Appendix — Zane v. United States (Nos. 74-824, 74-913)

la

APPENDIX

Opinion By the United States Court of Appeals

For the Second Circuit

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Nos. 110, 114—September Term, 1974.

(Argued October 1, 1974 Decided November 4, 1974.)

Docket Nos. 74-1678, 74-1839

a

>

~~ =

Cr

Unirep States oF AMERICA,

Plaintiff-Appellee,

—against—

Pur Zane, JERoME E. Sttverman, and

Rosert S. Persxy,

Defendants-A ppellants.

Before:

Mepina, ANDERSON and MansFIELD,

Circuit Judges.

ws

—_—v,r

Appeal from an order of the United States District Court

for the Southern District of New York, Inzer B. Wyatt,

Judge.

Philip Zane, Jerome E. Silverman and Robert S. Persky

appeal from an order denying a motion for a new trial

on the ground of newly discevered evidence.

Affirmed.

é-t

—_or

OOS APR ae

2a

Appendix

James E. Nestanp, Assistant United States At-

torney, New York, N.Y., (Paul J. Curran,

United States Attorney for the Southern

District of New York, and John D. Gordan

III, Assistant United States Attorney, New

York, N.Y., on the brief), for Plaintiff-

Appellee.

Sanpor Franke, New York, N.Y., (Louis Ben-

der, New York, N.Y., on the brief), for

Defendants-Appellants Philip Zane and

Jerome E, Silverman.

Joun Locan O’Donnett, New York, N.Y., ©

(Charles M. McCaghey, Stephen Schles-

singer and Olwine, Connelly, Chase, O’Don-

nell & Weyher, New York, N.Y., on the

brief), for Defendant-Appellant Robert S.

Persky.

Meprina, Circuit Judge:

On June 13, 1973 Philip Zane, Jerome KE. Silverman and

Robert S. Persky, two accountants and a lawyer, were con-

victed after a five-week trial to Judge Wyatt and a jury

on one count of a multi-count indictment for filing a false

Form 10K Annual Report for Microthermal Applications,

Inc. with the SEC. We affirmed 495 F.2d 683, cert. denied,

43 U.S.L. Week 3239 (U.S. October 22, 1974). One of the

defendants, Akiyoshi Yamada, pleaded guilty to a one-

count indictment charging conspiracy to file the false re-

port and he co-operated with the government. He gave

extensive testimony implicating Zane, Silverman and

Persky not only on the charge of which they were found

PLEL ATR MER LET I NG ONS

Dee TED

3a

Appendiz

guilty but on various other counts on which they were

acquitted. Less than four weeks after the conviction of

Zane, Silverman and Persky, Yamada came before Judge

Cooper on a motion to reduce the sentence imposed on him

for the crime to which he had pleaded guilty. In support of

this motion five letters purportedly written by persons ac-

tive in community affairs were submitted by Yamada to

Judge Cooper. These letters, which testified to Yamada’s

good character and praised his work with drug addicts,

were written by Yamada himself to influence Judge Cooper.

Claiming that proof that Yamada had forged these letters

and that he had engaged in such fraudulent and criminal

conduct constituted newly discovered evidence, Zane, Sil-

verman and Persky made a motion for a new trial, pursuant

to Rule 33, Fed. R. Crim. P. Judge Wyatt denied the motion

from the bench remarking that Yamada’s credibility had

been fully explored at the trial, that the sending of the

letters was merely cumulative evidence by way of impeach-

ment and that such proof had no relevance to the issue of

the filing of the false report with the SEC. He also found

there was no probability that on a new trial with the benefit

of the evidence concerning the fraudulent letters a new

jury would reach a different conclusion with respect to

the guilt of these appellants. This appeal is from the order

of Judge Wyatt denying the motion for a new trial.

It requires no more than a brief recital of the law in this

Circuit governing the function of the trial judge and that

of this Court in connection with Rule 33 motions for a

new trial on alleged newly discovered evidence to dispose

of this appeal. In the exercise of his discretion the trial

judge must determine whether there is a showing: (1)

that the evidence could not with due diligence have been

TOA EPG ae

4a

Appendix

discovered until after the trial; (2) that the evidence is

material to the factual issues at the trial and not merely

cumulative and impeaching; and (3) that the evidence

would probably produce a different result in the event of

a new trial. United States v. Birrell, 482 F.2d 890, 892 (2d

Cir. 1973); United States v. DeSapio, 456 F.2d 644, 647

(2d Cir.), cert. denied, 406 U.S. 933 (1972); United States

v. Polisi, 416 F.2d 573, 576-77 (2d Cir. 1969). Less exacting

standards, not relevant here, are required in cases involv-

ing prosecutorial misconduct or negligence. See, United

States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. denied,

411 U.S. 982 (1973). The function of the Court of Appeals

is to decide whether the trial judge has applied these

criteria and whether his finding that the application of

these criteria required a denial of the motion is or is not

clearly erroneous. It is not our function to speculate on

the possibility that a jury on a new trial might acquit the

defendants. As we conclude that Judge Wyatt applied the

proper criteria and that there is no tenable basis for hold-

ing that Judge Wyatt abused his discretion, or that his

finding in applying the criteria was clearly erroneous, we

affirm the order appealed from. It is especially important

that this separate consideration of the respective functions

of the trial judge and of an appellate court be made in

Rule 33 cases involving long complicated trials.

It is obvious that the evidence of the forgery and send-

ing of the letters was cumulative on the issue of credibility

and that it had no bearing on the issue of whether or not

appellants were guilty of filing the false report with the

SEC. Yamada had a lengthy history of involvement in

fraudulent securities schemes. Prior to the trial of the

appellants, Yamada pleaded guilty to three one-count indict-

ments, one of which concerned the conspiracy to file a false

PEE I ENE eS ae 1 Sod

5a

Appendia

annual report for Microthermal. In return for co-operation

with the government in the prosecution of the appellants,

it was understood that the government would not proceed

on other criminal offenses committed by Yamada, and also

that the government would advise the court of his co-opera-

tion at the time of sentencing. At the trial, Yamada was

subjected to thorough cross-examination. The basis of

Yamada’s co-operation, the criminal charges, and his nu-

merous fraudulent securities schemes were brought out

to impeach his credibility. In addition, Yamada testified

to destroying documents and giving perjurious testimony

before the SEC in the course of its investigation into

Microthermal.

In support of his finding that the evidence of the forged

letters would probably not result in any different decision

by the jury on a new trial, Judge Wyatt referred to his

recollection of the proofs and his instructions to the jury.

We find no reason to disturb a finding based upon such

reasoning. We are not persuaded that a new jury would

decide the case differently if it knew that Yamada’s claim

at the first trial that he had reformed and turned over a

new leaf was false. Indeed, at the time of the first trial

he may have thought he had reformed.

Nevertheless, as we understand their arguments, appel-

lants would have us develop some new law because of

what they call the special circumstances of this case.

Again and again appellants would have us reverse the

decision below because Yamada’s testimony at the trial

and his forgery of the letters were supposed to be part

and parcel of a deep-seated determination to resort to

any means to keep out of jail. This is indeed novel doc-

trine and it would result in new trials whenever after a

criminal trial the conduct of a defendant-turned-govern-

ment-witness indicated a desire to escape the toils of

6a

Appendia

justice by any form of lying or skulduggery that could

be made to appear similar to the alleged giving of false

testimony at the trial in the hope of obtaining considera-

tion for his co-operation with the prosecution.

Mesarosh v. United States, 352 U.S. 1 (1956), gives no

support to the contentions of appellants here. It did not

involve a defense motion for a new trial but rather a sui

generis exercise by the Supreme Court of its supervisory

jurisdiction at the instance of representation submitted

by the Solicitor General.

The appellants place great emphasis on the fact that

the forged and fictitious letters were submitted shortly

after the conclusion of the trial resulting in the convic-

tion of the appellants. This fact, however, does not alter

the cumulative and impeaching character of these dis-

closures, nor does it provide an appropriate basis to dis-

tinguish this situation from other cases involving Rule 33

motions.

Affirmed.

Oral Opinion of Judge Wyatt

. he had not yet been a man reformed, but none of that

spoke to his credibility subsequent to making his deal with

the SEC, and I only mention that to your Honor as an

illustration of why, in my opinion, this is not cumulative

impeaching evidence.

The Court: It seems as if we are back to almost a year

ago because I can remember Mr. Frankel and Mr. O’Donnell

making arguments which were terribly persuasive in mak-

ing one to decide in accordance with their arguments, but

it frequently turned out that I didn’t feel able to do so.

I have given this a good deal of consideration and I

have read all the papers even the pleadings, and including

. pyar. , Lave gh

REP A OLE TALE NILE IE LLM AEA LA IN ssiciaimtemaeiatitatinia

a wae we = -

Ta

Appendia — fac

the papers submitted this afternoon. However, I do not

think I can grant this motion.

There are two motions, but they raise the same point,

and that is that the admitted fraud of Yamata on Judge

Cooper after his testimony at the trial in our case requires

a new trial. But, as I have said a moment ago, the situation

here is that Yamata, of course, was not the only witness

for the government.

| As I have ample cause to remember—but I have not re-

iio read the transcript—his credibility was attacked and

severely attacked and ably attacked, as was perfectly

proper, and he was shown to be an accomplice, an admitted

perjurer, and guilty of criminal offenses, and counsel for

the defendants are right in saying that as of the time of

trial he was saying in substance that he had reformed, and

was then telling the truth, where shortly thereafter, he was

back committing, in substance, perjury. I understand. Your

Points are well made.

But I still believe that since his credibility, as the Court

of Appeals said, was thoroughly explored: the jury had

before it the various felony charges that had been made

against Yamata, the pleas of guilty, his perjury before | |

the SEC, his hopes of leniency, and they were dealt with |

_ not only in his testimony but in summation, and I remember |

in my charge I gave—I have to say “standard” instructions,

but I do have a usual formulation as, to accomplice testi-

mony and to testimony of those with prior criminal con-

victions, and I did call to the attention of the jury the fact

that Yamata was an accomplice, that he had criminal

records.

I know that I said also that he was an admitted perjurer ;

I think I may have done that at the request of one or more

of the defendants. I told the jury that the testimony of

| F

. /

. ime AL RET ICI

= ;

Lene ee Oe es ee eee y Sei Fa oe ee eo et eee vee be ll diel

/

8a

Appendiz

accomplices and of those with criminal convictions and of

those who admitted perjury should be viewed with great

caution and scrutinized carefully, so I certainly impressed

it on the jury what they had to do in weighing Yamata’s

testimony. |

Therefore, it seems to me despite. able representations

_ this afternoon, what he did before Judge Cooper, which

seems not only fraudulent but foolish, but still, whatever

it is, it seems to me to be cumulative on impeaching his

credibility.

As I indicated, I have studied Mesarosh and certainly

counsel for the defendants should have brought it to my

attention. I do not think I knew the case before.

However, accepting the opinion of the Court, as I must,

despite the three dissents, I must conclude that this is one

of those instances to which the Court refers at 352 U.S. 9

where untruthful statements by a government witness

subsequent to the trial are offered in support of a motion

for a new trial as newly discovered evidence affecting his

credibility at trial, and then, as I am sure you gentlemen

have already read, the Court says, “such an allegation by

the defense ordinarily will not support a motion for a new

trial because new evidence which is merely cumulative for

impeaching is not, according to the often repeated state-

ment of the Courts, an adequate basis a the grant of a

new trial.” |

Therefore, I feel obliged to deny these motions, and since

my statement of my reasons have been made 4 part of the

stenographic transcript, I will simply, in due course, en-

dorse the motion papers: motion denied for reasons stated

in open Court.

Thank you very much, gentlemen, for coming.

TUPI BIAS GIO INI ¢

POR LEO LESB VENI PB GEOR eg Og AEROS —

9a

Appendia

Government Sentencing Memorandum

UNITED STATES DISTRICT COURT

SourHern District or New York

74 Cr. 100

==

— or

Unitep States oF AMERICA

—V,—

Axtyosu1 YAMADA,

Defendant.

— or

The Government respectfully submits this memorandum

to set forth the facts which would have been established

at the trial of the defendant Akiyoshi Yamada and to bring

to the attention of the Court certain information which

w believe to bear upon the sentence to be imposed by the

Court. Yamada has entered a plea of guilty to the con-

spiracy count and five substantive counts of the indictment

charging him with knowingly submitting false and fraudu-

lent letters to the Court in violation of Title 18, United

States Code, Section 1001. It is our position thai these

crimes are matters of the utmost gravity which, in the

factual context of this case require a stern response by

the Court.

1. Facts.

In May of 1973, Akiyoshi Yamada entered guilty pleas

to conspiracy charges in each of three separate fraud cases

then pending against him in this District. The pleas were

> ete ee |

10a

Appendiz

entered under an agreement by which Yamada would make

himself available to the Government as a witness concern-

ing all matters in which he had in any way participated

that he would cooperate completely with the Government

in all such cases, would testify truthfully as necessary at

any trial, grand jury, S.E.C. or other proceeding, and that

he would refrain from any further criminal activity. In

exchange for this promise of cooperation, the Government

agreed not to proceed against Yamada in any other pending

case or investigation involving him. The precise details

of Yamada’s possible criminal exposure are set forth in

Appendix A hereto, a letter to the United States Attorney’s

Office from the S.E.C. attorney in charge of Yamada-related

cases.

On June 26, 1973, Yamada appeared for sentence before

the Honorable Irving Ben Cooper, who imposed a sentence

of two years’ imprisonment and a consecutive five-year

term of probation on the three separate convictions and

directed Yamada to surrender on or before August 1, 1973.

We attach as Appendix B hereto the minutes of the Court’s

imposition of sentence.

The minutes of such sentence reveal the motive which

prompted the commission of the crimes presently before

the Court. In sentencing Yamada, Judge Cooper com-

mented on the absence of any apparent charitable concern

or activity in Yamada’s record. He stated:

“Yesterday I sentenced two human beings, brothers.

No prior record, one a school teacher. They both col-

lapsed when in connection with a financial enterprise

they had launched, it began to get into difficulty, and

in order to extricate themselves they conceived of some

half baked notion which they thought would help them

OOS NR oe a thead pay See PIP e. 7o

lla

Appendia

out of their difficulties. What they did was an isolated

instance or two.

As a fact finder—and I am pretty good at that—I

had to declare that contrition had set in, It was deep;

it was of a quality that was convincing to this Judge.

They had shaken themselves up so badly that the tor-

ture which was inflicted over what had happened to

them was the greatest punishment that could have

possibly taken place. I am not prepared to say, by any

means, that that is true here.

But there are assets that a Judge must consider.

You pled guilty. Oh, I have been around long enough

to know that in the long run you undoubtedly would

have been found guilty. This is a resourceful govern-

mental agency. But you did plead guiliy. You have

no prior record. But there are not testimonials such

as was present yesterday of moral deportment over a

period of time that came to stand beside those who

had to face sentence yesterday. You haven’t got them.

They are not here. I can’t look to a Yamada who did

things of auality, who lent aid to those who were suffer-

ing; who dedicated a period of his time to uplift the

neglected, the tormented, Absent. Everywhere I turn

you are flayed. Every document I pick up denounces

you. These valuable assets that come to a man in his f

hour of need are not here. They are moral, ethical

values, that have a great deal to do with a Judge’s

concern as to what has happened to the human being »

sentenced,” (T. 17-19) (Emphasis added.)

t

:

b

=

:

g

2

{

E

%

%

&

%

¥

x

BWP re

Immediately after the imposition of sentence, Yamada

commenced the fraud which is the subject of the instant

charge. Having never “lent aid to those who were suffer-

MES RELIED LEE LEAL ADEA I ES SE EPL PAB IED Sele

12a

Appendix

ing,” he decided to concoct evidence of such charity in

order to persuade Judge Cooper to reduce the two-year

sentence imposed on June 25, 1973."

In early July, 1973 he caused his attorney to file a Rule

35 motion before Judge Cooper.** Shortly thereafter, he

commenced to manufacture letters purporting to detail a

longstanding involvement in rehabilitating narcotics ad-

dicts. Through his secretary, Alida Bernstein, Yamada

located one Paul Rogers, who was then employed in a

Manhattan methadone clinic. Through MyYss Bernstein,

Yamada paid Rogers a sum of money (approximately

$300) to fabricate two letters on stationery of the clinic

describing Yamada’s fictitious efforts to assist addicts to

find employment, to stay away from narcotics, and so forth.

The Government is in possession of the stenographie notes

dictated by Yamada to Miss Bernstein which formed the

basis for the letters, each of which is set forth in the

indictment and reproduced herewith as Appendix C. We

need hardly add that Yamada had never involved himself

in any such charitable activity, nor had he ever met either

of the purported signers of the two letters.

* Only a technicality prevented this case from being prosecuted

as a violation of Yamada’s probation. At the conclusion of the

June 26, 1973 minutes of sentence, the Court explicitly stated that

the five-year term of probation imposed on Yamada with respect

to one of the three conspiracy convictions was to run consecutively

to the term of imprisonment. Thus, the crimes charged in the

instant indictment, which were committed before Yamada’s sur-

ge fell before the commencement of the probationary term.

(T. 32)

** There is no evidence whatsoever that Yamada’s counsel knew

of his fraudulent scheme. To the contrary, the affidavits in sup-

port of the Rule 35 motion show that defense counsel was totally

‘ unaware of the fraudulent letters to Judge Cooper and of Yamada’s

‘false claim that he had long been involved in rehabilitating nar-

‘eoties addicts.

PE MDE IT OE oe a

13a

Appendia

The letters betray a deliberate effort to fabricate in-

formation which Yamada knew would commend themselves

to Judge Cooper’s attention. The first letter, for example,

purportedly written by the physician-director of the clinic,

states, “I find it inconceivable that a man who has devoted

a tremendous amount of time over the past two years to

interview our patients and help secure employment for

many should be sentenced for violations which were com-

mitted before entering a new field of business and social

outlook.” Such language appears almost a direct response

to an observation of the prosecutor at the time of sentence:

“having recently re-read your Honor’s opinion in the

Benjamin Haggett motion for reduction of sentence I know

that your Honor is of the very strong opinion that it is as

much the conduct of the defendant after the crimes have

been committed as it is his conduct before which must be

taken into account by a sentencing judge.” (T. 7)

Yamada also composed the fictitious letter contained in

Count Three. The purported “Flushing Center for Drug

Counseling and Rehabilitation” did not exist, and Yamada

caused fake stationery to be printed especially for the

occasion, to lend an appearance of legitimacy to the letter.

The address and telephone number appearing on such

stationery are those of Yamada’s then-chauffeur, a young,

uneducated man named Gerald Williams. Williams has

testified before the Grand Jury—and was prepared to

testify at trial—that Yamada directed him to sign and send

the letter as the “Community Director” of the non-existent

drug agency.

With respect to the letter set forth in Count Four,

Williams testified that Yamada had drafted the letter and

given it to his chauffeur with instructions that he should

have one of “his people” copy it in her own hand and that

Pee ey Ae

ee, ORAL een

14a

Appendix

he should forward the scrawled copy to Judge Cooper.

Accordingly, Williams’s wife, a woman of little education

and of no real comprehension of what she was being asked

to do, wrote the letter using Yamada’s text, and Williams

mailed it. The letter is designed quite clearly to convince

Judge Cooper in the most dramatic terms that he had

simply been unaware of Yamada’s considerable charity

toward the underprivileged.

The final letter set forth in the indictment was drafted

jointly by Yamada and Edward Loughran, Jr., who, at

that thime was a co-venturer with Yamada in an enter-

tainment booking enterprise called Phoenix Entertainment

Associates, Inc. Contrary to the implication contained in

the letter—and to Yamada’s representation to the Court

at the time of his plea of guilty to this indictment—

Phoenix was essentially a two-man operation run jointly

by Yamada and Loughran and consisting of a secretary

(Miss Bernstein) and a chauffeur (Mr. Williams). At-

tached to the letter was a bogus “copy” of a letter to

Yamada’s probation officer, a letter which was never

received by the probation department. Both letters are

included in Appendix C hereto. Both take pains to take the

probation officer to task for failing to investigate Yamada’s

background. The Loughran letter, for example, states

“Over the past few months I have made numerous tele-

phone calls, was unable to reach [the probation officer]

and never even got a message that he had returned a eall.

I find it strange that a probation officer would make no

effort to contact a client’s employer.” The statement was

a complete fabrication, designed to afford the Court a

plausible explanation for a failure of the probation depart-

ment to account for Yamada’s newly-discovered charitable

good works.

FATA TAPED LI OEE LIEBE LIE OEE Re

lia

Appendix

In addition to the letters set forth in the indictment, the

Government would have proven that Yamada solicited

additional fake letters from Miss Bernstein and her finance

which were shown to Yamada and then destroyed before

being mailed. Finally, we would have offered Miss Bern-

stein’s stenographiec notes of a letter purportedly written

by Loughran’s father—who was at that time the Commis-

sioner of Immigration of the Immigration and Naturaliza-

tion Service—a letter which was dictated by Yamada but

never sent.

2. Yamada is entitled to no consideration whatsoever

for any previous or future cooperation with the

Government.

|

E

8

f

&

E

:

E

[

We stress at the outset that, upon this sentence, Yamada

:s entitled to no consideration whatsoever for any previcus

or future cooperation with the Government. Such co-

operation was the basis for limiting his substantia: ex-

posure to prosecution for other securities frauds and, as

the sentencing minutes reveal, was taken into subs cantial

consideration by Judge Cooper on June 26, 1973. Indeed,

such cooperation was, in the eyes of the Court, virtually

the only consideration which mitigated Yamada’s record

of almost unremitting fraud. (See Appendix B herein).

Moreover, the very crimes which are the subject of the

instant charges demonstrate that Yamada violated his

agreement with the Government almost as soon as he had

made it. Yamada was clearly advised that the commission

of any further crimes would subject him to vigorous

prosecution by the Government and would constitute a

breach of the agreement. We are frank to advise the Court

that we have considered prosecuting this defendant for his

various unprosecuted frauds of which we have knowledge ;

PI PRT Ae

RS PRAIA PANY OAR NEE EL Y HTN

oe ee . -_ : .

| PR ID PEEP IEEE LEED ELIE IEP IIE LON SIDES ICEL BE EIL ELISE SD POE NLD EE IE GIO GNSLE AOE

16a

Appendiz

we have determined, however, that sufficient ambiguity

exists as to whether Yamada understood that such conse-

quences could flow from future criminal acts that we will

not proceed on such cases. Nevertheless, it is clear that

Yamada breached his agreement with the Government by

committing the crimes presently before the Court. More-

over, the fraud perpetrated by Yamada has substantially

vitiated his usefulness as a Government witness in any

future prosecutions, thus rendering such cooperation far

less significant than was anticipated by Judge Cooper at

the time of the sentence imposed last year.* Finally, we

submit that the fraud perpetrated by Yamada upon the

Court represents the antithesis of cooperation or of

genuine contrition for his past fraudulent activities.

3. Yamada’s fraudulent scheme was carefully contrived

effort to obstruct justice.

The fraud attempted by Yamada is characterized by his

counsel as having ben motivated “out of pure fear” by a

man “overcome by emotion.” (Yamada’s sentencing memo-

randum, p. 6). We respectfully submit that the fraud set

forth above was anything but a frenzied, last-minute act

of panic. It was a calculated, well-thought out plan to

deceive the Court. As we have shown above, it was

designed to appeal to those concerns uppermost in the

* Indeed, in the one trial where Yamada has testified as a Gov-

ernment witness, defendants have recently moved for a new trial

on the sole basis that Yamada’s testimony has been shown to be

unreliable in light of the-subsequently-committed crimes alleged in

this indictment. While we do not believe that this claim has any

merit—and while we have no evidence that Yamada perjured him-

self in that case,—the motion illustrates the sort of problems which

we may readily anticipate in any future case in which Yamada

testifies.

17a

Appendia

mind of Judge Cooper. Moreover, the letters are well-

organized, contain every appearance of genuineness and, in

short, were clearly carefully aimed at deceiving the Court.

Standing by itself, the fraud attempted in this case

amounts quite clearly to a serious effort to obstruct justice

by tampering with the Court’s sacred obligation to impose

sentence. Yamada’s counsel appears to suggest the sub-

mission of the false letters amounted to the commission of

little more than misdemeanor-type offenses (Sentencing

Memorandum, p. 7). With respect, we urge that the

offenses committed by this defendant strike at the very

heart of ‘the criminal justice system and must not be

tolerated as mere misdemeanors. Every judge who wrestles

with his conscience to impose a just sentence must rely

almost exclusively upon information provided him by

others. Such information is as essential to the sentencing

process as testimony under oath is to any court proceeding.

Abuse of this system, especially under the aggravated

circumstances presented here, amounts to a serious obstruc-

tion of justice and should be punished as such.

4. Yamada_thoughtlessly drew innocent individuals into

criminal activity.

The extraordinary irony of the fraud set forth above is

that this defendant, in asserting to Judge Cooper that he

was reforming narcotics addicts, was actually drawing

various individuals into the commission of serious crimes.

Our interviews of Miss Bernstein, Mr. Williams and Mrs.

Williams convince us that, although they knew that it was

wrong to submit forgeries to the Court, they did so because

Yamada had prevailed upon them to help him. Each of

these individuals, to our knowledge, had no prior involve-

18a

Appendix

ment with the law, yet each could well have suffered totally

unforeseen, serious consequences from such actions. More-

over, the physician whose name was forged to the first let-

ter and the probation officer who was unjustly maligned

in several of the letters were also victimized by the fraud.

In short, Yamada rather thoughtlessly drew others into

this matter at precisely the time when he was seeking to

demonstrate to Judge Cooper that he possessed a special

kind of thoughtfulness for others.

5. In the context of Yamada’s pose of contrition his

fraud on the Court must be viewed as an act of

extraordinary hypocrisy.

In the context in which this case arises, the fraud com-

mitted by Yamada is especially sevious. By pleading guilty

and agreeing to testify as a Covernment witness to his

manifold fraudulent activities, Yamada assumed a pose of

contrition concerning such frauds which, it is now clear,

was merely a device to reduce or, hopefully, eliminate im-

prisonment for such crimes.* In submitting the fraudulent

letters to Judge Cooper, Yamada demonstrated convine-

ingly that he fully expected to manipulate the Court, just

as he had previously manipulated the victims of his finan-

* Prior to his sentence by Judge Cooper, Yamada stated to the

. Court: “Your Honor, after great reflection and introspection I

have realized the harm, the devastating effect of my action during

1969, 1970 and 1971; the effect it has had on not only on myself

but on my family, both here and in Japan, and I realized then, as

I do now, that to make amends I would have to cooperate fully so

that these matters can come to some resolution. It is in this spirit

that I have devoted as much of my time as requested to the various

Government agencies in the past and I intend to do so in the

future.” (Appendiv B, pp. 12-13) such statement must be viewed

as an insincere expression of contrition and a cynical effort to par-

lay cooperation into a suspended sentence.

ak a ee

19

Appendiz

cial frauds. Moreover, the letters themselves betray a

condescension and a cynicism exactly the opposite of the

humane qualities which Yamada sought to present to the

Court. In any defendant, such conduct is inexcusable. With

respect to a defendant who holds himself out as a contrite

cooperating witness, it is especially intolerable. In short,

Yamada has demonstrated a cynical disregard for the ad-

ministration of justice and an attitude that this Court is

as vulnerable to deception as any victim of a securities

fraud. Such an attitude must not be tolerated.

CONCLUSION

In writing the above, we are mindful of the fact that this

Court is especially sensitive to the sentencing process as a

focal point of the criminal justice system. The case before

the Court presents a cynical abuse of such system by an

individual pretending to make his peace with society. For

all of the reasons set forth above, the cries to which Aki-

yoshi Yamada has pleaded guilty should be punished by a

substantial term of imprisonment consecutive to the term

which the defendant is presently serving.

Respectfully submitted,

Paut J. Curran

United States Attorney for the

Southern District of New York

Attorney for the United States

of America

Henry Pvurzen, Il

Assistant United States Attorney

Of Counsel

on EMETF Po ORLA ONE ESE AL AL EY EDEL

, ie te a .

ANAL RITTER OM ET ON et eee et ey ee Le ee .

EY oon A hae ati

ey LRT I LAST HY Ge Ae