyway to the
scope of the subpoena or to his being named in the
subpoena. His only comment at the time was that
before he complied he would have to await the outcome
of a meeting between Mr. Grossman and Mr. Seymour
Gopman an attorney for various Laborer’s Unions.

Approximately one week before the subpoena was
returnable Mr. Jordan called the undersigned. Mr. Jor-
dan asked whether he was to turn the records over
to the labor agents or to come before the Grand
Jury. I told him that he must appear before the Grand
Jury with the records. He stated at that time that
he was technically not the custodian of the records.
I then asked him who was and who could comply
with the subpoena. Mr. Jordan quickly reassured me
that even though he was not technically the custodian
of the records, that he was the proper person to sub-

= Ss

poena and that he would gladly comply with the sub-
poena. He was very cordial and did not indicate in
anyway that the subpoena would call for any great
deal of work. In fact his tone and conversation indicated
to me that he either presently had the records in
question or that they were easily obtainable and avail-
able.

On the day the subpoena was returnable, I received
a call from John Schulte. He stated that he represented
Florida Administrators, Inc. He further stated that Flor-
ida Administrators, Inc. had no objection to complying
with the subpoena but that a “client” of Florida Ad-
ministrators, Inc. informed Florida Administrators that
if they complied willingly with the subpoena Florida
Administrators would be sued and would possibly lose
business. He further stated that this put Florida Admin-
istrators, Inc. in an unenviable position and that his
concern was protecting Florida Administrators, Inc.
As a result, he stated, he would have to file a Motion
to Quash the subpoena of Abe Jordan since Mr. Jordan
was not technically the custodian of records of Florida
Administrators, Inc.

I was very surprised at this call because Florida
Administrators, Inc. had been very cooperative from
the first moment the Government approached them.
As a matter of fact they were the only entity having
anything to do with the Laborer’s Unions and Bernard
Rubin that was cooperative. I told Mr. Schulte that
it was pretty sad when the subject of a Grand Jury
investigation could interfere with witnesses bringing
records to the Grand Jury. I also told him that, in
my opinion the fact that a client of Florida Administra-
tors, Inc. might sue them or take away business, was

—)

not a sufficient reason for not complying with the
subpoena.

Mr. Schulte agreed with me, but stated that his
only interest was in protecting Florida Administrators,
Inc. He stated that he would file a Motion to Quash.
He asked me to excuse Mr. Jordan until it was argued.
I stated that I could not excuse him, but instead
of wasting his time waiting at the Grand Jury until
we went before a Judge, just to make himself available.
I then asked if the records subpoenaed were available
should a Judge rule in the Government’s favor. Mr.
Schulte stated that they were. I informed Mr. Schulte
that I was surprised that he would allege as the grounds
for his Motion to Quash that Mr. Jordan was not
the custodian of Florida Administrators, Inc. I told
him that Mr. Grossman and Mr. Jordan themselves
had directed federal agents to make out the subpoena
to Mr. Jordan.

As a result a hearing was held before this Court
wherein the Court ordered both parties to get together
to attempt to find a proper custodian and to narrow
the subject matter of the subpoena so that Florida
Administrators, Inc. could determine exactly what rec-
ords the Government wanied (this, by the way, was
the first time anyone speaking on behalf of Florida
Administrators, Inc., had stated that they could not
comply because the subpoena was not specific enough).

I could not confer with Mr. Schulte on December
10, 1974, as this Court well knows, because of my
obligations to the Grand Jury. As a result I told
Agent Gamble to call Mr. Schulte to find out who
he wanted the Government to make out the subpoena
to. I specifically told Mr. Gamble not to discuss the

ines

legality of the subpoena in any respect, but merely
to determine who was the proper custodian of records.
Mr. Schulte refused to name a proper custodian.

During the course of the conversation Mr. Schulte
again alluded to the “client” who did not want Florida
Administrators to comply with the subpoena. Mr.
Schulte stated that “they” informed Florida Administra-
tors, Inc. that Florida Administrators, Inc. should con-
test the subpoena or that there might be a civil liability
on the part of Florida Administrators, Inc. Mr. Gamble
responded that that sounded like obstruction of justice
—not on the part of Florida Administrators, Inc.—
but on the part of that person who told Florida Admin-
istrators, Inc. not to comply when they were apparently
willing to do so. Mr. Gamble asked Mr. Schulte how
“they” even knew Florida Administrators, .ac. had
been served with a subpoena. To this there was no
response. Although no specific names were mentioned
Mr. Gamble informed me that it was clear from the
conversation that “they” referred to Mr. Bernard Rubin
and his attorneys (since the subpoena requests informa-
tion about disbursements to Mr. Rubin, this is only
logical). Several agents who were in the room with
Mr. Gamble when the call was made have informed
me that Mr. Gamble was extremely polite and did
not “get upset” or “make any accusations about Mr.
Schulte or Florida Administrators, Inc.”

On December 11, 1974, I called Mr. Schulte about
the form of the subpoena. He stated that he would
like us to name each trust fund by its proper name
and number. I told him that we would do so in
the case of those we knew of by reviewing records
and testimony we had already received. I did, however,

tee tty tiie testi. Miecenk aN ati ica ne Raa ts ia hace senso tiles th Pain —
& BRD inane ars eR Ne tein. til, db he te Cliente, steht Melee a tadiletiiy

=.=

inform Mr. Schulte that other than witnesses saying
that it was so, we had no way of knowing exactly
what fund Florida Administrators, Inc. administered
for the Laborer’s Unions. After discussing the matter
further for sometime, Mr. Schulte and myself tentatively
agreed on items A-G and 1-7 in the subpoena (see
attachment C)..Mr. Schulte then informed me that
he could not agree to item II which called for a
list of trust funds administered by Florida Adminis-
trators, Inc. I again informed Mr. Schulte that we
had no way of knowing whether there were trust funds
of various Laborer’s Local Unions other than those
previously mentioned in items A-G and 1-7. I stated
that it was important to the Government to determine
whether Mr. Rubin had taken any trust funds of a
Union and that if there were other Laborer’s trust
funds other than A-G and 1-7, that the only way
we could find that out would be to see a list of
those funds administered by Florida Administrators,
Inc. and pick those out that had anything to do with
any Laborer’s Union. Mr. Schulte refused to supply
me with such a list. I then requested the name of
a proper custodian. Mr. Schulte asked me how long
I had been making out subpoenas and to look it up
somewhere or make it out to “officers and custodians”.
I told Mr. Schulte that I wanted to serve a specific
person and would he please name one. He said that
if the time ever came for serving a subpoena someone
would respond. He still refused to name any person.

At this time Mr. Schulte again informed me that
the “client” of Florida Administrators, Inc., did not
want them to comply with the subpoena although Flor-
ida Administrators, Inc., had no particular objection.

—

I again informed him that this was not a proper
reason to file a Motion to Quash and that this seemed
like interference with the Grand Jury.

I again informed Mr. Schulte that although we could
(and did) specify the labor unions by name and number
where we could, we had no possible way of knowing
which trust funds they administered for any Laborer’s
unions (except witnesses who have informed the Gov-
ernment that Florida Administrators, Inc. administered
most of the trust funds for all of the Laborer’s unions).
I again asked for a list so that we could examine
the list and subpoena just those funds involving La-
borer’s unions. Mr. Schulte refused to give us a list
and stated that if we kept Item IT on the subpoena
he would file a Motion to Quash. I asked him if
this included items A-G and 1-7 that we already had
tentatively agreed on. He stated that it would include
everything we asked for.

Subsequently, Mr. Schulte filed his Second Motion
to Quash on the second subpoena which contained
an affidavit about certain Government conduct.

Aithough the matter is now moot I thought it impor-
tant that the Court be informed of exactly what action
the Government took and why they did so. In my
opinion the Government acted properly in the face
of obvious outside interference. A member of the bar
should be more responsible when he files an affidavit
that could affect the career of a Government agent.
In my opinion the Government agents in this particular
investigation have acted entirely properly and circum-
spectly in the face of serious efforts by the subject
of the investigation to frustrate that investigation, not
only with respect to Florida Administrators, Inc.,

wr ee ee —

onion
but in many other aspects that this Court is aware

of.
Respectfully,
/s/ Marty Steinberg
MARTY STEINBERG,
Special Attorney
U. S. Department of Justice
cc: John Schulte, Esq.

1301 DuPont Building
Miami, Florida 33131

APPENDIX E.

Flax and Rosenfield
Attorneys at Law
1880 Century Park East
Suite 1600
Century City
Los Angeles, California 90067
Telephones (213) 277-2411, (213) 879-3841
February 10, 1975
Honorable C. Clyde Atkins
Judge, United States District Court
P.O. Box 013009
Miami, Florida 33101
Dear Judge Atkins:
My law partner Larry Flax and I are retained attorneys
for Bernard Rubin, a prominent labor official who
is currently the subject of an investigation being con-
ducted by the United States Department of Justice
Organized Crime and Racketeering Strike Force in
your district.
In early January, during my presence in Florida for
the purpose of representing Mr. Rubin at his appear-

= =

ance before the Federal Grand Jury on January 7,
1975, I was astonished and shocked to learn that
Mr. Marty Steinberg, Special Attorney for the Strike
Force had addressed an ex parte letter to your Honor
which accused Bernard Rubin and his attorneys of
obstruction of justice in the pending investigation. I
have acquired a copy of this letter; my concern occupies
several discrete levels.

Both my partner and I are young lawyers. Yet, we
are not unfamiliar with Federal criminal practice. Larry
Flax served as Assistant United States Attorney and
Assistant Chief of the Criminal Division in the United
States Attorney’s Office for the Central District of
California from 1968 to 1972. From 1969 to 1973
I served with the Appellate Section of the Criminal
Division in Washington D.C., then later with the Special
Prosecution Section, Criminal Division of the United
States Attorney's Office in Los Angeles.

In his letter to your Honor, Mr. Steinberg states on

page four:
“During the course of the conversation Mr. Schulte
again alluded to the “client” who did not want
Florida Administrators to comply with the sub-
poena. Mr. Schulte stated that “they” informed
Florida Administrators, Inc. that Florida Adminis-
trators, Inc. should contest the subpoena or that
there might be a civil liability on the part of
Florida Administrators, Inc. Mr. Gamble respond-
ed that that sounded like obstruction of justice—
not on the part of Florida Administrators, Inc.
—but on the part of that person who told Florida
Administrators, Inc. not to comply when they
were apparently willing to do so. Mr. Gamble

= =

asked Mr. Schulte how “they” even knew Florida
Administrators, Inc. had been served with a sub-
poena. To this there was no response. Although
no specific names were mentioned Mr. Gamble
informed me that it was clear from the conversa-
tion that “they” referred to Mr. Bernard Rubin
and his attorneys (since the subpoena requests
information about disbursements to Mr. Rubin,
this is only logical).
Later Mr. Steinberg concludes: .

“In my opinion the Government agents in this
particular investigation have acted entirely proper-
ly and circumspectly in the face of serious efforts
by the subject of the investigation to frustrate
that investigation not only with respect to Florida
Administrators, Inc., but in many other aspects
that this Court is aware of.”

— =

My first inquiry is how a Federal Prosecutor could
deem it ethically proper to address a letter to a Federal
Judge which accuses the subject of a criminal investi-
gation and his attorneys of obstruction of justice, then
not serve a copy of that inflammatory statement upon
the subject or his attorney. Had it not been for the
fact that there is communication between some of
the subpoenaed parties in this matter, this letter may
never have come to my attention.

If the Florida Administrator’s matter was moot at the
time this letter was written, as Mr. Steinberg indeed
suggests it was, why the necessity for this unverified
version of the facts at all? If the purpose of the
letter was to vindicate the reputation of William Gamble
of the Labor Department, then I suggest that perhaps
Mr. Gamble ought be a bit more “thick skinned.”

But, Mr. Rubin need not be “thick-skinned.” As the
target of a serious criminal investigation he had a
full right, indeed a full right based on our Constitution
—to believe that a prosecutor will not engage in miscon-
duct—whether that misconduct occurs before a Grand
Jury, at trial, or in an ex parte letter addressed to
a District Judge. That expectation has not been ful-
filled here.

As put in the oft-quoted statement in Berger v. United
States, 295 U.S. 88 (1935)

“The United States Attorney is the representative
not of an ordinary party to a controversy but

aulitines

of a sovereignty whose obligation to govern im-
partially is as compelling as an obligation to govern
at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but
that justice shall be done. As such, he is in
a peculiar and very definite sense the servant
of the law, the twofold aim of which is that
guilt shall not escape or innocence suffer. He
may prosecute with earnestness and vigor—indeed,
he should do so. But, while he may strike hard
blows, he is not at liberty to strike foul ones.
It is as much his duty to refrain from improper
methods calculated to produce a wrongful convic-
tion as it is to use every legitimate means to
bring about a just one.”
Not only is it outrageous that this letter was sent
at all, but it is absolutely untrue. The facts are as
follows: shortly after Florida Administrators, Inc. re-
ceived their subpoena, Mr. Abe Jordan of that organiza-
tion telephoned me at my office in Los Angeles. I
had never spoken to him or any member of Florida
Administrators, Inc. previously. He advised me that
he had been served with a subpoena for records con-
cerning Trust Funds associated with Mr. Rubin which
were administered by Florida Administrators. He in-
quired as to what he should do about the subpoena.
I advised him that there was nothing that could be
done about a Federal Grand Jury Subpoena; that he
should comply with the subpoena. The entire conversa-
tion including amenities about the weather in Miami
probably did not last in excess of one minute. There-
after, | did not even know that Florida Administrators,

— =

Inc. ever filed a motion to quash until I arrived in
Miami for Mr. Rubin’s Grand Jury appearance on
January 6, 1975. I had never spoken to Mr. Schulte,
their attorney, until I arrived outside the Grand Jury
room. At that time I introduced myself; our entire
conversation concerned Mr. Steinberg’s letter to your
Honor.

Subsequent to my receiving a copy of the letter, I
spoke telephonically with Mr. Steinberg and Mr. Levota
of the Strike Force. Mr. Steinberg informed me that
the reference in his letter to Bernard Rubin’s “attorneys”
was not a reference to Mr. Flax and myself, but
to another attorney.

I explained that at the time the letter was written
Mr. Flax and I were the only attorneys retained to
represent Mr. Rubin in this investigation.

Also, I am very troubled by the statement in the
letter that there have been “. . . serious efforts by
the subject of the investigation to frustrate that investi-
gation, not only with respect to Florida Administrators,
Inc., but also in many other aspects that this Court
is aware of.”

As Mr. Rubin's attorney this allegation truly alarms
me. I personally have no knowledge of any improper
efforts by Mr. Rubin to frustrate the investigation.
To what conduct does Mr. Steinberg refer? Has Mr.
Steinberg or any representative of the government had
any other ex parte communications with the Court?
If there have been communications to this Court con-
cerning any conduct of Mr. Rubin, I respectfully request
the Court to so advise us. We have not been served
by the government with any communication or docu-
ment in any way whatsoever.

- ——

em =

- es

+ ae)

—

From Mr. Rubin’s standpoint, the most troubling aspect
is that an allegation of obstruction of justice once
made cannot be retracted. It is an allegation easily
made; but it is one that under the circumstances is
utterly irresponsible.

The governments allegations of impropriety in the in-
stant case raise even a more profound concern; it
is a concern that transcends this case and goes to
the core of the administration of Federal criminal jus-
tice.

From the first day we undertook representation of
Mr. Rubin we have been warned by every attorney
with whom we have spoken in Miami (and there
have been many) that it is a common tactic of the
Miami Strike Force to attempt to intimidate attorneys
by alleging they are obstructing justice.

I suspect that the reason that the Strike Force is
so carefree about alleging obstruction stems from an
unwillingness to recognize the proper role of a defense
attorney in the pre-indictment stages of a prosecution.
Mr. Steinberg says in his letter that he inquired of
Mr. Schulte how “they” even knew Florida Administra-
tors, Inc. had been served with a subpoena. His obvious
implication is that there is a sinister connotation to
be derived if Florida Administrators, Inc. told Mr.
Rubin or his attorneys that they had received a sub-
poena for records concerning Mr. Rubin. Ir a similar
vein, I had a discussion recently with Mr. Hernan
Gonzales, an Internal Revenue Special Agent, assigned
to the Strike Force. I had telephoned him concerning
an IRS summons issued to Mr. Howard Learner, who
previously served as an accountant to Mr. Rubin. Mr.
Gonzales inquired how I even knew that Mr. Learner

— =

had received a summons. I informed him that Mr.
Learner told me.

Then, when I was present in Florida last week, to
answer a subpoena for records, I was present at the
grand jury room while Mr. Learner testified before
the grand jury. When the grand jury adjourned for
lunch, in the near presence of Mr. Steinberg, I asked
Mr. Learner whether he wished to join Mr. Flax and
I for lunch. Mr. Steinberg turned and remarked in
an obvious outraged tone, “You mean you're going
to interview him right now?”. I explained to Mr.
Steinberg that I most assuredly was going to interview
Mr. Learner.

Apparently, the Strike Force is unwilling to acknowl-
edge that I have the same right to speak to witnesses
as they do. If those witnesses wish to speak with
me prior to or after their Grand Jury appearances,
they may properly do so. Moreover, the fact that
a witness must testify truthfully and candidly before
the Grand Jury, does not necessarily mean he must
be overjoyed about so doing. It is neither improper
nor unusual for a Grand Jury witness to communicate
with the subject or his attorney.

From my discussions with others I have learned that
there has been extensive questioning of Grand Jury
witnesses concerning any discussions that such witnesses
may have had with various attorneys concerned with
this investigation, including myself. I understand that
Mr. Schulte has now been subpoenaed as a Grand
Jury witness.

et ne

—= =

This type of attorney-harassment by the Strike Force
cannot help but intimidate counsel who are attempting
to represent a potential defendant. 1 cannot help but
question whether I am now sufficiently strong to repre-
sent my client to the fullest extent to which he is
lawfully entitled. I believe that even the most fearless
attorney would be intimidated by the aspersions and
allegations being leveled. Such invidious attacks which
subvertly erode the Sixth Amendment right to counsel
should be a matter of extreme concern to everyone
involved in our criminal justice system. Moreover, I
am gravely concerned about the effect that this highly
inflammatory inquiry will have on a lay Grand Jury
who assuredly is not instructed as to the proper latitude
given to a subject and his attorney at the pre-indict-
ment stages. The very fact that the prosecutor con-
tinues to inquire of Grand Jury witnesses about con-
tacts with the defendant and/or his attorneys neces-
sarily creates the inference that such contact is im-
proper. As a consequence, the Grand Jury can easily
be improperly inflamed against Mr. Rubin. The preju-
dice inherent in such conduct is properly the subject
of this Court’s supervisory power over the Federal
Grand Jury. Mr. Steinberg says, “[a] member of the
bar should be more responsible when he files an affi-
davit that could affect the career of a government
agent.” I believe that a member of the bar should
be more responsible when he files an ex parte unveri-
fied document with a District Judge that sub rosa
could seriously affect the subject of an investigation

as well as the reputation of other members of the
bar.
My reason for writing this letter is not to obtain
a censure of Mr. Steinberg. I am far more concerned
with the rights of Mr. Rubin and to a fair Grand

Jury, and to effective counsel. Accordingly, I would
respectfully request this Court to cause further inquiry ' Service of the within and receipt of a copy
thereof is hereby admitted this .................... day

into this serious matter. f

of December, A.D. 1977.
Respectfully,
/s/ Richard L. Rosenfield
RICHARD L. ROSENFIELD
For The Law Firm
RLR/mdlf

: |
f
|

cc: The Hon. Charles B. Fulton,
Chief Judge, U.S. District Court
Dougald McMillan, Chief,
Organized Crime and Racketeering
Strike Force—Miami

Marty Steinberg, Special Attorney
Organized Crime and Racketeering
Strike Force—Miami

bec: Seymour Gopman, Esq.
William Meadows, Esq.
Peter Aiken, Esq.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0846%3A1. Public record. Not legal advice.