Petition — Silverman v. United States

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ba eupreme Court, U. S.

80-334 isis

‘ AUG2 81980

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER JERM, 1980

No. 8Q-

MILTON SILVERMAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ROBERT MARKEWICH

Attorney for Petitioner

MARKEWICH, ROSENHAUS, MARKEWICH 6&

FRIEDMAN, P.C.

350 FIFTH AVENUE

New YORK, NEw YORK 10118

(212) 563-3500

DANIEL MARKEWICH

GARY BROWN

Of Counsel

seh

Whether a petition for a writ of

error coram nobis states a legal basis for

relief, sufficient to require an evidentiary

hearing, where it alleges: (ij) that a key wit-

ness at petitioner's trial had given false

testimony at a prior pre-trial hearing in the

same case on a matter material to that hearing

and relevant and material to the prosecutim

and defense of the trial; and (ii) that the

Government prosecutor intentionally withheld

from the defense his knowledge and belief that

the key witness had so perjured himself.

Page

Question Presented I

Opinions Below 1

Jurisdiction 2

Rules Involved 2

Statement of the Case 3

The Instant Coram Nobis Proceeding 4

The District Court's Decision fs)

Page

The Decision of the Court of Appeals 10

Reasons for Granting the Writ 10

I — Whether A Prosecutor's Failure

To Disclose A Key Witness’

Perjury At A Pre-Trial Hearing

In The Same Case Is A Basis For

Reversal Is A Question of Great

General Importance On Which

This Court Has Not Explicitly

Ruled And Which The Court

Below Decided In A Manner

Contrary To Its Own Recent

Decisions. 10

II -The Denial Of Silverman's

Petition Without An Evidentiary

Hearing Was Grossly Improper

And Should Be Corrected By A

Directive From This Court

That Petitions Which State

A Basis For Relief Be Accorded,

At The Least, An Evidentiary

Hearing. 25

Conclusion 29

III

Appendices

A - Judgment of the Court of Appeals la

B = Opinion of the District Court

Expurgated Memorandum of

Robert E. Scher, Esq.

C = Notice of Motion

D - Affidavits in Support of Moti

Affidavit of Robert E. Scher,

Esq.

Affidavit of Daniel Markewich,

Esq.

Affidavit of David I. Shivitz,

Esq.

Affidavit of Kalman V. Gallop,

Esq.

Affidavit of Max G. Sanchez

Affidavit. of Milton Silverman

Letter of Judge Palmieri

1976 Affidavit of Andrew

Maloney, Esq.

Prcferred Supplemental Affida-

vit of Robert E. Scher, Esq.

Extracts From Federal Rules

of Evidence Involved

Page

TABLE OF AUTHORITIES.

Cases:

Brady v. Maryland, 373 U.S. 83

(1963)

Dalli v. United States, 491

F.2d 758 (2d Cir. 1974)

DeVincent v. United States,

602 F.2d 1006 (lst Cir. 1979)

Friedman v. United States,

588 F.2d 1010 (5th Cir. 1979)

Giglio v. United States, 405

U.S. 150 (1972)

Giles v. Maryland, 386 U.S. 66

(1967)

Machibroda v. United States,

368 U.S. 487 (1962)

Mesarosh v. United States,

352 U.S. 1 (1956)

Mooney v. Holohan, 294 U. S.

103 (1935)

Napue v. Illinois, 360 U.S.

264 (1959 )

Price v. Johnson, 334 U.S.

266 (1948)

Page

ll, 23

25, 27

7, 13,

14, 15,

16, 24

ll, 24

25, 26

17, 18,

19, 24

7, 13,

14, 15,

16, 17,

Page

Raines v. United States, 423

F.2d 526 (4th Cir. 1970) 29

Sanders v. United States, 373 -

U.S. 1 (1963) 27

Silverman v. United States,

denied, 434 U.S. 956 (1977) 4, 12

Taylor v. Lombard, 606 F.2d 371

(2d Cir. 1979) 7, ih,

16, 24

United States v. Agurs,

427 U.S. 97 (1976) 12, 18,

19, 24

United States v. Catalano,

281 F.2d 184 (2d Cir. 1960) 28

United States v. DeSapio,

456 F.2d 644 (2d Cir.),

cert. denied, 406 U.S. 933

oe: >

19, 24

United States v. Franzese,

525 F.2d 27 (2d Cir. 1975),

cert. denied, 424 U.S. 921 (1976) 26

United States v. Keogh, 391

F.2d 138 (2d Cir. 1968) 7, ad

United St’ tes v. Morgan, 346

U.S. 502 (1954) 4

United States v. Pacelli, 491

F.2d 1108 (2d Cir.),

cert. denied, 419 U.S. 826

(1577) 22, 24

United States v. Provenzano,

615 F.2d 37 (2d Cir. 1980)

United States v.

215 F.2d 531 (2d Cir.

United States v.

516 F.2d 269 (2d Cir. 1975),

Provoo,

Rosner,

‘cert. denied, 427 U.S. 91l

United States v. Silverman,

430 F.2d 106 and 439 F.2d

1198 (2d Cir. 1970),

cert... denied, 402 U.S. 953

TIS7I)

United States v. Silverman,

469 F.2d 1404 (2d Cir.

cert. denied, 411 U.S. 982

)

United States v.

249 F.2d 683 (2d

United States v.

297 F.2d 598 (2d

Rules:

Federal Rules of

Rule 404(a) (3)

Rule 608 (b)

Tomaiolo,

Cir. 1957)

Tribote,

Cir. 1961)

Evidence

1954)

1972),

Page

23, 24

15, 16,

20, 21,

22, 24

16, 24

Statutes:

18 United

Section

28 United

Section

29 United

Section

States Code

664

States Code

1254 (1)

1651

States Code

431(c)

436

439 (b)

439 (c)

501(c)

Page

WwW ww

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

80—

Petitioner,

Respondent.

On Writ Of Certiorari To The

United States Court of Appeals

For The Second Circuit

PETITION: FOR CERTIORARI |

MILTON SILVERMAN respectfully petitions

for a writ of certiorari to review the judg-

ment af the United States Court of Appeals

for the Second Circuit in this case.

‘OPINICNS: BELOW

The United States District Court for

the Southern District of New York (Edmund L.

Palmieri, J.) rejected petitioner's claims

without an evidentiary hearing in an unreported

seven—page memorandum-order entered on March

20, 1980. (App. B, pp. 1-27b.) The United

States Court of Appeals for the Second Circuit

affirmed the district court's order on the

opinion below on June 30, 1980. (App. A, pp. l-

3a.)

JURISDICTION .

On June 30, 1980, the court of appeals

entered an order affirming the order of the

district court on the opinion below. This

Court has jurisdiction to review the judgment

of the court of appeals on writ of certiorari

pursuant to 28 U.S.C. §1254(1).

RULES INVOLVED |

Set forth as Appendix H, pp. 1-2h, are

the pertinent provisions of FED. R. EVIDENCE

404 (a) (3) and 608(b).

Indicted in the Southern District of

New York in 1968 (68 Cr. 762) on eighteen

counts charging embezzlement of union funds

and falsification of union books and records,

in violation of Title 18, United States Code,

Section 664, and Title 29, United States Code,

Sections 43l(c), 436, 439(b) and (c) and 501

(c), petitioner was convicted before Judge

Palmieri and a jury in 1969. That conviction

was in part upheld by the court of appeals at

430 F.2d 106 and 439 F.2d 1198 (2d Cir. 1970),

cert. denied, 402 U.S. 953 (1971). Also upheld

at that time was Judge Palmieri's denial in a

written opinion dated April 30, 1968 (68 Cr.

762) of petitioner's motion far a new trial.

Judge Palmieri denied further motions

and petitions brought by petitioner, with

Opinions dated June 22, 1971 (68 Cr. 762),

March 21, 1972 (71 Civ. 4997), and May 5, 1976

(75 Civ. 4989). These determinations were

affirmed by the court of appeals at 469 F.2d

(1973), and 556 F.2d 655 (2d Cir.), cert. de-

nied, 434 U.S. 956 (1977).

No hearing was ever held on any of the

above-mentioned post-judgment claims.

The Instant Coram’ Nobis ‘Proceeding.

The factual allegations in support of

the instant petition — brought pursuant to 28

U.S.C. §1651 and United States. v. Morgan, 346

U.S. 502 (1954) (App. C, pp. 1l=-2c.) —

are set forth in the affidavits of Robert E.

Scher, Esq., Daniel Markewich, Esq., David I.

Shivitz, Esq., Kalman V. Gallop, Esq., Max G.

Sanchez and petitioner; an expurgated memoran-

dum of Robert Scher, Esq., dated February 4,

1969; and a proferred supplemental affidavit

of Robert E. Scher, Esq., which the district

court did not consider.* (App. D, pp. 1-5ld;

eS 62. 4

This supplemental affidavit was included in

the Second Circuit record on appeal by stipula-

tion with the Government.

App. B, pp. 25-27b; App. G, pp. 1-4g.)

In sum, the foregoing papers demonstrate

that Jacob Friedland, the Government's only

rebuttal wii ess at petitioner's 1969 trial,

was a key witness, probably the key witness,

against petitioner. His testimony logically

and legally bore on all counts of the indict-

ment and was thus highly material. At a prior

hearing in the same case, Friedland gave false

testimony under oath on a matter material to

that hearing; that perjury was highly relevant

to an evaluation of this key witness’ credibil-

ity at the trial. Neither petitioner ror his

attorneys knew that Friedland had given false

testimony; therefore, the defense was deprived

of its right to cross-examine Friedland about

his prior perjury in the same case. But the

prosecutor did know of the falsity of Fried-

land's pre-trial testimony; far, a month before

trial, the prosecutor informed Friedland's

then attorney, Robert E. Scher, Esq., who had

entered the case subsequent to Friedland's pre-

trial testimony, that the prosecutor knew and

believed that Friedland had committed perjury

at the prior hearing and might be indicted for

that perjury, but that the prosecutor could

"control" such indictment.

Naturally, Friedland's attorney did not

reveal this information to petitioner or his

lawyers either before or at trial or during

the years thereafter. Friedland's counsel

only in 1979, upon the inquiry of petitioner's

new attorney about another subject, reviewed

his 1969 file and, having refreshed his recol-

lection fram a contemporaneously made memoran-

dum, spontaneously and for the first time made

it known that, ‘ decade ago, a month before

petitimer's trial, the prosecutor revealed to

him Friedland's perjury, the threat of indict-

ment therefor, and the willingness to control

such indictment. Although Friedland's attor-

ney had the duty not to speak in 1969, the

prosecutor had the opposite duty: to come for-

ward with this vital information concerning

the credibility of the key Government witness.

Its "high value to the defense could not have

escaped the prosecutor's attention." United |

States v. Keogh, 391 F.2d 138 (2d Cir. 1968).

This prior perjury was not collateral,

as it had occurred in the course of the same

case and in connection with the same general

subject matter on which Friedland's trial

testimony was material. However, not only did

the prosecutor "sit idly by" in violation of

Giglio v. United States, 405 U.S. 150 (1972);

Napue.v. Illinois, 360 U.S. 264 (1959); and

Taylor v. Lombard, 606 F.2d 371 (2d Cir. 1979),

and not reveal the information to defense

counsel or the court; here, instead, the pro-

secutor actually took steps which had the in-

cent, and the effect, of insuring that the

prior perjury would not come out.

In the first place, the prosecutor at

trial advised defense counsel and the court

that the key witness had previously been told

he was a taroet of an indictment for obstruc-

tion of justice, but at that time the prosecu-

tor said nothing about, and gave no hint of,

the threatened indictment for perjury or the

perjury itself. Secondly, in seeking im

munity for Friedland, the prosecutor did not

even reveal to his superiors in the Justice

Department that this key witness had previously

committed perjury in the same proceeding; per-

haps this amission was caused by the prosecu-

tor's expressed zeal for conviction,* and by

his fear that the Attorney General would not

authorize the granting of immunity to one who

had already lied under oath in the very case.

Thirdly, the prosecutor simply took the exped-

¥fhe majority of the court of appeals panel,

United States. v. Silverman,''s , 430 F.2d at

T28, criticized the prosecutor for “over-kill"

at petitioner's trial.

ient way out, by so confining his examination

of Friedland at trial as to insure that

Friedland would not repeat his prior perjury

and thereby force the prosecutor, even under

his own standards, to reveal it after all. He

also apparently saw to it that Friedland re-

ceived transactional immunity even for the un-

revealed prior perjury.

The District Court's: Decision .

The district court denied Silverman's

petition without a hearing, primarily on the

ground that the Scher memorandum “records no

more than an opinion by the prosecutor,

Maloney, that Friedland had lied at a pre-trial

hearing" and that there was therefore no 'ton-

stitutional lapse" in the Government's case,

(App. B, pp. 1-27b.) Additionally, the dis-

trict court strongly suggested that Silverman's

prior motions rendered the current one subject

to the “realm of collateral estoppel or res

judicata," notwithstanding that Silverman had

never before alleged that Friedland had lied at

the pre-trial hearing or that the Government had

known this.

The Decisicn cf the Court of Appeals. .

The court of appeals affirmed on the op-

inion of the district court. (App. A, pp. 1-3a.)

REASONS FOR GRANTING: THE: WRIT’ :

WHETHER A PROSECUTOR'S FAILURE

TO DISCLOSE A KEY WITNESS’ PERJURY

AT A PRE-TRIAL HEARING IN THE SAME

CASE IS A BASIS FOR REVERSAL IS A

QUESTION OF GREAT GENERAL IMPORTANCE

ON WHICH THIS COURT HAS NOT EXPLICITLY

RULED AND WHICH THE COURT BELOW DECIDED

Le Te

DECISIONS. _ DEON Ma CERES 3 ev

In denying Silverman's petition without

even so much as a hearing, the court below

apparently believed that the petition did not

state a basis for relief. Indeed, the court

of appeals described the petition as "totally

without merit." Yet, there are statements in

at least four recent Second Circuit opinions

demonstrating that reversal is mandated on the

facts of this case,and this Court has suggested

in several cases decided after Brady v.

Maryland, 373 U.S. 83 (1963), that reversal is

mandated in these circumstances, Thus, defini-

tive guidance from this Court is in order since

the Supreme Court has never explicitly ruled

on the important issue of the effect of a prose-

cutor's intentional failure to reveal his know

ledge or belief that a key witness had lied on

a relevant and material issue at a pre-trial

hearing in the same case.

In Brady. v. Maryland, supra, this Court

held, generally, that a conviction must be re-

versed where the prosecutor has suppressed

material evidence. In Giles v. Maryland, 386

U.S. 66 (1967), a plurality of this Court held

that where "(t]he credibility of the witnesses

was...important to the outcome of the case,"

the suppression by the prosecution of eviderce

of which "the defense might have made effective

use...at the trial" in order "to impeach a

witness' credibility" was error of constitu-

tional dimension.

Later, in United States v. Agurs, 427

U.S. 97 (1976), this Court noted that

"A conviction obtained by the knowing

use of perjured testimony is funda-

mentally unfair, and must be set aside

if there is any reasonable: likelihood |

Fha e fTaise ac ®) [= @) id. ave: -

al ted: the judgment of. the: |

el. scoring Supp PC) «

The Second Circuit made the same observation

in Silverman v. United States, supra, 556 F.2d

at 659. This Court further held that in such

cases “a strict standard of materiality” should

be applied because such cases "involve a corrup-

tion of the truth-seeking function of the trial

process." Apparently, this rule applies where

there is "reason to question the veracity of any

of the prosecution witnesses" and where the

evidence that was not revealed "did...arguably

give rise to any inference of perjury." In such

a case, and particularly where, as here, the

prosecutor actually knew and believed that the

key witness had committed perjury, there is no

requirement that defense counsel have requested

the materials or directed the prosecutor's

attention to them; it is enough that the pro-

secutor knew or should have known and yet did

not come forward. Here, the "high value" of

this evidence to the defense “could not have

escaped the prosecutor's attention." United .

States. v. Keogh, supra.

‘Napue v. Illinois, supra, and Giglio v.

United States, supra, both require a new trial

where the prosecutor has intentionally withheld

evidence or put forth false evidence that could

in any reasonable likelihood have affected the

judgment of the jury, and where such evidence

was important and ought to have been known to

the prosecutor to be important. In Giglio,

this Court cited Napue for the proposition that:

"When the ‘reliability of a given

witness may well be determinative

of guilt or innocence’ non-disclosure

of evidence affecting credibility falls

within this general rule."

There can be no doubt that in the instant case

Friedland was such a witness.

As recently as October 1, 1979, the

Second Circuit held in Taylor v. Lombard, supra .

at 375:

"The requirement applies even where the

perjury relates to a witness’ credi-

bility rather than bearing directly

on the defendant's guilt: —

""nA lie is a lie, no matter

what its subject, and, if it: is

in any way relevant to the case,

the district attorney has the

responsibility and duty to

correct what he knows to be

false and elicit the truth...'

Napue v. Illinois, supra at 269-70."

Undoubtedly, this Court, unlike the court below,

Will apply the same standards to federal as to

state prosecutors. A new trial is required, as

in the instant case, where “there was any rea-

sonable likelihood" that the failure to reveal]

the perjury "affected ‘he fairness of the de-

fendant's trial."

Napue, Giglio. and ‘Taylor: differ from the

instant case in that there the prosecutor had

failed to correct a witness’ false statement

at trial, whereas here the perjury was cam

mitted at a prior stage of the same proceeding

and not repeated at trial. Yet the instant

case resembles Napue and Giglio in that the

prosecution failed to advise the defendant

and the court that the witness had been threa-

tened with a perjury indictment if he did not

cooperate and told it could be controlled if

he did. Moreover, the hearing and trial testi-

money of this key witness was highly material,

and revelation of his prior perjury in the same

case was highly relevant to a determination of

Friedland's credibility and thus to the final

outcame of the trial. Even before Fed. R.

Evidence 404(a) (3) and 608(b), the Second

Circuit under its then more restrictive prac-

tice permitted an attack on the credibility of

a key witness by showing his "propensity to

disregard the cbligation of an oath." ‘United »

States v. Provoo, 215 F.2d 531, 537 (2d Cir.

1954); United States v. Tamaiolo, 249 F.2d

683, 689 (2d Cir. 1957). No perjury conviction

Was required as a predicate for cross-examina-

tion.

There are statements in at least four

post-1969 Second Circuit opinions demonstrating

that the rule of Napue, Giglio and ‘Taylor should

apply to the instant case and mandate a new

trial. In United States v. DeSapio, 456 F.2d

644 (2d Cir.), cert. denied, 406 U.S. 933

(1972), the court refused to grant a new trial

notwithstanding that Itkin had committed perjury

on many prior occasions and that the Government

had withheld this information from DeSapio’s

attorney. In footnote 2 at page 648, the court

held that in DeSapio the defendant could not

rely upon Napue because in Napue the Government

"either knew or suspected that one of its prin-

cipal witnesses had committed perjury in the |

case on trial." The italics are the court's.

The court continued to note in the footnote

that, to the contrary in the DeSapio case, Itkin

was there lying to protect his cover; thus, his

prior perjury “established no basis from which

it may be inferred that Itkin perjured himself

in this case." The Court added that there was

no evidence that Itkin had perjured himself at

any time after 1968, when DeSapio was indicted.

To the contrary in the instant prosecuticn,

Friedland's perjury took place "in the case on

trial" and after indictment of petitioner. Thus

the DeSapio case supports the proposition that,

where the prosecutor "suspects" perjury by a key

witness, his wilful failure to disclose that per-

jury committed in the very "case on trial" (i.e.,

"in this case," not necessarily during the trial

itself) will require a reversal.

The court's entire footnote 2 in DeSapio

follows:

"Appellant cannot reasonably

rely upon 'N v. Illinois.

[supra] Vv. United States,:

352 U. S. 1...(1956). In those cases the

government either knew: or Skeets

that one of its princi witnesses

had committed: ‘in: the: case ‘on:

trial.’ ;

second emphasis as in original.)

Since Napue was indisputably a "knowledge" case,

the court must have been referring to Mesarosh |

in measuring what standard of "suspicion" re-

quires revelation or a new trial. In Mesarosh,:

supra at 4, although it remained the Government's

position that the witness’ trial testimony “was

entirely truthful and credible," the Government

was required to reveal its “suspicion” where

there was "serious reason to doubt the truthful-

ness" of that testimony. And see United States .

v. Agurs, supra at 104 and 114:

"Since this case involves no misconduct,

and since there is no reason: to. ee '

the. veracity of any o e prosecu

Witnesses, the test of materiality

followed in the Mooney line of cases

Y app

is not necessari icable to this

CaS@eecee

"(T]he arrest record...did not even

Seas

eeee es id

The petitioner's affidavits, and Scher's

memorandum below,in the instant case certainly

satisfy the "knowledge" requirements of ‘Agurs,.

_ Mesarosh and DeSapio. First, Scher swears in

1979, and wrote in 1969,* that Maloney told him

*¥fhe Scher memorandum, as expurgated by the

court, contains the following statements:

“Maloney [the prosecutor] has a theory

that Judge Murphy's order will be no bar

to the testimony of Friedlan[d], because

muons lied during the hearing on. the |

, ‘ —_-

will: have 1 hort ‘ ————— informar. Be’ '

He wants to ace a possibie per= -an=: :

* cme! or the = @) S pdianid!.

"As a hypothetical question, I asked

Maloney what would happen if Friedlan([d]

did cooperate and recant it before Jurige

Palmieri. What would prevent...Palmieri

fran insisting that a prosecution take

place, or insist that the Bar Association

be notified that Friedlan[d] committed

a fraud on Judge Murphy and should be

punished. Murphy [Maloney] admitted that

there is no answer to this question and

that while he. See in=: .

dictment, he y no

With Judge Palmieri's decisions."

(Emphases added.)

that Friedland lied during the 1968 hearing;

that is not a mere "Suspicion" at all. Maloney

also told Scher that Friedland had exposed him-

self to a perjury charge by denying the existence

of a report to Local 1614. Maloney suggested

to Scher that Maloney had or shortly would have

the Local 1614 report. The seriousness and

depth of Maloney's actual knowledge and belief

that Friedland had actually conmitted perjury are

demonstrated by his offer to “trade" and "control"

a possible perjury indictment in exchange for

Friedland's testimony. After all, "knowledge"

and "belief," being states of mind, are often

best demonstrated by what a person does in

support thereof, such as threatening or offering

to control an indictment.

269 (2d Cir. 1975), cert. denied, 426 U.S. 911

(1976), the Court refused to grant a new trial

where, at the trial, a Government witness had

lied in describing the extent of his own prior

criminal activites that were collateral to the

prosecutor's case and the defense thereof and

the Government was charged with knowledge of the

witness’ perjury as to those collateral matters.

What is noteworthy is the court's. observation

that:

“Leuci's admitted perjury related to his

own misconduct, independent of the cir-

cumstances of this case, and not to any

element of the substantive offenses

with which Rosner was charged."

Thus, the Rosner opinion supports the proposi-

tion that when, as here, the Government knows

that a witness is committing or has conmitted

perjury in the course of a criminal proceeding

that bears directly upo the circumstances of

the case or any element of the substantive

offenses, the Government must reveal that perjury

upon pain of reversal. The affidavits below

demonstrate that both Friedland's testimony at

the pre-trial hearing (and the falsity thereof)

and his testimony at the trial bore generally

on the circumstances of the case and on the same

subject matter, and were relevant and material

to elements of both the embezzlement and the

false record-keeping counts of the indictment

as well as to Friedland's credibility -— in

short, upon all counts. Thus, Rosner. here

mancated a reversal.

The Second Circuit in United States v.

Pacelli, 491 F.2d 1108 (2d Cir.), ‘cert. denied,.

419 U. S. 826 (1974), actually reversed a con-

viction under circumstances virtually identical

to the instant case. In that case, the court

first held that it was proper for the defense

to cross-examine a Government witness about his

perjury (for which he had not been indicted

or convicted) committed in a prior trial of the

same action. More importantly, the Court re-

versed the conviction because of the Government's

failure to disclose a letter in which the wit-

ness had falsely stated that his prior perjury

had been unintentional. There is no material

difference between Pacelli and the instant Case.

United States v. Provenzano,, 615 F.2d 37

(2d Cir. 1980) is clearly favorable to the peti-

tioner's claim. The legal distinction between

the facts in the instant case and those in

Provenzano is exactly that set forth in footnote

24 thereof:

"The instant case [Provenzano in the

Southern District] Is readily distin-

guishable from the later racketeering

trial of Provenzano in the District of

New Jersey. In the New Jersey trial,

Provenzano did use same of the un-

disclosed impeachment material to cross-

examine Picardo. But Picardo was a

central witness in that case. His tes-

timony was not limited [to voice identi-

fication] as it was here."

Moreover, there was no cross~examination of

Picardo at all in the Southern District Trial.

The court in Provenzano. made it "clear

that our decision on the Brady issue here turns

on the unique facts of this case.

We recognize that courts should not

lightly infer that undisclosed Br, '

material would not have been us

the defense."

In the instant case, petitioner's trial attorney

has sworn that he would have sought to impeach

Friedland's credibility with the information

that the prosecutor withheld, and that in his

belief the impeachment might have affected the

outcome of the trial. Thus, Provenzano supports

petitioner's right to a new trial.

Since it would appear that, pursuant to

the rule of DeSapio, supra; Pacelli, supra; and

Rosner, supra; when applied to Agurs, suprar.

Mesarosh, supra; Giglio, ‘supra; ‘Taylor, supras.

Giles, supra; Provoo, ‘supra; Tonaiolo; supras.

and Provenzano, Supra, petitioner is entitled to

a new trial if the allegations in his petition are

true and had a reasonable likelihood of affecting

the outcome of the trial, and since the decision

below departed so dramatically from the rule of

these cases by denying petitimer's claims even

without an evidentiary hearing, plenary review

by this Court is appropriate. A definitive rule

should be enunciated as to whether a prosecutor's

failure to disclose a witness’ pre-trial perjury

in the same case warrants relief, and, if so,

under what circumstances.

Il.

THE DENIAL OF SILVERMAN'S PETITION

WITHOUT AN EVIDENTIARY HEARING WAS

GROSSLY IMPROPER AND SHOULD BE

CORRECTED BY A DIRECTIVE FROM THIS

COURT THAT PETITIONS WHICH STATE A

BASIS FOR RELIEF BE ACCORDED, AT THE

The rule on a motion for postconviction

relief is, simply stated, that if the allegations

contained in the motion would entitle the peti-

tioner to a new trial if proven true, a hearing

must be held. Machibroda v. United States,

368 U.S. 487, 496 (1962); Dalli v. United: States,.

491 F.2d 758, 760 (2d Cir. 1974); DeVincent v.

United States, 602 F.2d 1006, 1009 (lst Cir.

1979). Indeed the Second Circuit has

"taken a dim view of any summary rejection

of a petition for pest-convicticn relief

when supported by a sufficient affidavit."

Dalli, supra at 760; United States v. Tribote,

297 F.2d 598, 603-604 (2d Cir. 1961). None of the

exceptional circumstances which courts rely on to

deny a hearing on a motion which, if factually sus-

tained, would entitle the petitioner to relief

are applicable to the instant motion.

The most common basis for such a sunmary

denial is that the supporting affidavits are so

vague, conclusory, or otherwise inadequate that

they cannot support the moti. United States. v.

Franzese, 525 F.2d 27 (2d Cir. 1975), cert. den- :

ied, 424 U.S. 921 (1976). A fair reading of the

moving affidavits in the instant case, however,

makes it clear that they are "detailed and spe-

cific." Machibroda, supra at 495, They demon-

strate that Maloney told Scher that Friedland

lied during the 1968 hearing, and that Maloney

threatened, and indicated he could "control," a

perjury indictment. It is simply not true, as

Judge Palmieri stated in his decisiay, that the

moving papers record "no more than an opinion by

the prosecutor." Prosecutors do not ordinarily

"threaten" or offer to "control" indictments

which are based on only their “opinion” or

"suspicion."

Nor is it fair to say,as the district

court said in ruling on petitioner's motion,

that the instant motion is frivolous on its face.

Petitioner has, since the resolution of his last

motion, come upon new evidence in the fom of

Scher's statement and memorandum. A court may

not assume, without a hearing, that a petitioner

has acquired no new or additional information

since the time of his trial or postconviction

motion. Price v. Johnson, 334 U.S. 266, 290-

291 (1948).

Furthermore, petitioner was never accorded

a hearing m any of his prior motions. Dalii |

v. United States, supra at 761. Judge Palmieri's

denial of the instant motion without a hearing,

on the grounds that it was brought "[d]espite

three previous unsuccessful attempts seeking a

vacatur" and "(njotwithstanding the significance

of {the prior] rulings” was, therefore, in

light of the newly discovered evidence, improper.

Sanders v. United States, 373 U.S. 1, 15 (1963).

This is all the more so because the Scher memo-

randum could not have been uncovered previously

by due diligence; indeed, it was only an acci-

Gent that it was ever brought to light. More-

over, the "extraordinary malfeasance" alleged

is not “specifically and convincingly answered

by the affidavit of the public official accused."

United. States: v. Catalano, 281 F.2d 184, 185

(2d Cir. 1960). For there is no relevant affi-

davit from Maloney to contradict Scher.

Finally, a judge may deny a postconviction

motion without a hearing if his personal knowledge

Or recollection of events that occurred in his

presence conclusively negates the factual predi-

cates asserted in the motion. Friedman v.

United States, 558 F.2d 1010, 1015 n. 7 (5th Cir.

1979). But the key event relied on in petitioner's

motion occurred in the presence of only Maloney

and Scher. Judge Palmieri's knowledge of the

case is thus of no relevance.

The oniy conceivable basis, then, for a

denial without a hearing would have been that the

facts alleged, even if proven true, would not have

entitled petitioner to a new trial. The district

court did not, however, even consider this basis.

It simply denigrated the sufficiency of Scher's

affidavit and memorandum, refused to consider

Scher's second affidavit, thereby read the facts

as not having changed since petitioner's prior

enkiin., and concluded without legal citation in

support that "These circumstances can, by no

stretch of the imagination, constitute a consti-

tutional lapse in the government's case."

The error of this ruling is only campounded

by the fact that an issue of credibility can

rarely be resolved without the benefit of an evi-

dentiary hearing. Raines. v. United States, 423

F.2d 526 .4th Cir. 1970). This Court should

therefore grant certiorari and remand for an

evidentiary hearing below.

~ CONCLUSION:

The petition for a writ of certiorari to

the United States Court of Appeals for the Second

Circuit should be granted.

Respectfully submitted,

ROBERT MARKEWICH

Attorney for Petitioner

MARKEWICH, ROSENHAUS MARKEWICH &

FRIEDMAN, P.C.

350 Fifth Avenue

New York, New York 10118

(212) 563-3500

DANIEL MARKEWICH

GARY BROWN

Of Counsel

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in the

City of New York, on the 30th day of June

one thousand nine hundred and eighty.

N.B. Since this statement

does not constitute a for-

mal opinion of this court

and is not uniformly avail-

able to all parties, it

shall not be reported,

cited or otherwise used in

unrelated cases before this

or any other court.

Present: Hon. William H. Mulligan

Hon. Thomas J. Meskill

Hon. James S. Holden*

Circuit Judges,

— ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee eee ee ee eee ee ee ee ee ee eee ee ee

MILTON SILVERMAN,

STAMP OF THE

Petitioner-Appellant, UNITED STATES

COURT OF AP-

-against- PEALS FOR THE

SECOND CIRCUIT

UNITED STATES OF AMERICA, JUNE 30, 1980

Appellee.

Appeal from the United States District

Court for the Southern District of New York.

This cause came on to be heard on the

transcript of record from the United States

District Court for the Southern District of

New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the order of said District Court be and it

hereby is affirmed on the opinion below of

the Hon. Edmund L. Palimeri, 68 Cr. 762

(S.D.N.Y. Mar. 20, 1980). In the instant

case, Silverman brings his fourth oskiatenel

attack on his conviction for embezzlement of

union funds and falsification of union books

and records, in violation of 18 U.S.C. § 664

and 29 U.S.C. §§ 431(c), 436, 439(b)(c) and

50l(c). We find that the issues raised

here by appellant are totally without merit

and that Judge Palmieri's denial of Silver-

man's motion for a writ of error coram

nobis without a hearing was entirely proper.

/s/ William H. Muiligan

William H. Mulligan

_/s/ Thomas J. Meskill

Thomas J. Meskill

Circuit Judges

/s/ James S. Holden

James S. Holden

District Judge

*United States District Judge for the District

of Vermont, sitting by designation

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

228 OS OOO Oe eee eee 2 eee oe eeeoeee x

MILTON SILVERMAN, :

Petitioner, : 68 Cr. 762

(ELP)

- Against - :

UNITED STATES OF AMERICA, : OPINION

Respondent. :

— ee eee ee ee ee aa ae ae a ee ES Ee ee p 4

PALMIERI, J.

Despite three previous unsuccessful at-

tempts seeking a vacatur of the conviction

and a new trial, the petitioner, Milton

Silverman, now makes a fourth collateral at-

tack on his conviction in 1969 for embezzle-

ment of union funds and falsification of

union books and records. The merits of pe-

titioner's claims of error at his nine-day

jury trial and in the denial of his first

motion for a new trial (opinion dated April

30, 1969 (68 Cr. 762)) were thoroughly

examined by the court of appeals. United

States v. Silverman, 430 F.2d 106 (2nd Cir.

1970) .2 Certiorari was denied by the Sup-

reme Court on May 31, 1971. Silverman v.

United States, 402 U.S. 953 (1971). A re-

hearing of that denial was also denied. 403

U.S. 925 (1971). Three times since then

this court has been compelled to rule on

similar motions or petitions. It did so in

each instance with opinions dated June 22,

1971 (68 Cr. 762), March 21, 1972 (71 Civ.

4997) and May 5, 1976 (75 Civ. 4989). The

court of appeals' first post-appeal decision

rejecting Silverman's claims was made in

open court following oral arguments. United

States v. Silverman, 469 F.2d 1404 (2nd Cir.

1972), cert. denied, Silverman v. United

States, 93 S.Ct. 2271 (1973). The second

post-appeal decision was contained in a four-

page opinion by Judge Wyzanski. Silverman

v. United States, 556 F.2d 655 (2nd Cir.),

cert. denied, 434 U.S. 956 (1977). In none

of Silverman's post-trial proceedings was

an evidentiary hearing deemed necessary, al-

though his post-conviction motions and pe-

titions, including this one, have all con-

tained the strident language of a much abused

innocent. The succession of lawyers assist-

ing him have nearly all had an imperfect

knowledge of the trial record - a fact which

may have motivated Judge Wyzanski in writing:

We cannot close this opinion without

commenting upon the unnecessary waste

of judicial time in the District

Court and in this Court in being faced

with what is a manifestly frivolous

petition and a manifestly frivolous

appeal.

We recognize the cardinal importance

that no person should be convicted

upon the basis of perjury. We whole-

heartedly support the rule that it is

a denial of the due process guaranteed

by the Fifth Amendment for a person to

be convicted on the basis of testimony

known to the Government to be per ju-

rious. But this was not by any stretch

of the imagination an instance where

the rule could be appropriately in-

voked. Silverman v. United States,

556 F.2d at 659.

The opinion of Judge Wyzanski is of

special interest in connection with the

petition presently before this court, be-

cause Silverman's claim remains the same -

that Jacob Friedland,” a lawyer who repre-

sented him and his union before the trial,

gave perjurious testimony that was know-

ingly used by the Government. Judge

Wyzanski had this to say about this con-

tention:

With respect to Silverman's claim

that the Government knowingly used

the perjurious testimony of Fried-

land and supressed information it

had about him, we can only stand

aghast at the effrontery of Silver-

man's contention. There is not a

shred of evidence that the Govern-

ment had from Friedland or from any

other source admissible evidence or

even a lead that showed that he had

made the false entries in the minute

book. No doubt, the prosecutor had

his suspicions. But a person who

did know the full role of Friedland

was Silverman himself. It is fair-

ly inferrable that he at the least

acquiesced in an alteration made by

Friedland.

Moreover, Silverman's counsel at the

criminal trial deliberately, as a

matter of trial tactics, did not

seek to show and, for obvious

reasons, would not have wanted to

show, that Friedland himself alter-

ed tre minutes. Any such revelation

of falsification by the attorney

would have been attributed by the

jury, in all probability, to the

client who retained him. In any

event, the tactical decision made

at the criminal trial precludes

Silverman from relying on his

Chutzpadich contention that he has

new evidence of his attorney's

falsifications. Meyers v. United

States, 446 F.2d 37 (2nd Cir.,

- Silverman v. United States,

556 F.2d at 658.

Notwithstanding the significance of

these rulings which would appear to con-

sign the issue to the realms of collateral

estoppel or res judicata, Silverman re-

fuses to be discouraged. He now puts for-

ward the contention that the knowing use

of Friedland'salleged perjury occurred,

not at the trial, as he previously contend-

ed, but at a phase of the proceedings be-

3 This contention is made

fore the trial.

on the basis of an eleven-year old

memorandum recently disinterred from the

closed files of an attorney, Robert Scher,

who assertedly dictated it on February 4,

1969, three days after being retained by

Friedland during the Grand Jury proceed-

ings. Scher first represented Friedland

during a bitterly contested motion to

quash a Grand Jury subpoena seeking the

production of the records of two Locals

under Silverman's control. Scher then

represented Friedland at the trial in

March, 1969, when the Government sought

to obtain his testimony. Friedland was

himself retained by Silverman in the

course of the Government's Grand Jury

investigation and asserted throughout the

pretrial and trial proceedings that he

had represented Silverman as well as

Silverman's union. Silverman had separate

defense counsel at the trial. There was a

close working relationship among all these

attorneys at the trial. It was singularly

apparent at the extended in camera hearings

when Friedland unsuccessfully invoked his

attorney-client privilege, and thereupon,

when directed to testify, successfully

claimed protection under the Fifth Amend-

ment. Mr. Shivitz, counsel for the unions,

Mr. Gallop, one of the defense counsel for

Silverman at the trial, as well as Mr.

Scher, who acted as Friedland's personal

counsel, frequently conferred together at

the trial, and all of them sought to fore-

stall Friedland's testimony and sustain his

claims of privilege.”

THE SCHER MEMORANDUM

Basic to petitioner's position in

these proceedings is the Scher memorandum

of February 4, 1969. It is reproduced in

an appendix attached hereto and marked

"Copy Expurgated1 by Court." Because Mr.

Scher claimed that parts of it were pro-

tected by his attorney-client privilege,

this court reviewed the document when it

was produced at the request of the United

States Attorney, and eliminated only two

brief passages on page two of the memo-

randum and permitted disclosure of other

parts claimed by Mr. Scher to be privileged.

The original has been deposited with the

Clerk of the Court under seal and is avail-

able for court scrutiny. Mr. Scher has

also submitted an affidavit which is, in

effect, a redacted version of his memo-

randum of 1969, without the misspellings

and confused identities of the 1969 memo-

randum. Mr. Scher avers that when Silver-

man's "new attorney" sought him out in

1979 he “agreed to get my Friedland file

out of dead storage" and having refreshed

his recollection, he was able to state

that Assistant U.S. Attorney Maloney had

asserted Friedland had lied during the

pretrial hearing on a motion to quash a

Grand Jury subpoena duces tecum. This al-

leged assertion of the Government prosecu-

tor Maloney, a statement that could be

readily construed to be a personal

assessment by Maloney of Friedland's credi-

bility, has here been escalated into a con-

tention that Silverman was convicted

through the Government's knowing use of

false testimony at the pretrial hearing.

The high sounding rhetoric and impressive

but inapplicable citations going back to

Napue v. Illinois, 360 U.S. 264 (1959)

upon which Silverman relies stem from this

contention.

The Scher memorandum is thus Silver-

man's piece de resistance. It was appar-

ently dictated in a hurry and probably

typed in desultory fashion. It does not

appear ever to have been reviewed or cor-

rected before it was filed. Both Fried-

land's name, and Maloney's are misspelled.

In the sixth paragraph on page one the

remark that "he can control a perjury in-

dictment" was attributed to Murphy, not to

Maloney. It was made in answer to a

"hyperthetical" [sic] question by Scher of

10b

Maloney. Additionally, and in the same

paragraph, Murphy is again mentioned, al-

though the allusion was apparently to

Maloney. Even accepting the paraphrasing

and textual departures set forth by

Scher's affidavit, what the Scher memo-

randum boils down to is an expression of

Maloney's dim view of Friedland's credi-

bility and a final statement of position

by Scher that Friedland would not testify

voluntarily but would assert his legal

privileges. This is precisely what en-

sued so that the last paragraph of the

Scher memorandum was no more than a fore-

cast of the trial scenario. Scher's af-

fidavit, sworn to eleven years later,

clearly supports this in stating that his

O° .-) sede interest was in protecting

FRIEDLAND's rights by avoiding his tes-

timony altogether if possible and, if not,

by obtaining immunity from prosecution and

preventing professional discipline."

llb

Although the petitioner's papers clear-

ly imply a "deal," there is no evidence that

Scher or Friedland ever had any understand-

ing with Maloney concerning Friedland's pos-

sible testimony. Indeed, upon the argument

before this court, Silverman's attorney ex-

plicitly withdrew any claim that there was

one. Additionally, despite Silverman's sug-

gestion in his papers that there is some-

thing wrong in the Government's failure to

submit an affidavit by prosecutor Maloney

in these proceedings, there is on record an

affidavit by Maloney, submitted to this

court in the 1976 proceedings, in which

Maloney makes it quite clear that he did

not know what Friedland's testimony would

be, even after immunity was granted.” This

is quite apparent from the trial record as

well. Moreover, the pretrial conference

between Scher and Maloney dealt with a

matter which occurred prior to trial and

which never became a factual issue at trial.

12b

Additionally, and fairly read, the

Scher memorandum records no more than an

opinion by the prosecutor, Maloney, that

Friedland had lied at a pretrial hearing.

These circumstances can, by no stretch of

the imagination, constitute a constitution-

al lapse in the Government's case. As

Judge Wyzanski said:

No doubt the prosecutor had his sus-

picions. But a person who did know

the full role of Friedland was

Silverman himself. Silverman v.

United States, 556 F.2d at 658.

This was not only a plain truth when

it was written, it remains true today, not-

withstanding the artful attempt to make the

Scher memorandum sound otherwise. The

court rejects the contention implicit in

the motion before it that the Scher memo-

randum has suddenly sprung to life to re-

veal a long-hidden truth.

13b

CONCLUSION

It is a lamentable state of affairs

in the overburdened federal courts that

repetitive proceedings of this kind can

be brought without hindrance, entailing as

they do a serious waste of judicial re-

sources with all that implies by way of ex-

pense, as well as prejudice to other liti-

gants waiting to be heard. The defendant

here, convicted after a jury trial eleven

years ago, after numerous unsuccessful ap-

peals and collateral attacks, again seeks

to vacate his conviction by attempting to

undermine the evidence adduced by the

Government at his trial. In this instance

he is repeating an effort to undermine the

evidence provided by the testimony of the

same witness. As Judge Gagliardi of this

court had occasion to point out in a recent

opinion in Wolfson v. United States, 66

Civ. 720 (LPG), (S.D.N.Y., filed February

20, 1980):

, L4b

Were this a habeas petition, the court

would have recourse to a provision in

28 U.S.C. § 2254 (and 28 U.S.C. § 2255),

which reads:

(b) Successive petitions. A

second or successive petition

may be dismissed if the judge

finds that it fails to allege

new or different grounds for

relief and the prior deter-

mination was on the merits

or, if new and different

grounds are alleged, the judge

finds that the failure of the

petitioner to assert those

grounds in a prior petition

constituted an abuse of writ.

Rules Governing § 2254 Cases, Rule 9.

The court is not aware of an analogous

provision in 28 U.S.C. § 1651 authorizing

the dismissal of a petition which the

court considers to be an abuse of the

writ of error coram nobis.

These continuous and baseless petitions

constitute an abuse of process which may

well deserve appropriate sanctions. See

Der-Rong Chour v. Immigration and Natural-

ization Service, 578 F.2d 464, 468-469 (2d

Cir. 1978), cert. denied, 440 U.S. 980 (1979).

See also, Lowenschuss v. Bludhorn, Nos. 79-

7566, 78-7267 (2d Cir. January 9, 19809),

15b

slip op. at 87l.

The motion is denied in all respects.

It is so ordered.

/s/ Edmund L. Palmieri

Edmund L. Palmieri

U.S.D.J.

Copies have been mail-

ed to counsel of re-

cord

Dated: New York, New York

March 20, 1980

16b

FOOTNOTES

l. The conviction was affirmed with re-

spect to eight counts (namely, counts 9

through 15 and count 18) and was reversed

by a split court with respect to the first

eight counts. While this disposition re-

duced the total fines from $16,000 to

$8,000, the eight-month prison sentence

remained unimpaired. A detailed statement

of the facts relevant to Silverman's

prosecution are set forth in this opinion

and what follows assumes a familiarity

therewith.

a< Friedland, presently under indictment

in another jurisdiction, was a reluctant

witness at the trial in 1969. When called

to the witness stand on the Government's

direct case, he successfully invoked his

rights under the Fifth Amendment after an

unsuccessful attempt to assert an attorney-

client privilege. His testimony was ob-

tained by the Government only in time for

its rebuttal case and when it was able to

give him immunity from prosecution under

18 U.S.C. §§ 2514 and 2516 (1) (b).

3. In addition to the motion under con-

sideration, Silverman has also moved for

disqualification of the court, a motion

that was denied at the outset of the hear-

ing on February 27, 1980. The ruling on

the motion is reproduced in the appendix.

4. The partisanship of this array of

legal talent and the pro-Silverman stance

they adopted at the trial, and continue

to pursue in these proceedings, can best

be exemplified by a colloquy between Mr.

Shivitz and the trial court. This occur-

red when Mr. Shivitz vigorously resisted

17b

the production of a report made by Fried-

land to one of the unions after examining

their records. This report was of con-

siderable probative value to the Govern-

ment's case and was discussed at some

length by the court of appeals. (430 F.2d

106, 120-22). That court held that the

report constituted proof of the fabrication

of the union minute books and that, along

with other evidence, it permitted the jury

to determine that Silverman was responsible

for their alteration after they were re-

turned from Friedland and before they were

surrendered to the Grand Jury investigation.

The following is excerpted from the minutes

of the Silverman trial when Friedland was

called to the witness stand by the Govern-

ment:

Friedland Direct

THE COURT: I would like to show him

this report to make sure he knows what we

are talking about.

MR. SHIVITZ: That is up to counsel

to establish, to find out from the wit-

ness' own recollection as to whether he

recalls the report. He testified to it

in May before Judge Murphy. Counsel was

present at the time.

THE COURT: May I have the report,

please?

MR. SHIVITZ: If your Honor please,

the report is under seal.

THE COURT: Whose seal?

MR. SHIVITZ: I have sealed the re-

port and I would like not to take it from

the seal and I would like not to furnish

18b

it at this time because I feel there is

no demonstration that there is a need for

it .

THE COURT: There is no sanctity to

your seal. I am asking you to turn over

that report to me.

MR. SHIVITZ: For what purpose?

THE COURT: For appropriate use in

conducting these judicial proceedings.

MR. SHIVITZ: I'm afraid, if your

Honor please, that at this point I must

respectfully resist the Court's request

and I would like to furnish this support

of my position, the determination of the

Court of Appeals.

I do this with the utmost respect,

Judge, please understand my position

here; I represent a client. I feel that

there has been no demonstration, firstly

that there is no ne d for this --

THE COURT: I can't understand your

objection to passing the attorney's own

paper to him for the purpose of furnish-

ing a basis for an appropriate question.

I am not looking at it. This is his own

memorandum and I cannot understand why

you want to keep it confidential from the

author himself.

MR. SHIVITZ: With the understanding

it is going to be returned to me from

this author without waiving any of the

arguments --

THE COURT: You are waiving nothing

since you are doing it under my direction.

I can't undertake an understanding with

19b

you at this time. I don't know what is in

it and I don't know what he's going to say.

It depends on the course of the proceeding.

May I have that document? I want it

marked as an exhibit without looking at it

at this time.

Mark it as a Court Exhibit for

identification.

(Court Exhibit 6 marked for identifi-

cation. )

Transcript - United States v. Silverman, 68

Cr. 762, March 10, 1969, pp. 4/1-73.

Be At the time of the hearing the court

deplored the absence of an affidavit from

Mr. Maloney, failing to recollect at the

time that there was indeed an affidavit

from Mr. Maloney, submitted in the 1976

proceedings.

20b

APPENDIX

The court's ruling on Silverman's

motion for recusal made part of the record

of the hearing of February 27, 1980 is

reproduced below. The motion for dis-

qualification, pursuant to 28 United States

Code, Sections 144 and 455 or for voluntary

withdrawal is denied.

Mr. Silverman's affidavit and what-

ever papers have been submitted in support

of this motion are insufficient to warrant

a disqualification. Taking the facts al-

leged to be true, the alleged bias or

prejudice has its source only in prior

judicial proceedings or in rulings that I

have made pursuant to my duty as a judge

of this court; United States v. Grinnell

Corp., 384 U.S. 563, (1963); In Re Inter-

national Business Machines Corp., No. 79-

3070 (2d Circuit, February 22, 1980.)

21b

In its very recent IBM opinion, the

Second Circuit clarified this Circuit's

standards for disqualification. It is

clear that Sections 144 and 455(b) are in

pari materia and necessitate a showing of

personal bias or prejudice that is extra-

judicial in nature as distinguished from

conduct within the judicial context.

Furthermore, although the court noted

its earlier dictum that in-court rulings

may be relevant to establish prejudice

under 455(a), the court stated at pages

nine to ten, and I quote:

However, we cannot agree that adverse

rulings by a judge can, per se, create

the appearance of bias under Section

455(a). A trial judge must be free

to make rulings on the merits with-

out the apprehension that if he makes

a disproportionate number in favor

of one litigant, he may have created

the impression of bias. Judicial

independence cannot be subservient

to a statistical study of the calls

he has made during the contest. As

Mr. Justice Frankfurter noted in

Wilkerson v. McCarthy, 336 U.S. 53,

65 (1949) (Frankfurter, J. concurring),

22b

"A timid judge, like a biased judge,

is intrinsically a lawless judge."

We conclude that under Section 455(a),

the bias to be established must be

extrajudicial and not based upon in-

court rulings.

I end the quote from the IBM opinion.

I am puzzled and disturbed by the

statement in the reply brief of Silverman

that:

There is such a thing as knowing too

much about a case and it is that

knowledge by this Court -- rather

than the facts or the law -- that the

Government here relies on as its best

hope that the Court will not order a

new trial. As defense counsel ex-

pected, the claim is "Wolf! Wolf!"

once too often in an effort to avoid

this Court's perception of the real

merits of the instant motion.

I suggest that nothing could be further

from the truth or more alien to the standards

of recusal enunciated by the Second Circuit.

Any reassignment of the pending motion

would result in a significant and needless

waste of judicial resources.

23b

In affirming the existence of a time-

liness requirement as a requisite for a re-

cusal motion under Section 455 of Title 28

of the United States Code, even though none

is expressly set forth in the statute, the

court of appeals said in its recent IBM

decision, and I quote from Page 18:

A major practical reason for the

timeliness requirement is that the

granting of a motion to recuse

necessarily results in a waste of

the judicial resources which have

been invested in this proceeding.

I might add parenthetically that this

case has been a cross I have had to bear

for almost eleven years after a full and

complete examination of the alleged merits

of the trial errors by the court of appeals.

It was affirmed by the court of appeals

with some modifications that iiad to ao with

the fines imposed. The prison sentence was

not disturbed. There have been four col-

lateral attacks, this is the fourth, on

24b

that decision during the past ten years.

None of them has succeeded. Now we have

a new one.

Under the current standards for dis-

qualification in this circuit, I can find

no basis for the validity of a charge of

bias or prejudice at any time in this

proceeding.

25b

COURT EX.

2 - 2/27/80

February 4, 1969 COPY EXPURGATED BY THE

COURT 2/20/80

Unsealed

MEMO FOR THE FILES

U.S. and Jacob Friedland

(1515)

Conference February 3, 1969 between RES

and Andrew Malloney from 3 to 3:45 p.m.

In response to a question, I assured

Malloney that we were representing Friedlan

and not Milton Silverman. In the past,

several attorneys have ostensibly repre-

sented Friedlan, and then asked to withdraw

because of a conflict of interest.

Malloney has a theory that Judge

Murphy's order will be no bar to the

testimony of Friedlan, because Friedlan

lied during the hearing on the motion to

suppress, and in fact did give criminal

advice to his clients, thus making it im-

proper for them to claim the privilege.

I informed Maloney that there was no

chance of Friedlan testifying before the

Grand Jury, and Maloney agreed not to waste

either of our time.

Maloney's argument is that in specif-

ically denying the existence of a report

for Local 1614, Friedlan exposed himself

to a charge of perjury. Maloney suggested

26b

that he has such a report, or will have it

shortly through informants. He wants to

trade a possible perjury indictment for the

testimony of Friedlan.

As a hyperthetical question, I asked

Maloney what would happen if Friedlan did

cooperate, and recant it before Judge

Palmieri. What would prevent a stickler

for propriety such as Palmieri from insist-

ing that a prosecution take place, or in-

sist that the Bar Association be notified

that Friedlan committed a fraud on Judge

Murphy and should be punished. Murphy ad-

mitted that there is no answer to this

question and that while he can control a

perjury indictment, he obviously has

nothing to do with Judge Palmieri's deci-

sions. I think that Murphy understands

that under the circumstances, no cooperation

could be had from Friedlan.

Maloney's point is that he does not

want to go to trial because he does not

want to reveal the identity of informers,

but that if he is forced to go to trial,

he will do so. He wants me to use Fried-

lan to put pressure on Silverman, and I

indicated that having no relationship

with Silverman whatsoever, the matter was

not in my hands, but that I would act as

a conduit to see that the information and

suggestions were brought to the attention

of our client.

On the issue of accepting a subpoena

for Friedlan, I begged off, explaining

that we had been in the case for three

days, and I could not very well deprive

Friedlan of his right to personal service.

Maloney asked that I advise him in

advance of February 17th, if Friedlan has

any intention of cooperating.

27b

February 4th, I relayed the inform-

ation to Maloney that I would accept the

subpoena; that there had been no report

made out for Local 16 14

x kk

and that the wit-

ness would not testify voluntarily but

would claim his various privileges. I

requested Maloney to inform me when he

knows, on the exact date when the at-

tendance of Friedlan would be required.

This he agreed.

UNITES STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

~~ et Oe eh @ ee ee © & © ee oe x

UNITED STATES OF AMERICA

-against-

MILTON SILVERMAN,

Defendant.

a ee ee ee ee ee eee ee x

NOTICE OF MOTION FOR WRIT OF

ERROR CORAM NOBIS AND DIS-

QUALIFICATION OR WITHDRAWAL

OF JUDGE

SIRS :

PLEASE TAKE NOTICE that, upon the

annexed affidavits and exhibits and upon

all the papers and proceedings hereto-

fore had herein and in connection there-

with, a motion will be made on the 4th

day of December, 1979, before this Court,

at Room 2003, United States Courthouse,

Foley Square, New York, New York, at

2:30 o'clock in the afternoon or as soon

thereafter as counsel can be heard, for a

writ of error coram nobis pursuant to 28

U.S. Code §165l1, United States v. Morgan,

346 U.S. 502 (1954) and other case law,

and for a hearing on the said motion, and

for vacatur of the conviction herein, and

for a new trial, on the ground of

prosecutorial misconduct in the suppres-

sion of evidence relevant and material to

the case and favorable to the accused, and

for disqualification or withdrawal of

HON. EDMUND L. PALMIERI, the Trial Judge

herein, from all further consideration of

these proceedings.

Dated: New York, New York

October 31, 1979

Yours, etc.,

MAXAEWICH ROSENHAUS MARKEWICH

& FRIEDMAN, P.C.

Attorneys for Defendant

By:/s/ Daniel Markewich

Daniel Markewich

A Member of the Firm

Office & P. O. Address

350 Fifth Avenue

New York, New York 10001

563-3500

TO:

HON. ROBERT B. FISKE, JR.

United States Attorney

l St. Andrew's Plaza

New York, New York 1L00uU7

UNITED STATES OF AMERICA

SOUTHERN DISTRICT OF NEW YORK

ee x

UNITED STATES OF AMERICA

-against-

68 Cr. 762

MILTON SILVERMAN, (ELP)

Defendant.

ee ee | x

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK )

COUNTY OF NEW YORK) SS:3

ROBERT E. SCHER, being duly sworn, de-

poses and says:

1. I am a member of the Bar of the

State of New York, having been admitted in

1958. I am also a member of the Bar of

this Court and of the Second Circuit Court

of Appeals, having been admitted in 1960.

I was bailiff-law clerk to HON. ARCHIE O.

DAWSON of this Court from 1956 to 1958,

and an Assistant United States Attorney in

this District from 1958 to 1961. I was

for many years a member of the firm of

RAPHAEL, SEARLES, VISCHI, SCHER, GLOVER

& D'ELIA, and am now in private practice

with MR. SEARLES.

2. Early in the year 1969, I was

retained to represent an attorney named

JACOB FRIEDLAND, whose cooperation as a

Government witness had been sought in

the forthcoming prosecution of MILTON

SILVERMAN. In this connection, I was

present, by myself, at a conference with

Assistant United States Attorney ANDREW

MALONEY at his office on February 3,

1969, from three to three forty-five in

the afternoon. I had previously known

MALONEY because he joined the United

States Attorney's office when I had al-

ready been an Assistant for some time.

No one else was present during our Feb-

ruary 3 discussion.

3. At the beginning of our confer-

ence, I assured MALONEY that my law firm

was representing only JACOB FRIEDLAND and

not MILTON SILVERMAN or his interests.

That was absolutely true.

4. MALONEY informed me that it was

his legal theory that JUDGE MURPHY's orders

of June 24 and July 10, 1968 quashing

FRIEDLAND's grand jury subpoena would be

no bar to FRIEDLAND's trial testimony be-

cause, MALONEY asserted, FRIEDLAND had

lied during the June 19, 1968 hearing on

the motion to quash (prior to my repre-

sentation of FRIEDLAND) and, further, had

in fact given criminal advice to his

clients, thus making it improper for them

to claim the privilege.

5. MALONEY's argument, he told me,

was that in specifically denying the

existence of a report for Local 1614,

FRIEDLAND had exposed himself to a charge

of perjury. MALONEY suggested to me that

he had the Local 1614 report, or would

have it shortly through informants.

MALONEY told me that he wanted to trade a

possible perjury indictment for FRIEDLAND's

testimony. MALONEY added that, while he

could "control" a perjury indictment, he

could not control any disciplinary problems

that FRIEDLAND might have.

6. I informed MALONEY that there was

no chance that FRIEDLAND would testify be-

fore the grand jury, whereupon MALONEY

agreed that he would not waste our time

with that. MALONEY advised me that he did

not want to go to trial if it could be

avoided, because he did not want to have

to reveal informants' identities. He asked

me to use FRIEDLAND to put pressure on

SILVERMAN to plead guilty. I advised

MALONEY that, since I had no relationship

with SILVERMAN, the most I could do would

be to act as a conduit and see that the

information was brought to FRIEDLAND's at-

tention.

7. Thereafter, I was present as

FRIEDLAND's attorney during certain portions

of MILTON SILVERMAN's trial. Naturally, my

sole interest was in protecting FRIEDLAND's

rights -- by avoiding his testimony alto-

gether if possible and, if not, by obtaining

immunity from prosecution and preventing

professional discipline. Clearly, it was

not in FRIEDLAND's best interests that I

reveal to anyone outside my law firm the

prosecutor's belief that FRIEDLAND had

previously lied under oath or the fact that

MALONEY had agreed not to seek FRIEDLAND's

perjury indictment if he testified at trial.

Therefore, I told no one except my partners.

8. Ten years later, in 1979, DANIEL

MARKEWICH, ESQ., MILTON SILVERMAN's new

attorney, telephoned me and inquired whether

had any information indicating that either

FRIEDLAND or I had at any time discussed

with MALONEY either the content of FRIED-

LAND's prospective testimony or the

possibility that either of two prospective

witnesses would be called by the Govern-

ment. Because I knew the good reputation

of MARKEWICH's law firm, I agreed to get

my FRIEDLAND file out of dead storage and

see whether materials therein might refresh

my recollection as to the ieeuse which

MARKEWZCii nac asked me about. When I re-

viewed the materials in the file, I

answered MARKEWICH's questions in the nega-

tive, but also volunteered that I had re-

freshed my recollection from a contempora-

neously made memorandum as to a conversa-

tion that I had had with MALONEY on Feb-

ruary 3, 1969. After MARKEWICH satisfied

me that no attorney-client privilege ap-

pertained and that it was for me to decide

whether to attempt to invoke the work-

product rule, I determined that no

legitimate interest of FRIEDLAND's still

required protection ten years after

SILVERMAN's trial, and I then revealed to

MARKEWICH the content of my conversation

with MALONEY in which he discussed FRIED-

LAND's alleged prior perjury at a prior

hearing in the very case in which the

Government wanted to use FRIEDLAND as a

witness.

9. Should this Court so require, I

am willing to repeat and corroborate the

contents of this affidavit under oath at

such hearing as may be ordered. I have

the memorandum of my conversation with

MALONEY, dictated and dated only one day

afterwards, which I shall produce at the

hearing.

/s/ ROBERT E. SCHER

ROBERT E. SCHER

Sworn to before me this

day of October, 1979.

DANIEL MARKEWICH

NOTARY PUBLIC, STATE OF NEW YORK

Commission Expires March 30, 19 _

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-against- 68Cr.762

(ELP)

MILTON SILVERMAN,

Defendant.

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK )

COUNTY OF NEW YORK) SS-:

DANIEL MARKEWICH, being duly sworn, de-

poses and says:

1. I ama member of the firm of

MARKEWICH ROSENHAUS MARKEWICH & FRIEDMAN,

P.C., presently the attorneys for MILTON

SILVERMAN. I have been a member of the

Bar of this State since 1965, of the Bar

of this Court since 1969, and of the Second

Circuit Bar since 1973. I was an Assistant

District Attorney in New York Countv from

1965 to 1969. I am a member of the

Committee on Criminal Courts, Law and Pro-

cedure of the Association of the Bar of the

City of New York. I make this affidavit in

support of the defendant's motion for a

writ of error coram nobis. The defendant

was convicted before JUDGE PALMIERI and a

jury in 1969, and that conviction was up-

held by the Circuit Court in United States

v. Silverman, 430 F.2d 106 (2d Cir. 1970)

and 439 F.2d 1198 (2d Cir. 1970), cert.

denied, 402 U.S. 953 (1971).

: 2. I was retained by the defendant

early in 1978 to investigate the possibility

of bringing a new-trial motion grounded in

certain materials (annexed hereto as Exhibit

"A") relating to the request for immunity

for JACOB FRIEDLAND that JUDGE PALMIERI had

inspected in camera in ruling on defendant's

last prior motion but which defendant him-

self had obtained under the Freedom of

Information Act only during the process of

appeal from JUDGE PALMIERI's ruling. Shortly

10d

after commencing investigation of the is-

sues, I became ill with hepatitis and was

incapacitated for several months. At last,

in the fall of 1978, I was able to commence

my perusal of the voluminous prior papers

in this case, and to begin researching the

law. Additionally, other requests were

pending under the Freedom of Information

Act, relating to MAX SANCHEZ' immunity

papers (annexed hereto as Exhibit "B"),

that made it seem advisable to wait before

bringing a motion.

3. Finally, early in 1979, I had

enough information to warrant my contact-

ing ROBERT SCHER, and we then had the

conversations that he describes in his

affidavit. To my surprise -- and, I may

say, delight, because I was instantly

-—~

aware of the Brady v. Maryland, 373 U.S.

83 (1963), and Giles v. Maryland, 383 U.S.

66 (1967), implications -- I found that

the information obtained from SCHER required

lld

another full round of factual and legal re-

search. I realized that this was MILTON

SILVERMAN's best and last chance for post-

judgment relief, and I wanted to make sure

that it was done as carefully as possible

in order to rebut any possible charge of

""Wolf, wolf!' once too often." For

SILVERMAN had brought several prior motions

for post-judgment relief, the last of

which had been called "frivolous" by the

Second Circuit. Silverman v. United States,

556 F.2d 655, 659 (2d Cir.), cert. denied,

434 U.S. 956 (1977). That was, of course,

long before my involvement in this case and

my interview with ROBERT SCHER. The in-

stant motion is, to say the least, not

frivolous but deadly serious and well-founded.

4. While rejecting defendant's al-

legations of prosecutorial misconduct in

1977, the Second Circuit had hastened to

add:

"We recognize the cardinal importance

that no person should be convicted on

12d

the basis of perjury. We whole-

heartedly support the rule that it

is a denial of the due process

guaranteed by the Fifth Amendment

for a person to be convicted on

the basis of testimony known to

the Government to be perjurious."

In the instant case, it is at last provable

that ANDREW MALONEY, whose conduct herein

has already been criticized by the Second

Circuit as "characterized by a degree of

over-kill," deliberately, intentionally and

wrongly withheld from the defense his knowl-

edge and belief that JACOB FRIEDLAND had

lied on a material and relevant issue on a

prior hearing in the case (the minutes of

which are annexed hereto as Exhibit "C").-

and that he had offered FRIEDLAND freedom

from a perjury indictment in exchange for

his trial testimony. Instead of fulfilling

his legal and ethical responsibilities

under Giglio v. United States, 405 U.S. 150,

153 (1972) and Napue v. Illinois, 360 U.S.

264, 269 (1959), to reveal this valuable

13d

information, MALONEY actually took steps to

hide it: (1) He told the Court in the

presence of defense counsel that FRIEDLAND

was a target for obstruction of justice, but

said nothing about perjury; (2) he told the

same thing, and made the same omissions,

to the Attorney General in his immunity re-

quest for FRIEDLAND, perhaps because the

Justice Department would not have been like-

ly to grant immunity to a witness who had

already lied under oath in a hearing on a

material issue in the same Case; (3) he was

careful to ask FRIEDLAND no questions on

direct examination at trial that would have

required him to repeat his perjury. (Ex-

tracts from the trial minutes are annexed

hereto as Exhibit "D.") Such was MALONEY's

view of his responsibilities toward a de-

fendant who, in his own words in the im-

munity request, "the Department has been

investigating for some 10 years without

success...this is the closest we have ever

14d

come!" This misconduct by the prosecutor

falls within the ambit of the latest Silver-

man decision and mandates reversal.

5. Unfortunately, after receiving the

factual and legal information in support of

this relief, I was unable to proceed im-

mediately because I became deeply involved

in other litigation that had pressing dead-

lines, including an emergency appeal, a

client's disciplinary proceeding, a couple

of major trials, several exacting pre-trial

motions, and the completion of my own

matrimonial litigation. Now, having return-

ed from a summer vacation, I have prepared

and am submitting this motion, which re-

quests vacatur of the defendant's conviction

and a new trial.

6. There can be no doubt that the

trial testimony of FRIEDLAND -- the Govern-

ment's last, and only rebuttal, witness --

was a key to the conviction of the defendant

on all counts. The Second Circuit held,

15d

United States v. Silverman, supra, 430 F.2d

at 118, that FRIEDLAND's testimony was di-

rectly probative of counts 10, ll, 12 and

13, as well as 18. (A copy of the indict-

ment is annexed hereto as Exhibit "E.") The

tenth through thirteenth counts charged

embezzlements, and indeed MALONEY's immunity

request for FRIEDLAND was grounded, as it

had to be, in the contention that his

testimony was relevant to "a violation of

29 U.S.C. Section 501(c)" -- embezzlement.

See Matter of Vericker,. 446 F.2d 244 (2d

Cir. 1971). The ninth and fourteenth

counts of the indictment also charged

embezzlements, and the fifteenth count

charged false reporting, so it would be

naive to contend that FRIEDLAND's testimony

was not persuasive to the jury upon these

counts as well. Indeed, the Court

specifically charged the jury at page 1164

of the trial transcript that

16d

"if you find that these two pages have

been fabricated, after a subpoena was

served upon the union for their

production, it would be a circumstance

for you to consider in the light of

all the evidence in the case in deter-

mining the defendant's guilt or in-

nocence,"

This instruction bore on no particular count

or counts, but rather on all of the charges.

Earlier, at page 1160, the Court had charged

that there was "a sharp factual controversy"

as to whether pages of the minute books

"were fabricated for the purpose of providing

the defendant with a false defense in this

trial." This charge too told the jurors that

if they believed that FRIEDLAND's testimony

demonstrated fabrication of evidence, they

were free to reject the entire defense as

false. And at page 27 of the transcript of

argument of a new-trial motion before JUDGE

PALMIERI on December 12, 1969 (annexed here-

to as Exhibit "F"), he suggested that in

fact the jury had probably found from the

fabrication of evidence that the d2fendant

had perjured himself at trial:

17d

"The jury in this case could have

concluded and would have been quite

justified in concluding that evidence

had been fabricated for the trial.

They would have been justified in

concluding that the defendant perjured

himself in his testimony, and so. these

affidavits come before me with a bit-

ter taste, not only of conviction,

but of specific findings that the jury

probably made that were very seriously

adverse to the defendant's position."

Under the circumstances, it is realistically

impossible to conclude that FRIEDLAND's

testimony -- which, if believed, directly

bore on the defendant's guilt of counts

10, 11, 12, 13 and 18, demonstrated his

guilt of embezzlement (also charged in count

14) and false record-keeping (also charged

in count 15), and showed that a false de-

fense had been created -- did not constitute

the key testimony against him. FRIEDLAND's

testimony was highly material.

7. The only count that could arguably

stand alone is count 14, involving the air

conditioner. But, on a prior motion in

which SILVERMAN alleged that since he had

18d

been wrongly convicted of count 14 the

other counts should also be set aside,

Assistant United States Attorney JACK

KAPLAN conceded in an affidavit filed

December 8, 1969 (annexed hereto as Ex-

hibit "G") that count 14 standing alone

was the weakest charge in the indictment:

"Count 14 was of no

great significance by comparison

with the other counts. The fact

that the jury asked for a reading

of some of the Count 14 testimony

only shows that the jury knew what

it was doing, since the proof of

Count 14 was simply a case of one

man's word (CHLYSTUN's) against

another's (SILVERMAN's)."

See also, pages 1037-1038 of the Court's

charge at trial and Silverman v. United

States, supra, 556 F.2d at 657, where the

Second Circuit alluded to the "extensive

conflicting evidence" as to the four-

teenth count. Not only did the prior

motion demonstrate that SILVERMAN would

probably not have been convicted, or at

least probably would have been granted a

new trial even without proof of

19d

prosecutorial suppression, had count 14

stood alone. More importantly for the in-

stant motion, even JACK KAPLAN conceded

that the jury felt that it must examine

count 14 more carefully than the other

charges, because it was only CHLYSTUN's

word against SILVERMAN's. JUDGE PALMIERI

himself observed that the jurors

probably concluded that SILVERMAN had

perjured himself at the trial because,

based largely on FRIEDLAND's testimony,

they concluded that the defense had been

fabricated. Such a finding on the jury's

part would bear, under these circum-

stances, at least as strongly on count 14

as on any of the other counts. Of course,

count 14, like counts 10, ll, 12 and 13,

was an embezzlement from the Unions, and

FRIEDLAND's testimony stood for the

proposition that SILVERMAN had directed

the falsification of records (counts 18

and 15) to cover up embezzlements (counts

20d

10, 11, 12, 13 and 14). Indeed JUDGE

PALMIERI himself in a March 21, 1972

opinion (annexed hereto as Exhibit "H")

held that FRIEDLAND's testimony was

generally "clearly admissible" on the is-

sue Of SILVERMAN's "intent." Certainly,

a finding by the jury that FRIEDLAND him-

self had previously committed perjury on

a material issue at a hearing in the very

case on trial might reasonably have led

to a different verdict on all counts.

8. Five factual affidavits are

submitted herewith. From these sworn

statements, it would appear that SILVERMAN

knew a report had been submitted to Local

1614 but not that FRIEDLAND had testified

that no such report had been made; GALLOP

(and presumably ROGGE) knew that FRIEDLAND

had testified that no Local 1614 report

had been made but did not know that there

was in fact such a report; SHIVITZ himself

represented that no report had been made,

21d

and believed FRIEDLAND's testimony to be

truthful; SANCHEZ knew that FRIEDLAND had

falsely testified that no report had been

made but shared that fact with no one ex-

cept perhaps his own attorney, now

deceased; SCHER knew that MALONEY contend-

ed that FRIEDLAND had committed perjury at

a hearing in denying the existence of the

Local 1614 report, but SCHER was bound

to withhold that information to protect

his client; MALONEY knew and believed that

FRIEDLAND had committed perjury on a mate-

rial issue at a prior hearing in the same

case, and offered freedom from indictment

therefor, yet took no steps to inform

defense counsel or the Court. As the ac-

companying memorandum of law shows, this

deliberate prosecutorial suppression

mandates vacatur of SILVERMAN's conviction

and a new trial.

9. It has been noted hereinabove

that the majority in the Second Circuit

22d

criticized MALONEY for "over-kill" in con-

nection with this very case, supra, 430 F.2d

at 128. It could not be more evident that

MALONEY was out to "get" SILVERMAN; the im-

munity request itself so demonstrates.

SCHER's affidavit brings to light for the

first time that MALONEY was guilty of de-

liberate suppression. Indeed, he not only

sat idly by but even misled the court and

defense counsel. At page 634 of the trial

transcript, MALONEY specifically told the

Court that FRIEDLAND had been a target for

"a possible obstruction of justice," and

that he had advised FRIEDLAND of that

"through MR. SCHER." That alleged ob-

struction concerned "the changing of these

documents." Nothing was said about

perjury, or about discussion of a perjury

indictment with SCHER, or about the exis-

tence of the Local 1614 report, or about

a "deal." MALONEY had a duty to speak;

SCHER had a duty not to speak. MALONEY

23d

effectively misled defense counsel and the

Court, and later even his superiors in the

Justice Department, by failing to bring

FRIEDLAND's prior perjury and the threat

of indictment therefor to light at a time

when it could be made use of on cross-

examination.

10. There can be no question in this

case that the alleged obstruction of justice

was not the same as the alleged perjury, and

that MALONEY's revelation of the one crime

was not a revelation of the other. If page

634 of the trial transcript is not suf-

ficiently clear as to what MALONEY thought

constituted obstruction of justice, page

1096 of the sentencing minutes (annexed

hereto as Exhibit "I") further demonstrates

what MALONEY meant by that term:

"As your Honor well knows from

the proof in this case, Count 18 is

quite another story. It encompasses

a lot of things, keeping false books

and records, but primarily the minute

books the proof has shown was, by

virtue of MR. FRIEDLAND's being granted

24d

immunity and the laboratory an-

alysis, that that is nothing more

or less than an obstruction of

justice during the course of the

investigation in this case, and

presumably that was at the behest

of MR. SILVERMAN."

This, of course, like the rest of MALONEY's

statements to defense counsel and the Court,

gave no hint that the prosecutor believed

and contended that FRIEDLAND had lied under

oath earlier in the case. Moreover, defense

counsel's reaction must have paralleled the

Court's, at page 639: MALONEY thought

everyone was guilty of obstructing his in-

vestigation:

ll. Indeed, MALONEY's solution to the

problem posed by calling to the stand at -

trial a witness who he knew had previously

lied in the same proceeding was ingenious.

Under then 18 U.S.C. §2514 FRIEDLAND re-

ceived transactional immunity, which ap-

parently ran even to his prior perjury, so

long as he did not repeat it at the trial.

25d

Allegedly to protect FRIEDLAND's rights,

MALONEY agreed at page 647 of the trial

transcript to severely restrict the scope

of his examination of FRIEDLAND. As the

Court phrased it at page 649:

"MR. MALONEY has agreed to go no

further than to get MR. FRIEDLAND’s

recollection of the condition of

these minute books at the time he

saw them."

Then, at pages 977-982 and 991, MALONEY

questioned FRIEDLAND only about his

examination of the books and records of

Local 810 and his report to that Local.

Purposely, so that FRIEDLAND would not

xepeat his prior perjury and thus un-

questionably obligate MALONEY to disclose

it, MALONEY asked FRIEDLAND no questions

about Local 1614. Therefore, MALONEY may

have disingenuously reasoned, he was under

no legal or ethical obligation to reveal

FRIEDLAND's prior perjury to defense

counsel or the Court. But, regardless of

MALONEY's actual motivaticn for so doing,

26d

the fact remains that he knew of, and wil-

fully failed to reveal, FRIEDLAND's prior

perjury.

12. As the accompanying memorandum

reveals, MALONEY's reasoning, even as most

charitably construed, was plainly wrong and

constituted sharp practice. The failure to

reveal a key witness' past perjury earlier

in the same case mandates reversal, even

when the perjury relates only to the wit-

ness' credibility, are in any way relevant

to the case. There can be no question that

FRIEDLAND was a, perhaps the, key witness.

There can be no question that MALONEY knew

FRIEDLAND had lied; indeed, MALONEY himself

set up the perjury, by insisting at page 8

of the hearing minutes that FRIEDLAND deny

under oath the existence of the report to

Local 1614. There can be no question that

MALONEY wilfully failed to reveal the

perjury to defense counsel and the Court,

and in fact misled all parties.

27d

13. As the accompanying memorandum of

law indicates, MALONEY's failure to reveal

FRIEDLAND's .prior perjury on a "material mat-

ter," wnich involved an element of the crimes

charged and otherwise bore on the circum-

stances of the case, mandates a reversal.

United States v. Rosner, 516 F.2d 269 (2d

Cir. 1975), cert. denied, 427 U.S. 911 (1976).

There can be no doubt that the perjury was

on a “material matter"; otherwise, it would

have given MALONEY no ground for seeking an

indictment pursuant to then 18 U.S.C. §1621,

or for "controlling" one. United States v.

Rapoport, 545 F.2d 802 (2d Cir. 1976), cert.

denied, 430 U. S. 931 (1977). There can be

no doubt that the existence or not of a re-

port to Local 1614, as well as the report to

Local 810, would have been material to the

case against SILVERMAN. First, even as cor-

rected at page 1192 of the trial transcript

pursuant to ROGGE's exception at page 1182,

the Court's charge at page 1162 would logical-

ly have been taken by the jury to permit them

28d

to conclude from FRIEDLAND's testimony that

both Locals' minute books had been changed,

as the F.B.I. expert had suggested. Secondly,

the Court charged at page 1160 that proof of

fabrication might be taken as proof of a

false defense, and at page 1164 that proof of

fabrication was a "circumstance" that bore on

"the defendant's guilt or innocence" as to all

counts. Thirdly, MALONEY himself argued to

the jury at page 1080 that, "In considering

each count of this indictment you must con-

sider the false records in this case...."

Fourthly, at page 1004 the Court itself

emphasized that the Local 810 report was

"directly relevant to the proof as to whether

the two pages of the minute books in 1965

[Local 810 and Local 1614] were fabricated";

MALONEY made the same argument at pages 1101-

1103. Fifthly, the indictment itself in

counts 1-13 and 18 made no distinction be-

tween Locals 810 and 1614, and count 14

concerned the combined welfare fund of both

29d

Locals; therefore, it was only reasonable for

the jury to have concluded that proof of al-

teration of Local 810's books also demonstrated

alteration of Local 1614's, particularly since

the same typewriter was allegedly involved in

both.

14. FRIEDLAND's perjury on a matter that

was "material" to the prior hearing was "rele-

vant" and "material" at trial as bearing on

the key witness' credibility by showing his

"propensity to disregard the obligation of an

oath." United States v. Provoo, 215 F.2d 53l,

537 (2d Cir. 1954), and United States v.

Tomaiolo, 249 F.2d 683, 689 (2d Cir. 1957), in

effect at the time of the instant trial; Fed.

R. Evidence 401, 404 (a)(3) and 608(b), now in

effect. Evidence of the prior perjury would

have a "tendency to make the existence of any

fact that is of consequence to the deter-

mination of the action [i.e., those facts

testified to by FRIEDLAND at trial] more

probable or less probable than it would be

30d

without the evidence." Fed. R. Evidence

401. MALONEY was therefore under an obli-

gation to reveal that perjury. Napue v.

Illinois, supra, at 269-270; Taylor v.

Lombard, No. 79-2072, slip op. at 35 (2d

Cie. Oot. 2, 1979).

15. Under these circumstances, there

can be no doubt that, pursuant to United

States v. Keogh, 391 F. 2d 138, 142 (2d

Cir. 1968), the defendant is entitled "to

an evidentiary hearing on his position"

and, pursuant to Napue v. Illinois, supra,

Taylor v. Lombard, supra, and other cases

from this Circuit, to a new trial on the

ground that evidence of FRIEDLAND's perjury

on a material issue during a prior hearing

in the very case on trial "could...in any

reasonable likelihood have affected the

judgment of the jury..." and "could well

have resulted in a different verdict."

/s/ Daniel Markewich

DANIEL MARKEWICH

Sworn to before me this

3lst day of October, 1979.

31d

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

— — em ee > 4

UNITED STATES OF AMERICA

-against- 68Cr.762

(ELP)

MILTON SILVERMAN,

Defendant.

— eee ee x

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK ) ;

COUNTY OF NEW YORK) §S°:

DAVID I. SHIVITZ, being duly sworn,

deposes and says:

1. I am senior partner in the law firm

of HALPERIN SHIVITZ, SCHOLER SCHNEIDER &

EISENBERG. I have been a member of the Bar

for almost fifty years.

2. During the years 1968 and 1969, my

predecessor law firm acted as general coun-

sel to Local 810, International Brotherhood

of Teamsters, and Local 1614, International

Brotherhood of Electrical Workers. In 1968

32d

grand jury subpoenas were served on both

Locals calling for production of the "report

of examination of the financial records of

[that Local], submitted by JACOB FRIEDLAND,

as referred in the billing dated May 17,

1967." Copies of these subpoenas are an-

nexed as Exhibits "K" and "L." Initially

no such reports could be located, although I

did move to quash the subpoenas on the

ground of attorney-client privilege. There-

after, by letter, FRIEDLAND advised me and

the Assistant United States Attorney that

he had located a copy of the Local 810 re-

port. A hearing was then ordered before

JUDGE MURPHY.

3. Before receiving a copy of the Local

810 report from FRIEDLAND, I had never seen

such a report either to Local 810 or to

Local 1614. It is to be noted that, con-

trary to the Local 1614 subpoena, FRIEDLAND's

May 17, 1967 billing to "Local 1616" [sic]

does not refer to any report to that Local;

33d

only the billing to Local 810 makes such a

reference. Copies of these bills are an-

nexed as Exhibits "M" and "N." Accordingly,

and after speaking with FRIEDLAND prior to

his testimony, I advised JUDGE MURPHY and

MR. MALONEY exactly what the billings indi-

cated and what FRIEDLAND had told me: that

he had rendered a report to Local 810 but

none to Local 1614. FRIEDLAND thereafter

testified to the same effect under oath.

4. I never learned that such a report

had been rendered to Local 1614, nor did I

discuss this question with anybody. I

learned of MR. SCHER's conference with

MALONEY only on January 23, 1979, during a

conference with DANIEL MARKEWICH, ESQ.

/s/ DAVID I. SHIVITZ

DAVID I. SHIVITZ

Sworn to before me this

3lst day of October, 1979.

CATHERINE A. GAFFNEY

Notary Public, State of New York

No. 31-4612389

Qualified in New York County

Commission Expires March 30, 1981

34d

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ee eee ee cee ee ee ee ee ee ee ee ee ee ee ee eee ee ee ee ee ee x

UNITED STATES OF AMERICA

-against-

MILTON SILVERMAN, 68Cr.762

(ELP)

Defendant

ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee ee x

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK)

COUNTY OF NEW YORK) SS:

KALMAN V. GALLOP, being duly sworn, de-

poses and says:

1. Along with O. JOHN ROGGE, ESQ., I

was counsel to MILTON SILVERMAN at his 1969

trial before this Court. I was present in

the courtroom throughout the trial as

ROGGE's assistant, although I personally

conducted some of the examination of wit-

nesses.

2. On June 19, 1968, I was present

as an interested observer before JUDGE

35d

MURPHY during a hearing at which JACOB

FRIEDLAND and MAX SANCHEZ testified. The

other attorneys present were ANDREW MALONEY,

the Assistant United States Attorney, and

DAVID I. SHIVITZ, ESQ., attorney for Local

810 and Local 1614. Since the minutes of

the hearing reveal that I was present there-

at, I must have heard the testimony of both

witnesses as well as the colloquy, although

I have no present recollection of what

transpired at the hearing. I therefore ob-

viously must have been aware of the fact

that both FRIEDLAND and SHIVITZ denied the

existence of any report by "™RIEDLAND to

Local 1614.

3. I have no recollection of having

shown SILVERMAN the minutes of the hearing.

Nor do I recall ever discussing with SILVER-

MAN the question of whether or not FRIED-

LAND had made a report to Local 1614. I

would have had no reason to question the

representation made by MR. SHAVITZ thai no

36d

such report existed.

4. I do remember to my surprise JOHN

ROGGE, ESQ. on the very day of MR. FRIEDLAND'S

testimony telling me that I was to cross-

examine MR. FRIEDLAND. I had no notion that

FRIEDLAND had allegedly committed perjury at

the June ]9th hearing nor did I have any

knowledge of any alleged conversation between

MALONEY and SCHER as set forth in the af-

fidavit of ROBERT E. SCHER. I am sure that

had I been aware of the facts as set forth

in the SCHER affidavit I would have sought

to demonstrate to the jury the pressure

brought upon FRIEDLAND, and that he should

not now be believed in that he had previous-

ly lied under oath.

5. I have no doubt that these facts

may have influenced the jury in its

deliberation, and if the jury had chosen not

to believe FRIEDLAND the outcome of the

entire trial might have been different.

37a

6. In giving this affidavit I wish to

make clear that I have no personal knowledge

as to whether or not FRIEDLAND did in fact

commit perjury on June 19, 1968.

/s/ KALMAN V. GALLOP

V. GALLOP

Sworn to before me this 18th

day of September, 1979

WILLIAM M. BRODSKY

Notary Public, State of New York

No. 24-02BR4652673

Qualified in Kings County

Commission Expires March 30, 1981

38d

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-against-

68Cr. 762

MILTON SILVERMAN, (ELP)

Defendant.

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK )

COUNTY OF NEW YORK) %%°?

MAX G. SANCHEZ, being duly sworn, de-

poses and says:

1. I am an officer of Local 810, I.B.T.

In 1968 I was a vice president of Local 810

and president of Local 1614, I.B.E.W.

2. Sometime in May of 1968, I was

called before the federal grand jury and

asked whether I was familiar with a report

rendered by JACOB FRIEDLAND to Local 810.

I stated that I was, and indicated that I

39d

had seen copies of such a report but could

not now locate a copy thereof. I was not

asked about any report rendered by FRIEDLAND

to Local 1614. Of course I knew that such a

report had been made to Local 1614, but I

was not volunteering information to a

prosecutor who had repeatedly harassed me

by calling me before the grand jury on five

separate occasions, threatened me with

further grand jury appearances, and branded

me a "target" of his investigation. (Re-

cently, I have learned through the Freedom

of Information Act that, eight months before

my May, 1968 testimony as a "custodian" of

records, the prosecutor had received

authorization to confer immunity upon me

but had never done so, apparently prefer-

ring to "neutralize" me into an enforced

silence that permitted me to talk freely

only with my own attorney, now deceased.)

3. Perhaps a month after my grand

jury testimony, I was again required to

40d

testify as a "custodian" at a hearing before

JUDGE MURPHY. I have recently had the first

opportunity to review the minutes of this

hearing, and I am absolutely certain that I

was outside of the courtroom during DAVID

SFI'’ITZ' remarks to the Court; it was only

upon reading these minutes that I first be-

came aware that SHIVITZ had told JUDGE MURPHY

that no report had been made by FRIEDLAND to

Local 1614. If I had known that SHIVITZ had

so stated, I doubt that I would have public-

ly corrected him but I might have privately

advised him that his statement had been un-

intentionally inaccurate. But, I repeat,

until recently I was not aware of what

SHIVITZ told JUDGE MURPHY, because I was

not there.

4. When the courtroom door was opened

and FRIEDLAND was called in to testify, I

followed him in and overheard his testimony.

I heard him falsely testify that he had

rendered no report to Local 1614, and I knew

41d

that the testimony was false. On the other

hand, I could not for the life of me

comprehend why this was important or what

motive FRIEDLAND had for falsifying, since,

as far as I knew from my grand jury ap-

pearance, MALONEY's interest was solely in

the report given to Local 810.

5. Iwas the next witness, answered

only the questions asked, which concerned

only the report to Local 810 and my grand

jury testimony, and volunteered nothing.

Afterwards, I did not discuss FRIEDLAND's

testimony with SHIVITZ, for, frankly, we

never got along very well as I felt he

lacked the "common touch." I - equally

sure that I did not discuss FRIEDLAND's

hearing testimony with MILTON SILVERMAN,

for I was under strict instructions from

my lawyer, JACQUES SCHIFFER -- SILVERMAN

having already been indicted and further

indictments of all of us "in the wind" --

to talk only to my attorney.

42d

6. I do not recollect whether I did or

did not discuss FRIEDLAND's testimony with

SCHIFFER. I was in the habit of giving him

a written digest of the questions asked of

me during my repeated grand jury appearances,

but I was never asked to render a report as

to anyone else's testimony. Therefore, it

may very well be that I did not discuss

FRIEDLAND's testimony even with SCHIFFER.

In any event, I am absolutely sure that I

did not discuss it with anyone else prior

to SILVERMAN's conviction or, to my recol-

lection, thereafter.

/s/ MAX G. SANCHEZ

MAX G. SANCHEZ

Sworn to before me this

25th day of October, 1979.

43d

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

—_—_— — — eee eee ee xX

UNITED STATES OF AMERICA

-against- 68Cr.762

(ELP)

MI:°,TON SILVERMAN,

Defendant.

—_— —_— eee eee eee ee x

AFFIDAVIT IN SUPPORT OF MOTION

FOR WRIT OF ERROR CORAM NOBIS

STATE OF NEW YORK )

COUNTY OF NEW YORK) §%S°:

MILTON SILVERMAN, being duly sworn, de-

poses and says:

1. I was the defendant in the above-

captioned case. I make this affidavit in

support of my within motion for a writ of

error coram nobis vacating my conviction

and granting me a new trial of my 1969

case.

2. I knew that JACOB FRIEDLAND had

rendered a report on the finances of Local

1614. I was not present at the hearing

44d

where FRIEDLAND gave false testimony in which

he denied having given such a report to Local

1614. The first time I saw the minutes of

that hearing was sometime after my conviction,

in the course of one of my post-trial motions.

By then it was too late to do anything about

FRIEDLAND's perjury, in view of the fact that

I had no evidence that the Government had

known that FRIEDLAND's testimony at the hear-

ing had been false.

3. I feel certain that my own attorneys

did not know that FRIEDLAND's testimony at

the hearing had been false. They never dis-

cussed the hearing minutes with me, nor did

they show me a copy. Obviously, DAVID SHIVITZ

thought that FRIEDLAND was truthful in deny-

ing any report to Local 1614; therefore, he

obviously had not informed my attorneys to

the contrary. As for myself, I did not even

know that the existence of the Local 1614

report was at issue; I thought the only ques-

tion was whether it was legally privileged and

45d

that the Government had ultimately made a

tactical decision to use only the Local 810

report so as not to "gild the lily." I

state unequivocally that it was not until

sometime after my conviction that I first

learned that FRIEDLAND had testified falsely.

At no time prior thereto did I discuss

FRIEDLAND's false testimony with MAX

SANCHEZ, SHIVITZ, my attorneys, FRIEDLAND,

SCHIFFER or anyone else; for I did not know

about it.

4. Nor did I discuss with SHIVITZ or

my attorneys the fact that a Local 1614 re-

port did in fact exist. I regret that no

corroborating affidavit from 0. JOHN ROGGE

himself is included herewith, but he pre-

viously testified at the trial of a fee dis-

pute between his former law firm and myself

"that it was not my habit to make affidavits

for clients; that my clients made their own

affidavits...", a sentiment which he repeat-

ed on several occasions throughout the

46d

transcript of that trial. Therefore, I can

only state that I do not believe that ROGGE

was or could have been aware either that a

Local 1614 report did exist, or that FRIED-

LAND's denial of its existence had been

perjurious, or that ROBERT SCHER had had

the kind of conversation with MR. MALONEY

that SCHER relates in his own affidavit.

The statements of all of the other affiants

lend support to my contentions.

5. There is also inferential support

in the testinony of the fee-dispute trial

for the proposition that ROGGE did not ask

me whether or not there had been a report

to Local 1614. At that trial, ROGGE

testified that it had been my responsibility

to advise my lawyer whether I had an alibi

as to the air-conditioner count. "It's not

counsel's job to ask him whether he has an

alibi." Similarly, ROGGE presumably be-

lieved it was my responsibility to come

forward with the information that a report

47d

had been rendered to Local 1614, when in

fact it would only have been reasonable

for him, having the minutes of FRIEDLAND's

testimony, to have taken the initiative and

asked me if FRIEDLAND was truthful in deny-

ing the existence of the Local 1614 report.

This ROGGE did not do and, since I did not

appreciate the significance of the existence

or not of that report when the Local 810

report had been produced and was available,

I did not volunteer the information which

in fact would have enabled ROGGE and GALLOP

to know that FRIEDLAND had lied. It should,

however, be said in ROGGE's defense that,

like GALLOP, he had every reason to have

believed FRIEDLAND since SHIVITZ' remarks

fully supported FRIEDLAND's own testimony.

6. I am certain that none of my at-

torneys prior to MR. MARKEWICH had learned

from MR. SCHER or anyone else of his con-

versation witii MALONEY a month prior to

trial in which MALONEY demonstrated that he

48d

knew that FRIEDLAND had lied under oath on a

material issue in my case and was offering

him freedom from a perjury indictment in ex-

change for his testimony. Nor did MALONEY

disclose this before or during trial, as he

should have. In fact, MALONEY affirmatively

misled us at trial by stating that FRIEDLAND

was under investigation for obstruction of

justice, when he had in fact already been

threatened, through his attorney, with a

perjury indictment for lies uttered under

oath in the same case on the same issues.

As for myself, I knew nothing of any of this

until MR. MARKEWICH informed me of his con-

versation with SCHER.

7. %I respectfully request a new trial.

I have long since paid my fine, served my

prison term, and become eligible for Union

office once more. I have been in no further

trouble with the law. These facts notwith-

standing, Local 810's organizers are greeted

year after year with anti-Union propaganda

49d

from employers, such as the following from

June, 1979: "MILTON SILVERMAN, the former

president of the Local, spent time in Federal

prison for embezzlement of union funds."

[Italics as in original.] I pray that this

Court will understand that I have no motive

to falsify and thus to invite Government

reprisals, but rather that my sole and

legitimate purpose in bringing this motion

is to clear my name and that of Local 810.

8. Coincidentally, The New York Times

for October 23, 1979, p. B2, cols. 1-2 (an-

nexed hereto as Exhibit "J"), reveals that

JACOB FRIEDLAND has himself at last been

indicted, along with his son, for a Union

kickback scheme dating back to 1975 and

1976 -- the very period during which JUDGE

PALMIERI, without knewledge of FRIEDLAND's

misconduct, was reaffirming the integrity

of his trial testimony in two opinions.

Interestingly, one of the counts of FRIED-

LAND's indictment is for obstruction of

justice by trying to influence a grand jury

50d

witness to lie! Although this is presently

only an accusation, it tends to demonstrate

that FRIEDLAND was in fact fully capable of

perjury as well as obstruction of justice,

both with no aid from me. It is respect-

fully submitted that, under these circum-

stances, it would be appropriate for this

Court, at the hearing on this motion, not

only to consider the new matter raised by

this motion but also to reconsider the ques-

tions raised previously as to whether

FRIEDLAND himself, and on his own initiative,

was responsible for the changes in the

minutes and, additionally, whether influence

was put on FRIEDLAND to help "get" me in

order to protect FRIEDLAND's son, who was

also threatened with indictment at the time

of my trial.

/s/ MILTON SILVERMAN

MILTON SILVERMAN

51d

Sworn to before me this

29th day of October, 1979.

LEAH SCHERER

Notary Public, State of New York

No. 41-4619390

Qualified in Queens County

Commission Expires March 30, 1979.

UNITED STATES DISTRICT COURT

Southern District of New York

New York, N. Y. 10007

Chambers of

EDMUND L. PALMIERI

District Judge

March 17, 1980

Daniel Markewich, Esq.

Markewich, Rosenhaus, Markewich

& Friedman, P.C.

Empire State Building

350 Fifth Avenue

New York, N.Y. 10091

Alan Levine, Esq.

Office of the United States Attorney

Southern District of New York

One St. Andrew's Plaza

New York, N.Y. 10007

Re: United States v. Silverman

Dear Sirs:

I refer to the letter of Mr. Daniel

Markewich dated March 12, 1980, regarding

the court's letter to counsel dated March

5, 1980, in which the court denied permis-

sion to file the supplemental affidavit of

Mr. Scher. The court adheres to the posi-

tion stated in that letter.

No affidavit of Mr. Maloney was sub-

mitted by the Government in these proceed-

ings. However, there is on record an af-

fidavit of Mr. Maloney, submitted to this

court during the 1976 proceedings. The

court was not advised at the time of

argument that this affidavit existed and did

not recollect it until after the azgument.

The court cannot discern any appropriate

basis for the submission of additional papers

at this time and denies Mr. Markewich's re-

quest in all respects.

Very truly yours,

/s/ Edmund L. Palmieri

Edmund L. Palmieri

U.S.D.J.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

eeeeeeeeeeeee eae @ @= xX

MILTON SILVERMAN, :

AFFIDAVIT IN

Petitioner : OPPOSITION

TO MOTION

-vV- :

75 Civ. 4989

UNITED STATES OF AMERICA :

Defendant. :

“ee eeeeeeeeee oe = = @ X

STATE OF NEW YORK )

COUNTY OF NEW YORK s s8s.:

SOUTHERN DISTRICT OF NEW YORK)

ANDREW MALONEY, being duly sworn, de-

poses and says:

1. I am an attorney admitted to prac-

tice in the bar of this Court and ama

partner in the law firm of Maloney, Viviani

and Higgins, 1290 Avenue of the Americas,

New York, New York.

2. I was an Assistant United States

Attorney in the Southern District of New

York from January, 1962 through March,

1972 and was Regional Director of the

Department of Justice, ODALE from March, 1972

through September, 1974.

3. While an Assistant United States At-

torney I was in charge of the prosecution of

United States of America v. Milton Silverman,

68 Cr. 762 and am fully familiar with the

matters herein.

4. As Your Honor might recall from the

atmosphere of the trial, most of the witness-

es called by the government were under the

domination and control of the defendant

Milton Silverman.

5. This was evidenced by the fact that

all Teamster employees of Local 810 had to

first be given immunity before testifying in

the grand jury or at trial.

6. Indeed, it was the government's

strategy in this case to subpoena a number

of the aforesaid employees for each day of

trial without the customary and normal pre-

trial interview and order of witnesses in

order to protect the integrity of the fact

finding process and to avoid undue coercion

on the union's part of any of these persons.

7. Thus, all of the union's employees

subpoenaed for trial were uniquely available

to the defendant Milton Silverman and under

his domination and control.

8. With respect to Jacob Friedland,

Your Honor will recall, he was also uniquely

available to the defendant Milton Silverman

having been retained by the union during the

course of the grand jury investigation.

Furthermore, the government had to request

the Court to grant immunity to Mr. Friedland

in order to secure any testimony concerning

the alteration of union records. Once that

immunity was granted, the government did

not know what in fact his testimony would

be.

9. It is clear from the proceedings

in this case that at some time after

service of the grand jury subpoena for

Local 810 records, but prior to the

production pursuant to that subpoena, Mr.

Friedland was retained by the union to

examine said subpoenaed records. Similarly,

it is clear that during said time a portion

of those records were altered. The specific

change in those records i.e., the authori-

zation of $2,600 loan, benefited no one but

the defendant Milton Silverman.

10. It was the government's position

at the trial and is the government's posi-

tion at this time that to the extent Mr.

Friedland's testimony on this issue was less

than candid, if at all, it benefited only

the defendant Milton Silverman.

WHEREFORE, for all of the foregoing

reasons and those set forth in the accompany-

ing Memorandum of Law, the motion should be

denied.

ANDREW MALONEY

Sworn to before me this

day of January, 1976

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ee ee ee ee ee | x

UNITED STATES OF AMERICA

SUPPLEMENTAL

-against- AFFIDAVIT

MILTON SILVERMAN, 68Cr.762

(ELP)

Defendant.

ee ee ee ee ee x

STATE OF NEW YORK )

COUNTY OF NEW YORK) ss.:

ROBERT E. SCHER, being duly sworn, deposes

and says:

1. I make this supplemental affidavit

at the request of DANIEL MARKEWICH, ESQ., to

respond to certain points which MR. MARKEWICH

advised me were raised at the oral argument

of this motion before JUDGE PALMIERI on Feb-

ruary 27, 1980.

2. The conference which I had with

ANDREW MALONEY on February 3, 1969, was ar-

ranged at my request by appointment, and was

not a Casital meeting or encounter. In my

professional opinion, based on my experience,

it was in no way comparable to a casual

hallway conversation.

3. I cannot look into the workings of

MR. MALONEY's mind, but I can tell this Court

that it was and remains my distinct impress-

ion, conviction and belief that, in talking

with me, MR. MALONEY was expressing more than

a suspicion that MR. FRIEDLAND had committed

perjury at the 1968 hearing. From the words

that MR. MALONEY used, I am certain that he

was telling me that he knew that MR. FRIEDLAND

had lied under oath and that he was in pos-

session of, or was about to be in possession

of, hard evidentiary proof, by way of

informants and/or documents, that MR. FRIEDLAND

had committed perjury.

4. From my experience as an Assistant

United States Attorney in the Southern Dis-

trict, and as a criminal defense attorney, I

am certain that MR. MALONEY would not have

offered to "trade" or to "control" a possible

perjury indictment if he had had merely a

suspicion of MR. FRIEDLAND's misconduct. As

far as I was concerned, and I am sure as far

as MR. MALONEY was concerned, our conference

was a serious negotiating session involving

his best efforts to secure MR. FRIEDLAND's

cooperation in exchange for the promise not

to bring a perjury prosecution against him.

5. As for myself, I took MR. MALONEY's

words, tone and threats so seriously that not

only did I convey them to MR. FRIEDLAND; ad-

ditionally, I made a full and complete memo-

randum of the conversation, which I would not

have done in the case of anything like a

casual hallway encounter or the mere express-

ion of a prosecutor's opinion or suspicion.

6. As the memora:.dum shows, on February

4, 1969, even after I advised MR. MALONEY

that MR. FRIEDLAND would avail himself of the

attorney-client and Fifth Amendment privileges,

MR. MALONEY told me that he expected to call

MR. FRIEDLAND as a Government witness at trial

and would let me know the exact date when MR.

FRIEDLAND's testimony would be required.

/s/ ROBERT E. SCHER

ROBERT E. SCHER

Sworn to before me this

29th day of February, 1980.

FED. R. EV. 404(a) (3):

(a) Character evidence generally. Evi-

dence of a person's character or a trait of

his character is not admissible for the pur-

pose of proving that he acted in conformity

therewith on a particular occasion, except:

(3) Character of witness. Evidence of

the character of a witness, as proviced in

rules 607, 608, and 609.

FED. R. EV. 608 (b):

Evidence of Character and Conduct of Witness

(b) Specific instances of conduct.

Specific instances of the conduct of a wit-

ness, for the purpose of attacking or sup-

porting his credibility, other than con-

viction of crime as provided in rule 609,

may not be proved by extrinsic evidence.

They may, however, in the discretion of

the court, if probative of truthfulness

or untruthfulness, be inquired into on

cross-examination of the witness (1)

concerning his character for truthfulness

or untruthfulness, or (2) concerning the

character for truthfulness or untruthful-

ness of another witness as to which char-

acter the witness being cross-examined

has testified.

The giving of testimony, whether by

an accused or by any other witness, does

not operate as a waiver of his privilege

against self-incrimination when examined

with respect to matters which relate only

to credibility.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.