47 Conn. App. 1 | Conn. App. Ct. | 1997
Opinion
After a trial to a jury, the defendant, Edward Radzvilowicz, was found guilty on all counts of two informations that had been consolidated for trial. One information charged the defendant with two counts of larceny in the first degree in violation of General Statutes §§ 53U-119
On appeal, the defendant claims that (1) the trial court erroneously consolidated the two informations, (2) the evidence on the one count information charging him with larceny in the first degree from Michael Tavarozzi and Holiday Foods, Inc. (HF, Inc.), was insufficient as a matter of law to prove that he wrongfully appropriated assets of HF, Inc., because he was an owner of that company, (3) his conviction for forgery of the federal income tax documents must be set aside as violating the supremacy clause of the United States constitution, and (4) the prosecutor’s references in his closing argument to the defendant as a “con man” so infected the trial with unfairness as to constitute a denial of due process.
I
A
Among the facts that the jury reasonably could have found with reference to the six count information are the following. Sometime in the spring of 1990, Edward Chicoski and Rafael Sandoval formed three Connecticut corporations, of which they were the sole owners. These corporations were Holiday Foods of Connecticut,
Business kept expanding. Favale was not able to keep up with the work and could not learn to use computers efficiently enough to do the accounting in an automated fashion. Chicoski described her as “computer illiterate.”
In September, 1990, Chicoski and Sandoval hired the defendant at a salary of $400 per week. While his salary would be paid by HFCT, his duties included handling the finances of both HFCT and HFMA. The defendant was computer literate. His employers indicated that his duties would include taking charge of payroll, normal bookkeeping control, accounts payable and monitoring incoming receivables. The defendant’s initial responsibility was to set up an appropriate computer accounting system, which he did with the aid of a programmer. He also was to handle accounts payable through the computer, as well as accounts receivable from customers. In addition, he was in charge of handling the general ledger, doing check reconciliations, making deposits and writing checks. The defendant worked in the Cheshire office. Shortly after he came to work, the defendant told Chicoski that he could save the companies a “lot of money” by doing the job of the outside payroll service, the cost of which was significant, and buying a payroll package that was compatible with their accounting package so that payroll could be handled in-house. A computer software package to accomplish the payroll function in-house was purchased. As the defendant explained to Chicoski, the purpose of that program was to calculate all of the payroll and federal and local taxes in-house, and to write employees’ checks. After this program was set up, the defendant was the only person who knew how to use it
As time passed, there were many weeks when the defendant told Sandoval, who in turn told Chicoski, that HFCT did not have enough money to pay for the food being purchased. This included food purchased from Valley Distributors. This was difficult for Sandoval and Chicoski to believe because of the volume of sales.
In 1992, an IRS investigator, Linda Rheault, discovered discrepancies in certain filed 941 forms of HFCT and HFMA. These involved the amounts being paid and the indication that there were no employees. The discrepancies began with the filing for the September, 1990, quarter. Prior to that time, there had been no problem with the IRS concerning the 941 filings. The names on the forms involved were those of Favale and
The defendant was authorized to write corporate checks only for business purposes, but not to himself personally. He was never given authority to write checks for purposes other than corporate business drawn on HFCT and HFMA. Specifically, he was also never authorized to draw checks to TRE on the accounts of either HFCT or HFMA.
B
Among the facts the jury reasonably could have found as to the single count information charging the defendant with larceny in excess of $10,000 from Michael Tavarozzi, individually, and HF, are the following. Tavarozzi, prior to coming to Connecticut to work for IIFCT, had worked for HFMA in Massachusetts as branch sales manager there. Upon his transfer to Connecticut, he became branch sales manager for HFCT. While in Massachusetts and upon his transfer to HFCT
While working for HFCT, the defendant approached Tavarozzi and asked whether he wanted to go into business with him outside of HFCT. The defendant told him that he had a “lot of experience” in accounting, had a “lot of income” coming from his accounting practice outside of HFCT and that he wanted to invest those moneys. Tavarozzi indicated that he had no capital to get involved with something of that nature, but the defendant asked him to become involved in managing properties or overseeing real estate investments for him. Tavarozzi agreed. The defendant then did the paperwork, setting up the partnership TRE, with Tavarozzi and the defendant as partners. A New Haven Savings Bank checking account was set up for TRE. TRE
The initial idea of considering a purchase of the assets of HFCT from the owners, Chicoski and Sandoval, was Tavarozzi’s. After some discussion, a purchase of HFCT was contemplated by Tavarozzi, the defendant and William Scharr and Allen Carder,
The defendant undertook and maintained control of the financial record keeping of HF, Inc., including checking and disbursements. The defendant, who also continued to control TRE, told Tavarozzi that he owned Valtech. He said that he wanted Tavarozzi to work for Valtech, doing such things as preparing a pension plan
In 1992, the defendant showed Tavarozzi a document on TRE stationery
Neither the defendant nor Tavarozzi had the authority to write checks on the HF, Inc., account to themselves or to cash for large sums of money for noncompany purposes. The defendant, however, did so on many occasions. For example, in a period of less than six months, the defendant drew, endorsed and deposited checks on the HFCT operating account, payable to himself, in excess of $45,000. Eleven of these checks were for $2000 or more, one for $7000. Some of his purchases included a Mercedes and several trips to Florida for himself and others including plane fare, hotel accommodations and drinks. One hotel suite cost $770 per night,
While Tavarozzi and the defendant were associated in HF, Inc., after it formed early in 1991, the defendant was responsible for the preparation and filing of certain federal and state tax forms concerning sales, employees, income and other forms. The defendant did show to Tavarozzi the forms he had prepared, together with the checks for the amount of taxes to be paid. These checks were never endorsed or deposited. Rather, the defendant was diverting those funds to his own use. Later, when the IRS filed liens on HF, Inc., that company dissolved. In addition, there were in evidence two checks drawn on HF, Inc., for $971.60 and $750 made out to Tavarozzi by the defendant allegedly representing payment for his work with Valtech and as payment on the alleged Casa Lupita account. Both checks, however, which bore Tavarozzi’s name as the endorser, had been endorsed not by Tavarozzi but by the defendant. Both were endorsed “for deposit only.”
II
As to the single count information charging the defendant with larceny in the first degree pertaining to Tavarozzi, individually, and HF, Inc., the defendant claims that the evidence was insufficient as a matter of law to sustain his conviction. He claims that as an owner and “authorized officer” of HF, Inc., he had a right to withdraw funds from HF, Inc., and that the evidence
“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994), quoting State v. Greenfield, 228 Conn. 62, 76, 634 A.2d 879 (1993); State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990).
“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. State v. Carter,
A person is guilty of larceny by embezzlement “when he wrongfully appropriates to himself or to another property of another in his care or custody.” General Statutes § 53a-119 (1). A person is guilty of larceny by embezzlement in the first degree where “the value of the property . . . exceeds ten thousand dollars . . . .” General Statutes § 53a-122 (a) (2); see State v. Pearl, 28 Conn. App. 521, 527, 613 A.2d 304 (1992). “The crime of embezzlement is consummated where . . . the defendant, by virtue of his agency or other confidential relationship, has been entrusted with the property of another and wrongfully converts it to his own use.” State v. Lizzi, 199 Conn. 462, 467, 508 A.2d 16 (1986); see State v. Harris, 147 Conn. 589, 592, 164 A.2d 399 (1960); State v. Serkau, 128 Conn. 153, 157-58, 20 A.2d 725 (1941); see also W. LaFave & A. Scott, Criminal Law (1972) § 89, pp. 649-50; 26 Am. Jur. 2d 362, Embezzlement § 6 (1996).
We take up first the larceny by embezzlement as concerns the corporate entity, i.e., HF, Inc. A corporation is a separate legal entity, separate and apart from its stockholders. See State v. Harris, supra, 147 Conn. 593; Humphrey v. Argraves, 145 Conn. 350, 354, 143 A.2d 432 (1958); Hoffman Wall Paper Co. v. Hartford, 114 Conn. 531, 534, 159 A. 346 (1932). “The property of the corporation was not [the defendant’s], regardless
The defendant, by virtue of his position and conduct, had property of HF, Inc., in his care and custody. The possession concomitant with this care and custody was legal. His action concerning the property was confined to disbursements only for proper business of HF, Inc. The defendant’s status, under the circumstances, was in the nature of a fiduciary. It was with such a status the defendant took to himself, for all practical purposes, the management of the affairs of HF, Inc. He had absolutely no authority on the record to act otherwise. Even though he had a sizable interest in HF, Inc., he acted wholly without corporate authority. In comporting himself as he did in making disbursements of the funds of HF, Inc., for nonbusiness purposes, including personal use, he wrongfully exercised control over the funds and appropriated them to himself. The lawful possession became, by his felonious intent in using the property of HF, Inc., as he did, the crime of larceny by embezzlement of moneys of HF, Inc., in excess of $10,000. The evidence we have set out, including his representations to Tavarozzi of the false federal and state tax payments, demonstrated the felonious intent. There was sufficient
Next, we turn to the larceny by embezzlement as to Tavarozzi individually. He, like the defendant, was a principal and a shareholder in HF, Inc., did not hold the title to corporate property and had a right to receive moneys from HF, Inc., where the authority to do so existed. He also had obligation to make authorized disbursements for the conduct of HF, Inc., business. Tavarozzi did have a right to possession of HF, Inc., property that was superior to that of one who was a taker, an obtainer or a withholder of that property, even if it were this defendant.
The trial court charged, without exception, as follows. “The primary element of a larceny, under the statute, is that there be a wrongful taking, obtaining or withholding of property from an owner. Taking means any wrongful taking of property away from the person entitled to it, whether by force or some other unlawful means. Obtaining means wrongfully obtaining property from another or wrongfully bringing about the transfer of a legal interest in the property from the owner to the offender, or a third person. Withholding means wrongfully keeping property from its owner. . . . [WJrongfully, as used in the statute, means without any legal justification or excuse, and it also requires that the defendant have a dishonest purpose or intention of defrauding, cheating or depriving the owner of the property. ... To appropriate property of another to oneself or third person means to dispose of the property for the benefit of oneself or a third person.”
In addition, “ ‘[property’ means any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind. ...” General Statutes § 53a-118 (a) (1). Our definitional provision in part IX of chapter 952 of the General Statutes,
We find support for this conclusion under our statutory scheme and accepted referents in its interpretation. Our statutes, as noted, define “owner” and “property” but not “property of another.” Our Supreme Court has pointed out that “[t]he drafters of the [Connecticut penal] code relied heavily upon the Model Penal Code and various state criminal codes, especially the penal code of New York.” (Internal quotation marks omitted.) State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990); State v. Hill, 201 Conn. 505, 516-17, 523 A.2d 1252 (1986). We may turn to statutory provisions of such codes for guidance in a proper case even though we are aware that similarity of language does not compel a like construction. See State v. Havican, supra, 601; State v. Hill, supra, 517. Accordingly, we turn to a well considered definition of the “property of another” that is found in the A.L.I., Model Penal Code and Commentaries (1980) § 223.0 (7) p. 125.
The penal code definition provides in relevant part that “ ‘property of another’ includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact the actor also has an interest in the property . . . .”
The funds of HF, Inc., that the defendant embezzled included moneys in which Tavarozzi had an interest and on which the defendant was not privileged to infringe even considering that the defendant had an interest in them but for his misappropriations. Tavarozzi could appropriately look to such funds as the basis for profits, distributions, salary and the like when they were disbursed or declared by proper corporate action. The defendant was not privileged to infringe on such interests of Tavarozzi.
Webster’s definitions of “infringe” include “destroy,” “defeat” and “transgress.” Webster’s Third New International Dictionary. The penal code definition of “property of another” has salutary relevance to our statutory scheme of larceny in all its aspects of advancing the efforts of criminal law to deter the impairment of the economic interests of other people. See Model Penal Code and Commentaries, supra, p. 170. Years ago, albeit under somewhat different factual circumstances but with no difference in principle, our Supreme Court held that an agent could be convicted of embezzling a fund even when he was entitled to a part of it as a commission for collection. In doing so, that court said: “The weight of modem authority and every consideration of public policy support the view that a conviction of embezzlement can be had under these circumstances .... There is no difference in principle when the agent embezzles the major part of the fund [before his principal has exercised his right to the fund less the agent’s commission], though he is entitled to a small percentage
Ill
The defendant next claims that the joinder of the two informations,
Our review of this claim involves the question of whether the trial court abused its discretion in failing to conclude that the defendant would suffer “substantial injustice” if the larceny charges were consolidated and adjudicated in the same trial. See State v. Chance, 236 Conn. 31, 37, 671 A.2d 323 (1996); State v. Boscarino, 204 Conn. 714, 721, 529 A.2d 1260 (1987). “It is clear . . . that the presumption is in favor of joinder and against severance. Only when joinder will work a substantial injustice should a trial court sever the charges.” State v. Jones, 234 Conn. 324, 344, 662 A.2d 1199 (1995).
“In assessing prejudice, a reviewing court should consider factors such as (1) whether the charges involved discrete, easily distinguishable factual scenarios; (2) whether the crimes were of a violent nature or concerned brutal or shocking conduct on the defendant’s part; and (3) the duration and complexity of the trial. . . . [I]f any or all of these factors were present, a reviewing court would have to decide whether the trial court’s jury instructions cured any prejudice that might have occurred.” (Citations omitted; internal quotation marks omitted.) State v. Horne, 215 Conn. 538, 547, 577
We look first to whether the charges that the defendant claims were improperly consolidated involved “discrete, easily distinguishable factual scenarios.” Initially, we note that the defendant claims that, “[a]lthough there was a significant amount of overlapping factual evidence of the two larcenies [the ChicoskiSandoval larceny and the Tavarozzi larceny], the nature of the two larcenies was sufficiently distinct to present the danger of significant prejudice and confusion by consolidation of the two larcenies.” He states, however, that “the overlapping evidence was extraordinarily difficult to parse out and apply to the separate charges,” as well as saying that “the confusing fact pattern made it likely that the jury used evidence of the ChicoskiSandoval larceny to convict on the Tavarozzi larceny, and evidence of the Tavarozzi larceny to convict on the Chicoski-Sandoval larceny.” The facts in the Tavarozzi larceny charges were sufficiently related to the Chicoski-Sandoval larceny charges in the other information so that a number of those facts would have been admissible in the Tavarozzi case. For example, the defendant was the bookkeeper controller not only of HFCT but also of HFMA before he secretly took part in the proposal to buy the assets of HFCT from Chicoski and Sandoval. In that position, he generated the misleading financial statements of the dire fiscal condition of HFCT that influenced Chicoski and Sandoval to sell HFCT to
Next, we consider whether the crimes charged were of a violent nature or concerned brutal or shocking conduct on the defendant’s part. See State v. Chance, supra, 236 Conn. 42; State v. Jennings, 216 Conn. 647,
We next examine the defendant’s claim that he was substantially prejudiced by the duration and complexity of the consolidated trial. We are aware that the duration and complexity of a consolidated trial may enhance the likelihood that juiy may weigh the evidence against the defendant cumulatively, rather than independently in each case. See State v. Boscarino, supra, 204 Conn. 723-24 (approximately ten weeks of testimony by fifty-five witnesses constituted undue duration and complexity); see also State v. Jennings, supra, 216 Conn. 660; cf. State v. Herring, supra, 210 Conn. 97 (no undue duration or complexity in eight days of testimony by twenty-three witnesses in consolidated cases where, in first case, defendant charged with crimes of murder and conspiracy to commit murder and, in second case, with crimes of murder and felony murder). The circumstances of each case must be considered where consolidation is claimed to result in a substantial prejudice.
The defendant’s trial covered nine days
The trial court endeavored to aid the jury in the matter of understanding the evidence. For example, on one occasion, over the state’s objection, it told the jury that at that point Tavarozzi was beginning to testify about the single count larceny information. On another occasion, it admitted, as an aid to the jury, a chart showing a number of corporate checks that the state claimed were unauthorized.
Finally, we have already referred to the significance of a trial court’s instructions in alleging the matter of prejudice that might be the result of consolidation. In this case, the trial court pointed out during voir dire that trial did involve two separate informations. It described in detail the allegations of each count, and said that “each one of these charges must be considered separately, and in each information separately as well.” When the jury had been selected and sworn and after the clerk had read in full each count in both informations, the trial court, in its remarks, included the following: “Each charge against the defendant is set forth on the informations in a separate paragraph or count, and each offense charged must be considered separately by you in deciding the guilt or innocence of the defendant.” About midway during the trial and during Tavarozzi’s direct testimony, the trial court, reminding the jury that “just before the evidence began, [the trial court indicated] that there were two separate informations, one in six counts, the other in one count,” again addressed the jury. At that time, to preserve clarity, it said: “Mr. Tavarozzi now has been testifying about a larceny first charge . . . which is contained in a one count information which involved [HF, Inc. ], as opposed to the larceny first which involved [HFCT] and [HFMA].” During its final instructions to the jury, it charged in detail on the three larceny counts, which corporations were involved
“Barring contrary evidence [and there is none], we must presume that juries follow the instructions given them by the trial judge.” United States v. Casamento, supra, 887 F.2d 1151; State v. Horne, supra, 215 Conn. 551; State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Williams, supra, 202 Conn. 363-64; State v. Guess, 39 Conn. App. 224, 235, 665 A.2d 126, cert. denied, 235 Conn. 924, 666 A.2d 1187 (1995). “This presumption is ‘rooted less in the absolute certitude that [it] is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. ’ [Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987)].” United States v. Casamento, supra, 1151. Under the circumstances, the trial court’s instructions minimized any risk of prejudice that might have been caused by the consolidation of the two informations.
We conclude that the defendant has not sustained his burden on the consolidation claim. The consolidation of the informations did not result in substantial prejudice, and the trial court did not abuse its discretion in granting the state’s motion for consolidation.
IV
The defendant next claims that his conviction on the four forgery counts must be set aside because his
In Times Mirror Co. v. Division of Public Utility Control, 192 Conn. 506, 510-12, 473 A.2d 768 (1984), our Supreme Court said: “The question of preemption is one of federal law, arising under the supremacy clause of the United States constitution. U.S. Const., art VI. As the United States Supreme Court has recently reiterated, state law can be preempted in either of two general ways. If Congress evidences an intent to occupy
“In the determination of whether state law has been preempted, the Supreme Court of the United States has in recent years retreated from its earlier view that there was no room for any state regulation of matters already regulated by the federal government. See L. Tribe, American Constitutional Law [(1978) § 6-23], pp. 377-79. State law is today preempted only to the extent necessary to protect the achievement of the aims of the federal law. De Canas v. Bica, 424 U.S. 351, 357-58 n.5, 96 S. Ct. 933, 47 L. Ed. 2d 43 (1976); Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117, 127, 94 S. Ct. 383, 38 L. Ed. 2d 348 (1973).” (Internal quotation marks omitted.) “State laws are preempted only when their operation expressly conflicts with the laws of the United States. McClellan v. Chipman, 164 U.S. 347, 356-57, 17 S. Ct. 85, 41 L. Ed. 461 (1896); Shea v. First
In Pennsylvania v. Nelson, supra, 350 U.S. 497, the United States Supreme Court set out a three-pronged test for determining the preemption issue. “First, ‘[t]he scheme of federal regulation [must be] so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it’ id., 502; “[s]econd, the federal [statute must] ‘touch a field in which the federal interest is so dominant that the federal system [must] be assumed to preclude enforcement of state laws on the same subject’ ”; id., 504; “[t]hird, enforcement of state [legislation must present] a serious danger of conflict with the administration of the federal program.” Id., 505; see Shea v. First Federal Savings & Loan of New Haven, supra, 184 Conn. 293. In addressing preemption, the United States Supreme Court has said that “[i]f Congress is authorized to act in a field, it should manifest its intention clearly. It will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so. The exercise of federal supremacy is not lightly to be presumed. Schwartz v. Texas, 344 U.S. 199, 202-203, [73 S. Ct. 232, 97 L. Ed. 231] (1952).” (Internal quotation marks omitted.) New York State Dept. of Social Services v. Dublino, 413 U.S. 405, 413, 93 S. Ct. 2507, 37 L. Ed. 2d 688 (1973); see Maryland v. Louisiana, 451 U.S. 725, 746-47, 101 S. Ct. 2114, 68 L. Ed. 2d 576 (1981); see Shea v. First Federal Savings & Loan Assn. of New Haven, supra, 292. Moreover, preemption is not “to be inferred merely from the comprehensive character of the federal [legislation].” New York State Dept. of Welfare Services v. Dublino, supra, 415; R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 149, 107
In deciding the issue of preemption, it is crucial to determine the intent of Congress to ascertain whether the state statute violated the supremacy clause of the United States constitution and is, therefore, invalid. See California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 280, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987). “An act may be made a crime by both state and federal legislation.” State v. Scarano, 149 Conn. 34, 39, 175 A.2d 360 (1961); Hoxie v. New York, N. H. & H. R. Co., 82 Conn. 352, 365, 73 A. 754 (1909); see State v. Moeller, 178 Conn. 67, 71, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979). Under the doctrine of “dual sovereignty” the same act may be an offense or transgression against both sovereigns and may be punished by each. See California v. Zook, 336 U.S. 725, 731, 69 S. Ct. 841, 93 L. Ed. 1005 (1949); United States v. Lanza, 260 U.S. 377, 382, 43 S. Ct. 141, 67 L. Ed. 314 (1922); State v. McKenna, 188 Conn. 671, 677 n.13, 453 A.2d 435 (1982); State v. Moeller, supra, 178 Conn. 70-71; State v. Scarano, supra, 149 Conn. 40-41. The United States Supreme Court “has clearly placed the burden on the proponent of federal preemption to state a strong case . . . .” Druker v. Sullivan, 334 F. Sup. 861, 862 (D. Mass. 1971), aff'd, 458 F.2d 1272 (1st Cir. 1972), citing Florida Lime & Avocado Growers v. Paul, supra, 373 U.S. 142. It is instructive to point out that “[our] Superior Court has jurisdiction of all matters expressly committed to it and of all other judicially cognizable matters not within the exclusive jurisdiction of another court. Carten v. Carten, 153 Conn. 603, 612, 219 A.2d 711 (1966).” Shea v. First Federal Savings & Loan Assn. of New Haven, supra, 184 Conn. 290. Jurisdiction for any violation of our forgery statute in General Statutes § 53a-138 et seq. is specifically within the
Federal law may preempt state law when Congress, acting within constitutional limitations, does so by so stating in express terms or by what is “implicitly contained in its structure and purpose. ” Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977). The defendant has not referred to any federal statute that expressly preempts this state’s prosecution of the forgery charges in this case. As we will discuss, 18 U.S.C. § 3231, which confers original jurisdiction upon the district courts “of all offenses against the laws of the United States,” does not, in our view, in this case operate as to preempt expressly our forgery statute in § 53a-138 et seq.
It has been said that “[s]ince the Federal Criminal Code confers upon the District Courts of the United States original jurisdiction, exclusive of state courts, of ‘all offenses against the laws of the United States,’ such courts by virtue of such provision of course have original and exclusive jurisdiction of prosecutions for offenses against the tax laws of the United States, or more specifically, in violation of the Internal Revenue Code.” 35 Am. Jur. 2d 175, Federal Tax Enforcement § 125 (1967). Under 18 U.S.C. § 3231, “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses
There can be little, if any, question that the Internal Revenue Code is a most comprehensive regulatory code, both in its statutory and regulatory aspects. As is almost any complex federal statute, it is national in its application and impact. Despite the complex statutory and regulatory scheme of the code, the subjects of certain regulation “often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem.” (Internal quotation marks omitted.) Hillsborough County v. Automated Medical Labs, Inc., 471 U.S. 707,
Here, the crime at issue is forgery. In pursuing that charge in this particular case, the state is not at all trenching upon the IRS’ pursuit of the code violations by the defendant. The IRS, as the witness Reheault explained, was pursuing the violations by its filing of tax hens and assessment of penalties. It chose not to proceed, although it could have, on the forgery and specifically not on 26 U.S.C. §§ 7206 and 7207.
In finding that to be so in this case, we are aware that “in those areas where Congress has not completely displaced state regulation, federal law may nevertheless pre-empt state law to the extent it actually conflicts with federal law. Such a conflict occurs either because ‘compliance with both federal and state regulations is a physical impossibility’ ... or because the state law stands ‘as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” (Citation omitted.) California Federal Savings & Loan Assn. v. Guerra, supra, 479 U.S. 281; see General Motors Corp. v. Abrams, 897 F.2d 34, 40 (2d Cir. 1990); Dept. of Labor & Industry v. Common Carriers, 111 Wash. 2d 586, 588, 762 P.2d 348 (1988). It is apparent that “dual compliance” is not physically impossible in this case. Furthermore, the defendant has not pointed to any actual conflict with federal law. In addition, one commentator properly points out that the United States
There remains, on this branch of the case, the defendant’s claim that the IRS, with which the federal tax Form 941 is to be filed, “is not a public office or public servant” under our forgery statute. See General Statutes § 53a-139 (a) (2).
The defendant argues that “public office” and “public servant” are not defined in the penal code
Our Supreme Court has said that “[although we recognize the fundamental principle that criminal statutes are to be construed strictly, ‘it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent. State v. Belton, 190 Conn. 496, 505-506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983); State v. Sober, 166 Conn. 81, 91, 347 A.2d 61 (1974).’ ” State v. Dolphin, 203 Conn. 506, 523-24, 525 A.2d 509 (1987). “[T]he application of common sense
It is clear that our forgery statute was intended to be quite comprehensive in the mischief it was meant to proscribe in the legitimate exercise of the legislative power. We have already decided that, under the circumstances of this case, preemption has not been proven, and, therefore, the conduct of the defendant concerning the federal forms 941 can properly be violations of the forgery statute. That Rheault was an employee of the IRS does not mean that she caxrnot be a “public servant” under our forgery statute; she was. We cannot accept the defendant’s restrictive proffer of the meaning of “public office” only as a place where one is free to go and see the records one wishes.
V
The defendant’s final claim is that the prosecutor’s “repeated references to him as a ‘con man’ who has
Initially, we note that defense counsel did not object at trial to any of the comments made by the prosecutor. The defendant, therefore, now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).
“Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of . . . constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). “The first two questions relate to whether a defendant’s claim is
In State v. Couture, supra, 194 Conn. 562, quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982), our Supreme Court said: “ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ ” See State v. Cosgrove, 186 Conn. 476, 488, 442 A.2d 1320 (1982); State v. Oehman, 212 Conn. 325, 336, 562 A.2d 493 (1989); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). “[T]he aim of due process is not punishment of society for the misdeeds of the prosecu
It is correct that the prosecutor did, in argument, submit to the jury that the “defendant [was] simply someone who cannot be believed.” While this was not appropriate; State v. Williams, supra, 204 Conn. 541; it did not, singly or in the context of the entire trial, afford support to the defendant’s claim. The prosecutor’s remarks about the defendant being a “con man” and that he had indulged in such activities, although inappropriate, do not in context, together with all the challenged remarks, avail the defendant. Our conclusion here is supported by our careful examination of the entire trial transcript. The challenged remarks were fairly isolated, were “unrepresentative of a pattern of conduct repeated throughout the trial”; (internal quotation marks omitted) State v. Hammond, 221 Conn. 264, 290, 604 A.2d 793 (1992); State v. Tweedy, 219 Conn. 489, 509, 594 A.2d 906 (1991); and, to the extent that they were inappropriate, were not, in context, “blatantly egregious” to merit the relief as asked. State v. Watlington, 216 Conn. 188, 193, 579 A.2d 490 (1990); State v. McFadden, 25 Conn. App. 171, 177, 593 A.2d 979, cert. denied, 220 Conn. 906, 593 A.2d 972 (1991).
It can fairly be said that the state had a strong case against the defendant. See State v. Lucci, supra, 25 Conn. App. 348. In sum, the challenged remarks “did not deprive the defendant of a fair trial; see State v. Golding, supra, 213 Conn. 239-40; or otherwise implicate the fairness and integrity of and public confidence in the judicial proceedings. See State v. Day, 233 Conn.
The judgments are affirmed.
In this opinion the other judges concurred.
General Statutes § 53a-119 provides in relevant part: “Larceny defined. A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. . . .”
General Statutes § 53a-122 provides in relevant part: “Larceny in the first degree: Class B felony, (a) A person is guilty of larceny in the first degree when he commits larceny as defined in section 53a-119 and ... (2) the value of the property or service exceeds ten thousand dollars . . . .”
General Statutes § 53a-139 provides in relevant part: “Forgery in the second degree: Class D felony, (a) A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely
After the guilty verdicts on the two consolidated informations, the defendant pleaded guilty to a charge of violation of probation based on the underlying charges. The sentence on that charge was made concurrent with the effective twenty year sentence imposed under the consolidated informations.
An outside programmer assisted the defendant in setting up this new computer program. There is no claim in these cases that the programmer did anything else.
Form 941 is a quarterly United States payroll tax return an employer files under a corporate name and an assigned number. It lists wages paid, social security taxes paid and income tax withheld. It is an official record required to be filed with the Internal Revenue Service.
Some time later, Tavarozzi and the defendant purchased the interests of Scharr and Carder, leaving them as the sole owners of HF, Inc.
During oral arguments in this court, defendant’s counsel conceded that the $10,000 threshold for the two larceny counts in the multicount information was not in issue. See General Statutes § 53a-122 (a) (2). He argued, however, that there was no evidentiary basis for finding the 810,000 threshold as to the single count, information charged as to Michael Tavarozzi individually and IIF, Inc.
Actually, Chicoski did not know of the existence of TRE until after the arrest warrants for tire defendant were issued. Neither Chicoski nor Sandoval had any interest in TRE.
The defendant, during his trial testimony, admitted that neither of these representations were true. He had also made the same representations to Chicoski and Sandoval.
William Scharr was the assistant branch manager of HFCT and Allen Carder was the telemarketing manager of HFMA.
The interest of Scharr and Carder in a potential purchase was also not disclosed during the negotiations.
The defendant provided him with a payroll summary of Valtech and a list of its employees so that Tavarozzi could begin working on the pension plan.
At the trial, the attorney whose name was “signed” to this letter testified. Although the letterhead looked like his, he said that the signature was not his. He had never heard of the “Chuck Wagon” restaurant or the “Casa Lupita” or the Snowdens of Rhode Island. He knew nothing about the contents of the letter. Moreover, he did not recognize the defendant, who was pointed out to him in the courtroom, as anyone he had ever seen before.
The address oí TRE on that letterhead was “111 DeKoven Drive, Middle-town, Connecticut,” which was the defendant’s residence.
The defendant had also shown Tavarozzi a document that he claimed was an income statement of TRE from December 12, 1991, to March 30, 1992, showing that it was doing “very well.” The statement showed, inter alia, income from Valtech and G-Tech and a New Haven Savings Bank account of $850. This bank account was closed out showing a balance of zero on September 30, 1992.
The defendant indicated to Tavarozzi moneys earned by TRE were also invested in two other restaurants: Carriage Drive of Rhode Island, Inc., and Casa Lupita in New Jersey. During her testimony, Jennifer Snowden said that she believed Casa Lupita was a “chain.”
General Statutes § 53a-118 (a) (1) provides in relevant part: “ ‘Property’ means any money, personal property, real property, thing in action, evidence of debt or contract, or article of value of any kind. . . .”
The defendant testified at length in his own defense, including his drawing of checks on HF, Inc. It is apparent that the jury rejected his explanation of his “authority” to act as he did.
Section 223.0 (7) of the Model Penal Code provides: “ ‘property of another’ includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement.”
We consider this claim as including the four counts of forgery for which the defendant also claims there was no subject matter jurisdiction. See part IV of this opinion.
In this case the defendant testified at length on his own behalf about the crimes with which he was charged. His claims before us do not present the issue, made in some severance cases, that consolidation prevented him from testifying as to some charges and not others. In that context, one court has said: “[N]o need for a severance exists until the defendant makes a convincing showing that he has both important testimony to give concerning one count and strong need to refrain from testifying on the other. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on one count and his reasons for not wishing to testify on the other—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of ‘economy and expedition in judicial administration’ against the defendant’s interest in having a free choice with respect to testifying.” (Internal quotation marks omitted.) United States v. Cox, 934 F.2d 1114, 1120 (10th Cir. 1991), quoting United States v. Valentine, 706 F.2d 282, 291 (10th Cir. 1983); see State v. Marsala, 43 Conn. App. 527, 535-36, 684 A.2d 1199 (1996), cert. denied, 239 Conn. 957, 688 A.2d 329 (1997).
The defendant’s trial did not last “four weeks” as his brief claims. Pretrial motions and jury selection consumed a number of days before evidence was presented before the jury.
The evidence concerning HFNE was minuscule.
Prior to admitting this chart, the trial court excluded another chart offered by the state, also going to the flow of corporate money, to show that at least some of the checks were apparently unauthorized.
During its final instructions, the court also charged in detail on the charges of forgery, saying that “each of these counts must be considered separately.”
The supremacy clause of the United States constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby . . . U.S. Const.., art. VI.
We note that 26 U.S.C. § 7401 and 28 U.S.C. § 1340 each apply to a “civil action.”
We recognize that the code elsewhere, i.e., 26 U.S.C. §§ 7206 and 7207, applies to the alleged forgery offenses.
26 U.S.C. §§ 7206 and 7207 are both criminal statutes. The former concerns fraud and false statements, and the latter concerns fraudulent returns and statements to the secretary of the treasury.
See footnote 2.
The term “public servant” is defined for purposes of part XI of chapter 952 of the penal code. While part X of chapter 952, which covers “Forgery and Related Offenses,” also has its own definition section, i.e., General Statutes § 53a-137, that section does not define “public servant.”
Parenthetically, we note that subdivision (2) of § 53a-139 (a) is directed to “a public record or an instrument . . . .” (Emphasis added.) There is no claim, nor can we see any, that the adjective “public” was intended to apply to “instrument” as well as “record.” If there was, the legislature did not say so. The intent of the legislation is found not in what the legislature meant
The prosecutor said during his opening argument: “Mr. Radzvilowicz is a very capable con man, he’s articulate and he conned a lot of people, not Mr. Tavarozzi alone.”
During his closing argument the prosecutor said: “I submit to you that this defendant is simply someone who cannot be believed. He has attempted to con people during the course of his employment with these various companies .... Ladies and gentlemen, the defendant has conned people over the last couple of years. I am confident that he will not con you also. Please demonstrate to Mr. Radzvilowicz that you know him for what he is.”
Although the defendant refers to the Connecticut constitution in his brief, he does no more than that and we need not address it. See State v. Wilkes, 236 Conn. 176, 183 n.9, 671 A.2d 1296 (1996); State v. Williams 231 Conn. 235, 247 n.16, 645 A.2d 999 (1994); Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984).
During the trial, the jury heard the defendant admit that he had twice been convicted of a felony. One conviction was in 1985 for which he was sentenced to eight years to be suspended after one year with three years probation. The second conviction was in 1988 for ten years to be suspended after five years with five years probation.