ALVIN K. HELLERSTEIN, District Judge.
Miriam Moskowitz petitions for a writ of error coram nobis to overturn her 1950 jury conviction for conspiracy to obstruct justice. Moskowitz's prosecution arose from an investigation into Soviet nuclear espionage into the Manhattan Project and related activities by which the United
Miriam Moskowitz's conviction relates to a series of events that occurred during a 1947 FBI investigation into Soviet espionage activities. Harry Gold, a chemist, had been secretly couriering information about the Manhattan Project from Klaus Fuchs, a British theoretical physicist, to Soviet agents. On May 29, 1947, FBI agents interviewed Gold and his colleague Abraham Brothman, a chemical engineer, as part of their espionage investigation. That night, after the interviews, Gold and Brothman met and considered how to reconcile inconsistencies in their stories. Moskowitz, who worked as Brothman's secretary and was romantically involved with him as well, was present at these conversations, according to Gold. Allen Decl. Ex. 1, at 650-51 (Transcript of Gold Testimony) ("Transcript"). Weeks later, Brothman and Gold were subpoenaed to testify before the investigating grand jury. According to Gold, Moskowitz helped persuade Brothman to stick to the original, untruthful story he gave the FBI during his grand jury testimony. Id. at 669-70 ("Miriam told me that she ... had succeeded in persuading Abe from his desire to ... change the original story which he had given the agents of the FBI ..."). Gold also described other conversations about lying to law enforcement during which Moskowitz was present or provided encouragement.
Harry Gold ultimately pled guilty to violating the Espionage Act of 1917 and was sentenced to 30 years imprisonment, of which he served 14. Brothman and Moskowitz were each charged with conspiracy to obstruct justice in violation of 18 U.S.C. § 241 (1946 ed.).
In a separate proceeding in 2008, I unsealed the minutes of the grand jury convened in the Brothman/Markowitz investigation, finding that they had substantial historical importance. In re National Security Archive, Case No. 08-cv-6599, 2008 WL 8985358 (S.D.N.Y. Aug. 26, 2008). Moskowitz now argues that three statements in particular also have relevance to her case. First, in a statement of July 11, 1950, Gold described the events of May 29, 1947. Gold, Brothman and Moskowitz had returned to the laboratory around 10:30 pm from their dinner at a Chinese restaurant. Gold reportedly told the FBI that, "[w]hen Moskowitz went out on an errand,
Moskowitz contends that Gold's statements contradict the testimony he delivered at her trial. She argues that she could have used the contradictory statements to impeach Gold at trial and that the Government's failure to disclose the allegedly contradictory statements to the defense was unconstitutional. She filed this coram nobis petition on August 12, 2014 to overturn her conviction.
A coram nobis petition is a collateral proceeding through which a court may correct fundamental errors in a prior final judgment.
Like habeas relief, coram nobis relief lies in tension with the public's interest in finality of judgment. See Foont v. United States, 93 F.3d 76, 80 (2d Cir.1996). Unlike with habeas corpus, however, a coram nobis petitioner is not in custody. The harm to the petitioner is therefore much less and, accordingly, courts are more reluctant to grant relief. See, e.g., United States v. Osser, 864 F.2d 1056, 1059 (3d Cir.1988) ("The interest in finality of
The Supreme Court has explained that coram nobis is an "extraordinary remedy." United States v. Morgan, 346 U.S. 502, 511, 74 S.Ct. 247, 98 L.Ed. 248 (1954). It "is not a substitute for appeal, and relief under the writ is strictly limited to those cases in which errors ... of the most fundamental character have rendered the proceeding itself irregular and invalid." Foont, 93 F.3d at 78 (internal quotations omitted). In the Second Circuit, a successful coram nobis petitioner must meet three criteria. First, the petitioner must show that "there are circumstances compelling such action to achieve justice." Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998). She must also show that "sound reasons exist for failure to seek appropriate earlier relief" and, finally, that she "continues to suffer legal consequences from [her] conviction that may be remedied by granting of the writ." Id. (internal citations omitted).
Petitioner has failed to demonstrate that her conviction should be overturned. First, Gold's statements to the FBI are not "irreconcilable" with the testimony he gave at Moskowitz's trial, as Petitioner alleges. Gold's comment that he never discussed his espionage activity in Moskowitz's presence, when he could avoid it, is not the same as saying that he never discussed it in her presence. The former contains an important qualifier, but Petitioner's brief repeatedly contorts Gold's statement to say the latter. The statement in context merely establishes Gold's distrust of Moskowitz, and the sentences surrounding it indicate that Moskowitz was indeed aware of Gold's espionage activities.
That leaves Gold's statement that he told Brothman "practically nothing in [Moskowitz's] presence" between dinner at Sunny's of Chinatown and Moskowitz's coffee run on the night of May 29, 1947, as
In re Alger Hiss, 542 F.Supp. 973, 989 (S.D.N.Y.1982) (internal quotations and citations omitted). Gold's statements would doubtless have been useful to a cross-examiner, but the Government's failure to produce the statements to the defense 13 years before Brady v. Maryland was not an error at the time, let alone one so fundamental that it rendered the proceeding irregular.
Even if, arguendo, the Government erred in withholding Gold's statements from the defense, it did not make any difference to the outcome of Moskowitz's trial. This is because the conversation on May 29, 1947 between the time the trio ate dinner and the time Moskowitz left to buy coffee was just one of many inculpating Moskowitz in the conspiracy to obstruct justice. Gold testified that Moskowitz broke up an argument between Brothman and Gold on the way to the train station the following morning, saying that "this was no time for the two of [them] to fight because a falling out ... was exactly what the federal authorities wanted." Transcript at 656-57. He testified that Moskowitz was concerned in July, 1947 that Brothman was considering changing his story for the grand jury and said "that she was going to try and get him to stick to the original story." Id. at 667. Several
Moskowitz has also not provided adequate explanation to excuse her failure to seek an appropriate remedy earlier. Moskowitz points to the fact that the grand jury testimony was unsealed in 2008, but this still does not justify her failure to bring this petition for more than five years after that. Five years may appear trivial against the backdrop of the six elapsed decades since her conviction, but it is nevertheless a long delay in its own right. Courts in this Circuit have rejected petitions for delays shorter than Petitioner's. See Foont v. United States, 93 F.3d 76 (2d Cir.1996) (five years); Nordahl v. United States, 425 Fed.Appx. 35 (2d Cir.2011) (unpublished opinion) (three and a half years); Mastrogiacomo v. United States, No. 90-cr-565 (KTD), 2001 WL 799741, at *2 (S.D.N.Y. July 16, 2001) (three years).
Finally, Petitioner has also failed to satisfy the third prong of the test for coram nobis relief: that she "continues to suffer legal consequences from [her] conviction that may be remedied by granting of the writ." Fleming v. United States, 146 F.3d 88, 90 (2d Cir.1998); United States v. Craig, 907 F.2d 653, 658 (7th Cir.1990) ("to be successful, the petitioner needs to show lingering civil disabilities from his allegedly wrongful conviction."). In this case, Petitioner asserts that she suffers from legal consequences including loss of standing in the community, pecuniary loss from the fine she paid in the '50s, and her inability to serve on a jury. Reputational harm, however, is clearly insufficient to establish continuing legal consequence. United States v. Nat'l Plastikwear Fashions, Inc., 368 F.2d 845 (2d Cir.1966) (per curiam) ("desire to be rid of the stigma" is not enough); United States v. Liffiton, 159 F.3d 1349 (2d Cir. 1998) (unpublished opinion) ("Reputational harm, standing alone, does not satisfy the continuing legal consequences requirement for obtaining coram nobis relief."); United States v. Osser, 864 F.2d 1056, 1060 (3d Cir.1988) ("Damage to reputation is not enough."). And the prospect of recovering a fine paid to the Government is inadequate, too. See, e.g., United States v. Keane, 852 F.2d 199, 204 (7th Cir.1988) (government's retention of a fine is not a civil disability justifying issuance of the writ because).
That leaves Moskowitz's inability to serve on a jury as Moskowitz's only continuing legal consequence. But Moskowitz
Moskowitz has failed to show that the Government erred in withholding Gold's statements to the FBI. She has also failed to show that the extraordinary remedy of a writ of error coram nobis would be appropriate even if the Government had so erred. Accordingly, Moskowitz's Petition is denied.
The Clerk shall mark the Petition (Doc. No. 1) terminated, and close the file.
SO ORDERED.