*1 America, Appellee, UNITED STATES of al., Appellants. et BERNSTEIN 941, 942, Dockets
Nos.
74-2328, 74-2329, 74-2462, 74-2463
and 74-2464. of Appeals,
United States Court
Second Circuit.
Argued June 1975.
Decided March *5 Raichle, Buffalo,
Frank (Raichle, G. Y.N. Banning, Halpern, Weiss & R. William Ste- phens, Buffalo, Y., counsel), N. appel- for lants Bernstein and Corp. Eastern Service Henry Boitel, J. New City, ap- York for pellant Behar.
John Kiser, A. City, New York for appel- lant Cardone. DePetris,
Ronald E. Atty., Asst. U. S. Brooklyn, (David N. Trager, Y. G. U. S. Y., Atty., E. D. N. Bergman, Paul B. Asst. Y., Atty., counsel; U. S. Brooklyn, N. Drexler, A. the brief), Gale for appellee. FEINBERG, Before OAKES and VAN GRAAFEILAND, Judges. Circuit OAKES, Judge: Circuit This is appeal from convictions for “white collar” crimes in connection with the ob taining of Housing Federal Administration (FHA) guarantees on mortgage loans. For involved, proof of the crimes such a multi plicity of small transactions was necessary shown that the trial in the for States District Court the Eastern Dis of Facts. Travia, Statement York, I. Anthony J. The FHA is a New trict .eight Department months with a re division of the Judge* took Housing over (HUD). three transcript. Development The Urban FHA 25,000-page has a sultant guarantee were well appellants program of which loan known to the offenses types of public conspiracy, whereby grants mortgage include 18 U.S.C. it insur- guilty found offenses, bribery lender-mortgagee ance to a who is thereby substantive § against if mortgagor 201 and 18 U.S.C. substan insured loss is § § U.S.C. applications offenses in unable to off the loan. The pay mortgage false statement tive mortgage insurance in violation of 18 insurance in the instances here for involved appel two-step and 18 2. All in a procedure. U.S.C. was obtained U.S.C. § conspiracy, ap step mortgagee apply convicted of all first was for the lants except bribery, appraisal Melvin the FHA for an pellants property; Cardona this was made on a “Form 2800.” The appellants except all Rose Bernstein mortgagee’s application second was the false statements.1 credit; approval mortgagor’s multiple attack on the convic launched alia, inter tions, ranging, claims from was made on a “Form 2900” and their includes necessary disqualification prose of the trial court and certain information and exhibits including report, mismanagement to erroneous ad a credit verification of em- cutorial evidence, form, insufficiency ployment of evi and the like. If an apprais- mission of value, up erroneous to the al property dence and instructions sufficient argu we the FHA will jury. While find some of their issue conditional commit- troublesome, we them ment ments find none of then makes firm if the mort- meritorious, gagor’s and affirm satisfactory approved. the convictions. * appellant Harry Now retired. On October Bern- imprisonment stein was sentenced a term of conspiracy 1. The count in the redacted indict- years count, conspiracy of five on the five 1; the false counts ment Count statement years counts, bribery on each of the 16 and two on which there were submitted count, years on the false statement the terms to 2, 4, 5, 7, 9, 10, 12, 14, guilty findings concurrently. $10,000 run He was also fined *6 20, 21, 23, 25, 26, 31; 16-18, bribery 27 and $10,000 count, conspiracy on the on each of 16 findings guilty which there were of counts on counts, $5,000 bribery and on one false state- 35-39, 41, 42, 44, 46, 48, 50, 51, 53, 55, 57, count, consecutively (mak- ment ing fines to run all Corp. (ESC) and 65. Eastern Service $175,000). Appellant a total fine of Rose bribery acquitted and was on Counts imprison- a Bernstein was sentenced to term of likewise, Harry Bernstein was Rose Bernstein years ment of four on each count to run con- bribery acquitted on 33 and was Counts $10,000 currently, conspir- and a fine of on the acquitted Behar was on Count 33. and Florence False statement Counts $10,000 acy bribery count and on each of four 2 and 20 were dis- consecutively (making counts to run a total Harry and Rose Bernstein and missed as $50,000). Appellant fine of ESC was fined 25 and 50 as to Rose Bernstein. Counts $10,000 conspiracy count, $5,000 on the on disagreed jury respect with de- The counts, of each $20,000 false statement and Bradstreet, (conspiracy Dun & Inc. fendants counts, bribery on each of the 18 counts), all false statement Arthur Pres- and ten cott counts) consecutively (making (conspiracy fines to run a total fine and ten false statement $460,000). (conspiracy Appellant and Herbert and 11 of Behar Cronin was sentenced counts). imprisonment years false statement overvaluation count had been dismissed One to a term of of two on each against on consent $1,000 concurrently count to run and a fine of Bradstreet, Inc., and defendants Dun & bribery on each three and 18 false statement case. Prescott at the end the Government’s consecutively (making counts to run a total Joseph jury acquitted defendant Jan- The $21,000). Appellant fine Cardona was sen- bribery counts). (conspiracy two kowitz and imprisonment years tenced to term of of two by July discharged on the court The concurrently count run on each and a fine of Thereafter, by order dated November 1974. 1974, $1,000 on each of 17 false statement counts to granted by motions the defend- the court $17,- consecutively (making run a total fine of Bradstreet, Inc., for a Dun & and Prescott ants 000). stayed, Execution of sentence was conspiracy judgment acquittal pending have been free on bail ten statement counts as to which there false appeal. jury. hung was a (ESC) was a Corporation coconspirator Rose Cohen Eastern Service and his appraisals by wholly appel- owned by institution lending reviewed Joseph defendant Jan- initially Harry kowitz, Bernstein. It would lant FHA appraiser. senior staff De- subsequent- money buyers to home Cronin, loan fendant Herbert the chief under- mortgage permanent loans to ly office, sell writer of the FHA responsible banks, pension lenders, savings such as for overseeing appraisals, all and had the funds, Mortgage the Federal National prerogative” “chief (CUP) underwriter’s Association, retained, however, being while appraisal might which an FHA be increased in- the administrative tasks perform up in his to a discretion maximum of $500 servicing the mortgage. volved particular property. on a 'major its profit made from two ESC One of real principal specula- two estate origination and of loans sources —the sale Brooklyn tors active in and involved in the servicing closings of loans. On loan and the Warehouse, (Jet), case was Jet Inc. another origination processing or fee there was corporation wholly owned Bern- e., i. “point,” per one cent of the of one stein. mortgages Jet held second on a amount. mortgage corpora- In addition the number of which were properties later refi- charge a tion would certain number nanced way FHA-insured mortgages. specu- to the real estate or “points” broker Jet also money loaned to various real estate and, sold the home after the loan lator who speculators purchase properties, on which closed, mortgage would be sold ESC applications would be submitted to the of a permanent lender at a discount FHA. speculator such other was Or- profit points. number of Thus the certain who, trud Kapraki, along Goodwin, was the difference between for ESC was a chief Government witness and who in speculator to the broker or points approximately closings had points at-which the was dis- and the loan ESC, amounting to per about five cent of counted, plus processing fee ESC’s mortgages. business FHA-insured fee, servicing expenses. less ESC was an FHA “approved mortgage case, Government’s down to boiled such, lender” lending and as on an interim essentials, the bare was that the Bernsteins basis, it was to make able prof- considerable on behalf FHA procured of ESC favorable very its with little risk and with a limited by virtue of FHA staff appraisals bribes to capital. use of In the nature of economic working Hempstead, out of the appraisers life, mortgage once FHA insurance has York, regional New office. ESC also procured only been low down payments are approvals mortga- obtained individual required, permanent lender is readily gors’ virtue of a of false number purchase the mortgage from available credit statements submitted and certified *7 lender, the interim and if mortgage the Behar, processed Florence was an who goes into foreclosure the interim lender president vice assistant in ESC knows that pay the FHA will virtually full processing the section. A of these number value outstanding on the loan so that there Cardona, were solicited Melvin one of great is, no risk foreclosure. The risk approximately 12 to 14 mortgage solicitors fact, practical purposes for all after as- by ESC, employed who also obtained false points charged, sorted are close to zero. reports on the mortgagors’ financial behalf. proof The Government adduced was also to proof bribery on the counts the Government effect least as to the second very phase mortgage went to the heart of the office process-— FHA of the insurance involved, located, as it happened, mortgagor’s credit —the FHA is de- building with pendent approved same One FHA staff upon mortgagee, ESC. receiving
appraiser may say bribes was Edward we integrity. latter’s Goodwin, performed ap- only who and reviewed This is so mortgagee because per- Brooklyn; ap- sonally he praisals assigned mortgagor was interviews the and it applications praisal from time to time which mortgagee has the obligation to appraisals, and in- hundreds of these and the employment ESC verification of obtain high credit information initial ap- other Bernsteins would obtain come and to obtain reevaluation, mortgagor’s employment praisal, frequent upward regarding a omnipresent then the almost CUP. On income. bribery each counts on which the riots in 1966 city the inner was after It various other than Cardona were the inner improve to and FHA intervention convicted, proof estab- Government into really and Jet went cities that ESC clarity.2 this with some Evidence lished market. Government a new what was mortgages on indicated that Jet held second the effect that after was to proof adduced properties nine three in- and owned by Harry and Rose approach an initial bribery volved in the counts. latter, Goodwin, to Edward Bernstein Underwriter approval with the of Chief Bribery ap- also to occurred in reference went to contrary policy, to FHA but Cronin plications appraisals for on a number of the office, pick up supposedly the Bernstein Kapraki properties. so-called In the sum- reality In he was properties. keys some speculator, mer of 1968the other real estate arrangement with an approached there Kapraki, began to submit an increased property per $50 he would obtain whereby number applications appraisals for applications “2800” form Bernstein ESC, appellant Behar told her that she asked Goodwin When Cronin appraisal. for should right appraiser have the and intro- on the business made out how he duced her to the Bernsteins. Behar told there was no replied that “keys,” Goodwin her that important pay ap- was March, meeting problem. After praisers going per proper- at the rate of $50 he “on the take” and was Goodwin ty and advised the Bernsteins that since whereby in arranged plan and Bernstein Kapraki was a volume dealer she should Jet’s, were Bern- houses order to tell men, e., apprais- staff i. fullt'ime FHA “ORE,” mean- identify them stein would Goodwin, ers like properties. to handle her estate,” parties what the real ing “our Both Harry Bernstein and Rose Bernstein govern- out of the federal mine were to Kapraki informed that she would have to testimony, According Goodwin’s ment. appraisers. take care of the Thereafter accept encouraged him to Rose Bernstein Kapraki would tell Behar when she wanted Bernstein for by Harry proffered the $200 “right appraiser,” and Behar either This appraisals. top four dollar first Kapraki speak alone or with would beginning, and Government Bernsteins. The Bernsteins arrange would by the proffered was that bribes proof to have either Jankowitz or Goodwindo the many by Goodwin on Bernsteins and taken appraising, and either Rose Bernstein or occasions. notify Kapraki Behar would that Jankowitz appraisal appraising proper- was or Goodwinwould be her Providing high an initial rendered, ties on certain dates. Pursuant to their only part services bribed however, suggestions, Kapraki ap- when would meet the because in several cases praiser pay per for a reevaluation each time and him request $100 ESC submitted a Goodwin, As property. would return the files to method which the Cronin value, “right” appraisers assigned, at the there ask him to take another look saying ample appraisal of “Is that all evidence to show that words the effect ESC *8 were applications it’s worth? Take another look.” Goodwin delivered to. Cro- Herbert value, nin, desk, give would take it to his increase the who would them to or to Goodwin Cohen, with a assign and return the file to Cronin’s office. Cro- Rose direction to them prerogative, nin his to Jankowitz. There would then exercise Goodwin or was evi- CUP, dence, indeed, years an and increase the value additional that for at least two Cohen, years, through more. For four Rose who testified for Govern- $500 properties payments as to which received from 2. The referred to in the substantive Goodwin Harry may only properties ESC and Bernstein. See note 3 infra. counts have been the Bern- ment, receiving perform bribes from Rose Blow’s service. Cardona also ad- apprais- particular cases to assign Kapraki to regarding stein vised assorted other ers, and Jankowitz. On especially Goodwin techniques to insure approval, FHA such as which the bribery counts on four submitting false affidavits to substantiate proof convicted there was were exaggerated down payments, forging law- and Behar to Good- linking Rose Bernstein yer’s signatures letters, for false escrow that were Kapraki for appraisals win minimizing dependents, the number of or on three of those there was “right” and altering age of the mortgagor in the indicating Harry Bernstein’s involve- proof application Kapraki gave forms. Cardona Kapraki’s requests for ment with for each set of the $95 accountant’s false “right” appraiser. financial statements and for such a set $145 plus returns, false income tax paying which him false statement counts on usually check, in cash but Behar, by sometimes ESC, Harry Bernstein Cardona with representa- pocketing false Cardona some of money convicted all concern self-employment in for himself. employment or tions of approval mortgage for applications ESC Behar, took, Appellant said, who as we accountant’s credit, either an supported special in Kapraki’s applications, interest no verifying self- financial statements
false
doubt
profita-
because of their volume and
of em-
by false verifications
employment or
ESC,
to
bility
assigned
experienced
an
proc-
established
ployers. Government evidence
essor,
Buckley,
one Pat
whom Kapraki
had been solicited
Kapraki originally
agreed
pay
case,
at the rate of
per
$50
by way
appellant
Car-
on behalf
ESC
handle
For
them.
Behar’s own aid in expe-
dona,
mortgage salesman
the commissioned
diting applications, Kapraki paid
$50
$75
ESC,
explained
ap-
who
the basic FHA
for
per
with,
property
begin
up
then
to $200
her.
It was in
plication procedures to
per
June,
property,
finally
$250
March, 1968,
Kapraki’s
after a number of
Usually Kapraki
money
left the
purchasers
had been turned down
drawer,
envelope
cash
in Behar’s desk
FHA, that
and Behar offered to
Cardona
by way
but in a number of
instances
Kapraki
pay
assist her.
indeed offered to
Cash,
payable
Kapraki
checks
or to
per
Behar
case—an internal
$50
$75
checks,
her endorsement. These
with Be-
get
approvals. Kapraki,
bribe—to
FHA
endorsements,
har’s
were introduced in evi-
assistance,
commenced
with Cardona’s
thus
expediting ap-
dence. Behar’s assistance in
appearances
to create false
of sufficient
plications
beyond passive acceptance
went
mortgage
applica-
income on FHA
credit
Kapraki
of their content. Behar told
suggested
After
tions.
Cardona
various
mortgagors sign
applications
have her
obtaining
means of
false verifications of
and, knowing
they
in advance in blank
part-time jobs
Kapraki’s ap-
nonexistent
certifying
complete-
to the truth and
plicants, Kapraki
began
herself
to obtain
ness of
information which was
later
until she
in September-October
these
heard
typed
by Kapraki,
Behar as the chief
getting
“reputation”
of 1968that she was
supervising processing officer of ESC would
town for
around
such
service. Cardona
sign
nevertheless
the mortgagee’s certifica-
Kapraki
then told
could utilize an
verifying
tion to the FHA
the truth of the
Bronx,
Blow,
accountant in the
Walter
who
applications.
information in the
Cardona
make
would
false financial statements as to
gave Kapraki
Behar also
blank verifica-
self-employment
appli-
for the use of the
forms,
employment
tion of
in violation of
Blow,
effect,
availability
cants. The
requirements.
FHA
Behar
When
called
had been announced
Cardona’s sales
Kapraki
Bradstreet,
to tell her that Dun &
manager
meeting
at a sales
at
ESC
service,
report
was inquiring
ESC’s
present.
Bernstein was
In
why many Kapraki’s
so
March, 1969,
mortgage appli-
when Blow’s statements came
station,
cants worked at the “Bocar” service
questioned, Cardona recruited another
to be
witness,
accountant,
asked,
there,
“They
later a Government
to Behar
all work
don’t
*9
employee
disqualify Judge
davits to
Travia
never sent
because
But she
they?”
supposed
em-
accepted guilty pleas
with
he had
to check
under other
out
ESC
Kapraki not to
simply told
indictments and made certain
ployer. Cardona
comments in
time.
defendants,
all the
place
respect to other
some of
the same
whom
use
named as codefendants
coconspir-
were
and
vice
Fey,
Frank
people,
of the ESC
One
ESC,
ators of
Harry Bernstein and Rose
guilty and testified
pleaded
who
president
They
Bernstein.3
contend that under 28
Government,
inquisitive
as to
144,4 they presented
U.S.C. §
a “sufficient
delinquencies and the coin-
many
Kapraki’s
Judge
affidavit” of
“personal
Travia’s
bias
accountant,
of the same
of her use
cidence
prejudice,”
required
or
so as to have
his
many self-employments.
Blow,
verify so
to
Berger
recusal. See
v. United
Behar, “Florence,
1968, Fey told
late
In
Fey mentioned his concerns Kapraki’s transactions to being involved in The judge remarks of the which bosses, Rose Bernstein. De- Harry his and allegedly prejudice reveal were made in the stop processing spite urging his them course of Rule 11 questioning of codefend took Kapraki’s applications both of them Goodwin, ants Kapraki, Cohen and Fey position it was better to do the taking pleas the time of their and in the decide, especially business let the FHA sentencing, supra. course of see note 3 in view of the points number of ESC questioning related to the nature charging Kapraki. proof The Government conspiracy conspira and the role of various spring was in effect that at least tors, including the Bernsteins and ESC. and Rose Bernstein were con- judge those remarks characterized tent to have process applications ESC which conspiracy as “this terrible scheme” and Behar, salesman, supervisor, their their Car- scheme,” stated, great big “a “I am dona, president, Fey, and their vice knew conspiracy society sure this has cost millions phony. by way payment of dollars of taxes and otherwise, Disqualify. Ap- people get II. Pretrial and the who Motion involved pellants timely supporting very sharp- moved affi- in these houses were dealt with any party proceeding 3. The instant indictment was one of 13 re- Whenever a in a grand jury against timely turned ESC and the district court makes and files a Bernsteins, containing judge a total of about 800 sufficient affidavit before naming pending personal counts and 50 defendants. These and the matter whom has a prejudice against several other FHA-related indictments from the bias or either him or in grand jury assigned Judge any party, judge same Tra- such favor adverse shall pros- therein, via. proceed judge Eleven defendants involved in these no further but another pleaded prior guilty assigned proceeding. ecutions March shall be hear such 1973; eight of these were codefendants The affidavit shall state the facts and the Bernsteins, coconspirators prejudice and the ESC reasons for the belief that bias or exists, six were It was on sentenced. that date and shall be filed not less than ten ESC, days filed beginning Behar and Bernsteins before of the term at recusal, supporting heard, the affidavit proceeding good motion for is to be citing excerpts proceed- sentencing from the cause shall be shown for failure to file it ings guilty plea inquiries pursuant party may and from the within such time. A file one to Fed.R.Crim. P. 11. such affidavit in case. It shall be accom- panied a certificate of counsel of record stating provides: good 4. 28 U.S.C. is made faith.
785 your eyes close to these ly. You cannot can never mean to require the total absence things.”5 of preconception, predispositions and other habits, mental Judge as Frank said so much by judge the comments made Each of more felicitously in In Linahan, Inc., re 138 judicial proceeding the course of a was in 650, (2d F.2d 1943). 651-52 Cir. Of course with the defend the context of discussions such judicially acquired information or appears None of them ants before him. those natural preconceptions may lead a extrajudicial source or have arisen from judge to feel a bias or prejudice that re- opinion “resulted in the formulation of an quires him to disqualify himself —this was the merits not based what on still, or at least 5, until December judge participation has learned his when new 28 U.S.C. . .” v. 455 States proceedings enacted, . . when § however, a Sclafani, matter (2d Cir.) (refer 255 for the individual judge subjectively sentencing ence at of codefendant to re determine. Judge Travia made no maining defendants such “people here; who have determination peti- tion to poisoned your placed you existence and this court for a writ of mandamus id. at 252), delinquency,” the road of on this issue was indeed denied. point The is of no avail.6 See United v. (1973). L.Ed.2d 313 III. Sufficiency of 563, 583, Corp., False. State Grinnell ment Counts. Harry Bernstein, ESC,
1698, 1710,
16 L.Ed.2d
Be
har and Cardona
law,
contend that
belaboring
point,
rule of
without
false
statement
counts under 18
judge
judicial
what a
learns
in his
U.S.C.
under which they were
capacity
by way
guilty pleas
of
convicted failed suf
—whether
ficiently to charge a
alleged coconspirators,
codefendants or
crime.
specifi
More
cally, appellants
by way
pretrial proceedings,
argue
or
or both—
these counts
judicial observations,
fail to
proper
specify
is a
basis for
or identify the specific state
and the use of such information
ments alleged
is not the
to be false and fail
allege
disqualifica-
kind of matter
that results in
the essential element
knowledge
that the
against
tion. Rules
“bias” and “partiality”
statements were false.
Appellants
particular umbrage
Judge
Travia,
5.
take
1974),
For all
their
as identical since
(9th
counts
Bins v. United
1967);
the assorted
*11
they
only
differ
as to
States,
the same and
390,
form
cert.
(5th Cir.),
331 F.2d
393
date,
defendants named
particular
denied,
880,
149,
379 U.S.
85 S.Ct.
13
ap-
to which the
address
property
and
See Cohen v. United
(1964).
L.Ed.2d 87
Taking
25 as an
Count
relates.
plication
588,
(6th
178 F.2d
1949),
591
Cir.
(because
it is the
count
in
example
denied,
cert.
920,
623,
339 U.S.
70
94
S.Ct.
appellants
these
four
which
(1950).
L.Ed. 1344
While some identifica
convicted), we set it out in the
Borland,
United
v.
States
required,
tion is
that Count 25
We note
identifies
margin.8
280,
(D.Del.1970);
Unit
F.Supp.
309
287-89
involved, that
false document
particular
Laboratories,
ed
v. Devine’s Milk
States
mortgage
is,
application for
insurance
an
Inc.,
(D.Mass.1960),
F.Supp.
179
799
it is not
respect
particular property.
to a
It
necessary
go
that the indictment
itself
into
noted that
the Government
may also be
evidentiary
fully
matters.
offense was
particulars which specifi-
a bill of
provided
clearly charged,
since the indictment
the statements in the docu-
cally identified
specified
place
the time and
of the transac
which the Government would seek to
ments
a particular
tion and the submission of
false
copy
A
false at trial.
of the “Form
prove
application
respect
particular piece
in
to a
for each false statement count was
2900”
Alo,
United
States
property.
v.
439 F.2d
to the
with the statements
submitted
751,
(2d Cir.) (indictment
756
for obstruct
alleged
to be false circled
red
ing justice by giving
“false
evasive
court.
although
answers” before SEC sufficient
We do not find
violation of either the
answers),
not specifying the false and evasive
Amendment
Fifth or Sixth
United
denied,
rt.
850,
404
92
U.S.
S.Ct.
ce
Constitution or of Fed.R.Crim. P.
States
86,
See also United
(1971).
F.2d
203, parent
Davenport, 478 F.2d
conflict could
seen
v.
court to
ex rel. Hart
significant
indicate a
v. Fos
probability of
United States
1973);
preju-
(3d Cir.
209-10
dice. The
of the attorney,
freedom
v.
whether
Lollar
(1st
1972);
ter,
cross-examination
assertion of the de-
U.S.App.D.C.
376
authority,
fense of lack of
could have been
1967). Choice of counsel
(D.C.Cir.
F.2d 243
and uncompromised
inhibited and a full
de-
unnecessarily obstructed
not be
should
fense of his clients’ interests have been
Sheiner,
v.
United States
court,
seriously impaired. While
Judge
neither
denied,
Cir.), cert.
U.S.
F.2d
Travia nor
in any
this court
manner ques-
(1969),
L.Ed.2d 76
but
90 S.Ct.
integrity
tioned
Mr. Boitel or his
possibility
where there is
serious
assurance
give
that he would
Behar full and
arise,
interest will
conflict of
definite
proper
representation
regardless of who
judicial
necessities of sound
administration
him,
paying
the court
special
had a
to take
require the court
command of the
duty
to make
certain
waiver was
Dardi,
situation. United States
knowingly
made.10 See
intelligently
(2d Cir.),
DeBerry, supra,
50, 13
The stan-
L.Ed.2d
at 452-54. But cf. United
States Wis-
*13
Bar Association have
dards of
American
niewski,
1973).
A
increasingly
subject.
strict on this
become
waiver in
is
regard
quickly
this
or light-
Relating to the
See
ABA Standards
Prose-
ly to be found. See Glasser v. United
cution Function and
Defense Function
States,
70-71,
supra, 315 U.S. at
at
3.5,
1971).
(Approved Draft
at
§
464-65,
at
699-700. The
L.Ed.
court’s
also P.
Wilson, Pattern
See
Rules of Court
interrogation
Behar
of Mrs.
established that
(prepared
for
and Code Provisions
she was not
prepared
have the court
Implementation
the Committee on
of Stan-
nothing
stand
and do
the event an
of
dards for
Administration
Criminal
actual prejudicial
part
action on the
of her
of
Justice of the
Criminal Justice
Section
lawyer
words,
other
arose.
her
In
waiver
ABA, 1975).
strings.
was not without
The district court
Plainly
probability
there was a
here
matter,
think,
handled
we
quite
correct-
conflicting
and inconsistent defenses
ly, and Mr.
withdrew quite correctly.
Boitel
upon
and individual
corporate
based
liabili See United
v. DeBerry, supra;
Unit-
ty,
employee
since as an
Behar
ESC
Dardi, supra.
ed States v.
We
nothing
find
stand
present
could well take the
and
in the record to indicate that Mr. Rosen-
employers
guilty
defense that
were the
her
krantz did
other
anything
than what highly
only obeying
ones because she was
the or
competent
do,
would
nothing
counsel
and
superiors
following
ders of her
stan
prejudice
indicate
to appellant
from his
they
procedure.
part,
office
On their
dard
infrequent
short
absences.
lengthy
On this
could assert
the defense
Behar had
trial all
pinch-hit
counsel
to a limited extent
Indeed,
another;
on her own.
daily
acted ultra vires and
for one
copy of the proceed-
ings
these were the ultimate defenses advanced
was available and the district court
kept
codefendants
all
by each. Since the
were un
counsel well informed
open
and left
comprehensive,
Judge
questioning
great
Travia’s
showed
left —it is so
there is so much
sensitivity
gauging
digest,
my
for
to the need
the “know
I
know if it
don’t
can be done to
qualities
ing
intelligent”
appellant
Be
comfort.
waiver,
must have been
har’s
and it
statements
following
gave
him
of hers such as the
sign
willing
I am
a waiver
I
because
pause:
least,
type
know the
I feel I know the
—at
position
type
frightening
I am in a
so far as I am
is.
Mr. Boitel
addition,
part
concerned.
I
never before been a de-
In
has
he
been
of this case
certainly,
changed,
attorney,
fendant and
case has
this
sixteen months. The new
who-
be,
my
my
might
life and
husband’s life .
.
.
ever he
is an unknown
factor
ap-
attorney
say,
If
is an involved case.
is
me.
I know Mr. Boitel well
I
and as I
pointed
exceedingly frightened.
am
and we have about
two months
originally
indictment
motion as counsel
named 21
right
to make
individual
corporate
and two
defendants and consisted
wished.
of 211 counts. After
pretrial
assorted
pro-
Impermissible
V.
Joinder
cedures, pleas
guilty,
nolo contendere
Appellants
Motions.
Denial
Severance
severances,
and assorted
the case went to
Bernstein,
Bernstein and ESC
Rose
trial with nine
Furthermore,
defendants.
their convictions on
contend that
all
as a result of a
motion
the Government
reversed on the
bribery counts should be
to sever various
counts and
direction
joinder
impermissible
grounds of both
by the court
limit
counts,
the number of
and erroneous
offenses and of defendants
the number of counts was reduced to 65.
motions. But
is
denial of their severance
that,
We
regard
believe in this
subject only
that under Fed.R.Crim.P.
well established
legal questions
whether
there was
8(b)11 joinder
multiple
defendants
here charged
proved single
conspiracy
alleged
partici
if
are
to have
proper
and whether there
prejudicial
was a
vari-
which are
in the same series of acts
pated
ance from
such a
and the actual
plan,
or con
of a common scheme
part
proof, the basic underlying admonitions of
joinder
conspir
of a
together. Here
nected
Sperling, supra,
counts aris
and the substantive
acy count
1340-41,
have been followed.
proper
since the
conspiracy
out of the
ing
VI. Sufficiency of the Evidence. ESC
conspiracy provides a common
charge of
contends that
there was insufficient evi-
of a
demonstrates the existence
link and
dence to establish an intent to benefit it so
Wright, Federal Practice
plan.
common
C.
support
as to
its conviction on the substan-
(Criminal)
at 322
Procedure
tive counts charging bribery
proper-
on Jet
v. United
(1974). See Schaffer
aiding
ties and
and abetting briberies on
945, 947,
511, 514, 80
4 L.Ed.2d
Kapraki properties. Appellant Rose Bern-
(1960);
Miley,
United States v.
513 stein contends there was a
*14
proof
failure of
1191,
(2d
1975);
Cir.
United
support
to
her conviction of aiding and
Granello,
990,
(2d
v.
365 F.2d
States
abetting Kapraki’s payment of bribes to
denied,
1019,
1966),
cert.
386 U.S.
Appellant
Goodwin.
Behar contends that
1367,
(1967). Joinder
through may and that his bribes L.Ed.2d 744 Although *15 only viewed as acts with the intent to fur may Behar not authority have had the to profits. ther Jet’s and thus his own But stop processing Kapraki’s applications, she reality of an inextricably evidence authority did have report irregularities. ignored dual intent could not have been Her failure to do so in Kapraki’s the face of jury: That the intent benefit delinquency rate and heavy use of the same interests, Jet’s ESC’s interests as well as accountant, (whose Blow financial state profits inevitably of whose in both would March, 1969, ments were in perma declared personal to Bernstein’s benefit. ure Here nently unacceptable Fey), at ESC to again approved mortgagee ESC was the gether with the other evidence outlined process applications, used Jet’s and if above, was sufficient support Behar’s approved FHA, by the ESC conviction on the false statement counts. profit gross would stand to make a on each Appellant Cardona ruling it was in the interests of seeks a
property;
ESC
that a
verdict
appraisal
guilty
may
a favorable
from
obtain
Goodwin
rest
Furthermore,
testimony
to have each
uncorroborated
accomplices,
deal closed.
greater
light
each
our decision
property,
the evaluation of
in United
v.
States
higher
might
(2d
mortgage
Taylor,
1972).
amount
be
791
Tramunti,
supra, 513
1105-07;
cert. de
Cir.),
(2d
F.2d at
Feinberg,
VII.
FHA employee,
the same
Goodwin. The
while
argue vigorously that
appellants
All
pattern
conspiracy
here thus does not
single
con-
indictment
that of the independent conspira
resemble
multiple
proof
at trial showed
spiracy
cies in Kotteakos v. United
except Cardo-
conspiracies.
All
(1946),
where
acy was
to sit
through
forced
weeks of
agreement
of the
made
scope
the
damaging evidence”
relating
others.
the issue
particular defendant and
has
Miley, supra,
v.
United States
513 F.2d at
importance,
ap-
the court
practical
must
points
1209. Cardona
out that one month
jury’s
focus the
attention on
propriately
at trial
the
prerogative
concerned
CUP
rather
allow it to
issue
than
decide
that
Cronin and
month the bribing
one
of Good-
all-or-nothing basis as
all de-
on an
Cronin,
noted,
win.
it should be
was not
fendants.
convicted,
own
and Cardona’s
participation
exactly
n.
F.2d at 386
4. This
what
in the false statement scheme was so sub-
case, just
court did
as it had
the trial
in our
stantial
that
in a nine month trial we can-
Judge
to do
Borelli.
Travia
omitted
any significant
not
find
prejudice from
jury
find
charged the
that it could
Cardona
bribery testimony which the jury was in-
conspiracy
a member of the
if the
to be
repeatedly
structed
did not connect Cardo-
agreement
one of the
scope of his
included
na to the conspiracy.
that
provided
jury
the
objects
conspiracy,
single conspiracy
The appellants
found that
the
first
and Rose
Bernstein,
scope
exist
that
the
argue
did
and Behar also
that
ESC
least
two
the
the
made
at
trial
failed
agreement
properly
court
to instruct
objects
jury
a single conspir
both
of the
the
that
it must find
conspirators included
Levinson,
v.
acy
multiple conspiracies.
See United States
How
conspiracy.
989;
ever,
explained
at
United States
court
essential ele
supra,
327;
ments of
Dardi, supra,
conspiracy,
330 F.2d at
the crime of
focused
F.2d
Benjamin, supra,
jury’s
compliance
at 864.
attention in
with Bo
supra,
importance
510 relli on
Papadakis,
determining
Cf. United
297;
Arroyo,
494 whether
United States
each defendant became á member
F.2d
Cir.),
conspiracy
scope
of the
and the
his or her
agreement,
jury
the
it is
always necessarily
While
not
wise to
proved.
had been
fact,
jury
draw
the
conclusions after
the
this case does
to
Mismanage
seem
have acted with
Prosecutorial
VIII.
extraordinary
sophis-
conscientiousness
is that
the
claim
The
ment.
tication. From
to time it
trial
the sheer
time
asked for
of a fair
deprived
exhibits,
pros
parts
relevant
allegedly
caused
the
for
of
length
trial
of the
read,
charge
We
al
mismanagement.
specifically
even
ecutorial
however,
stated,
ready
charge regarding particular
Govern
counts and
anticipated
defendants,
here
what
court
particular
indicating
ment and the
that it fo-
v. Sperling,
United States
was said in
cused on each count and each defendant
com
the instant
trial had
supra,
jury
after
The
separately.
acquitted one defend-
of
menced,
severing
number
defend
ant and was not able to reach a unanimous
counts,
ants,
reducing the number of
verdict as to three other
who
defendants13
making
relatively manageable.
case
figures
central
the scheme.
is,
course, always
3, supra.
It
note
See
Appellant
appellants Harry
ESC and
Bern-
spillover and
be some
true that there can
stein and Rose
acquit-
Bernstein were each
conspiracy
net
resulting when
prejudice
bribery
ted on three
Appellant
counts.
Be-
wide,
many
in too
cast
and draws
too
acquitted
har was
on one bribery count.
hearsay state
many
and too
participants
performance by
jury
Such a
ap-
belies
Kotteakos v. United
ments. See
pellants’
length
claims that the
of the trial
1252,90
at
at
supra, 328 U.S.
complexity
and the volume and
evi-
at
also United States
L.Ed.
1571. See
dence disabled its members from evaluating
Dardi,
at
The
supra, 330 F.2d
ultimate
applying
the evidence to the individual
whether
number of defend
question is
defendants.
prevents
of the case
complexity
ants and
is, furthermore,
This kind of crime
ex-
appraising the
independent
from
traordinarily
prove.
difficult to
It must be
met
against
evidence
each defendant and
proven
pieces.
in bits and
If it is broken
justice
out
under the law.
ing
individual
many
down
too
charges,
into
too isolated
Stromberg,
See United
transactions,
many
too
fragments, the con-
(2d Cir.),
cept of the
is impossible
compre-
crime
L.Ed.2d
hend.
prose-
We think that a conscientious
was,
course, necessary
present
Here
issues,
managed
cution
to delimit
nar-
background
good
deal of
evidence
both
trial,
yet
row the
satisfactorily
demon-
operations of the FHA and the
show the
pattern
strate a
which constituted the over-
in which these criminal activities
context
prosecutorial
all crime. The claim of
mis-
necessary
place, and it was also
took
is,
view,
management
our
utterly
without
to a
num
introduce evidence as
substantial
merit.
present
of transactions in order
ber
scope
IX.
nature and
The District Court’s Inter
true
criminal
issues,
rogation
bribery
on
other
of Mrs.
Appellant
Cardona.
Car-
scheme.
hand, ultimately
questions
argues
deprived
down to
dona
that he was
boiled
fair
witnesses;
credibility
interrogation
on the false
trial as a result of the
court’s
knowledge
falsity
Compare
counts
was of Mrs. Cardona.
statement
exists,
Blackmar,
charge
'conspiracies
in the indictment
and that
Feder-
E. Devitt & C.
scope
agreement
29.14,
made
least
Jury
al
Practice and Instructions
29.-
§§
objects
two of the defendants
included both
(1970 ed.).
conspiracy.
supra.
13. See note 1
adapted
conspiracy
from
concerning multiple
suggested
instructions
*19
estimation,
In our
in these passages the
Nazzaro,
1973),
(2d Cir.
F.2d
indicating
court was not
its belief in the
supra, 513 F.2d
Miley,
with United States
guilt
defendant’s
or its disbelief in the wit-
Natale,
also United States
at 1205. See
testimony,
ness’s
nor was it pushing Mrs.
1975).
(2d Cir.
1169-1170
altering
testimony.
Cardona into
The
taking
events
interrogation concerned
This
testimony was unclear and it needed clari-
its investi-
the FBI commenced
place after
point
At one
the court
fying.
either misun-
August,
In
Car-
of this case.
gation
or
clearly,
derstood
did not hear the witness
agent
at his home with an
dona had met
surely
unforgivable
not an
sin in the course
FBI,
Later that
Sniegocki.
James
the
one
with,
lengthy
of a
trial
far
appears,
so
as it
house in
day Kapraki came to Cardona’s
might
a witness who
have been difficult
to
call and Mrs. Cardo-
response to the latter’s
The
phrase
understand.15
witness’s
“ac-
examination,
relate, on direct
began
na
to
cording to the
my
conversation that
hus-
of the conversation between
the substance
agent Sniegocki”
band had with
was also
attach extracts
Kapraki and Cardona. We
susceptible
interpretations.
to assorted
The
margin.14
the
Cardona
testimony
this
trying
court was
to determine whether Car-
inter-
subsequent
court’s
asserts
telling
Kapraki
dona was
Mrs.
to tell the
cross-examination,
a “vicious”
vention was
FBI
agent
what he had told the FBI
testimo-
in the witness’s
indicated disbelief
whether
had
Kapraki
Cardona
told
that she
put words in her
attempt
and was an
to
ny
would be better off if she confessed without
lawyer.
“no,
When the court said
no.”16
mouth.
right
now in
interested
What,
I’m
anything
happened
The Court:
Q.
else
dur-
14.
if
your
Kapraki,
between Mrs.
the conversation
ing that conversation?
par-
your living
you
room or
husband
keep asking
please
My
her to
A.
husband
lor,
you
it.
call
do it without her
to talk to the FBI and to
they kept—
lawyer and
right.
said to
He—he
Witness: All
The
it,
To do what?
The Court:
The Witness: Without
her—It
Kapraki
better for
that it was
Ortrud
lawyer.
her
confess
for her to
was better
to
was—It
lawyer?
The Court: Whose
lawyer.
without her
FBI
Kapraki’s lawyer.
The Witness:
supra regarding
words,
the context
your
note
15. See
In other
husband
The Court:
inquired
interrogation
toas
telling
where the court
law-
her what to do without his
was
speak
lawyer Kapraki
told to
to
yer?
whose
testimony
Throughout
lawyer.
without.
The
Without her
FBI
Mrs.
evidently
Witness:
Cardona,
comprehension
audibility
lawyer?
her
The
Without
Court:
voice,
According
difficult
a soft
the conversa-
made
The Witness:
Agent Snieg-
my
speech,
language
or a combina-
rapid
barrier
husband had with
tion
up
speak
at
She was asked
ocki.
of these.
tion
least five
testimony.
Kapraki
Mrs.
to tell
course of her
The Court: He wanted
times in
Sniegocki
your
Agent
what
husband told
cited,
supra,
you
Sniegocki,
Following
colloquy
that what
mean?
note
went on to ask:
the court
My
Witness:
husband asked Ortrud
something
The
earlier
You said
The Court:
said,
Kapraki,
Ortrud,
he
“Please
FBI,
in his own words
about,
something
her
about
he told
wrong,
you
something
if
have done
way
something
I
in accordance with
you
by your-
FBI
it’s better that
talk to the
him,
you
by that?
what did
mean
talked
self,
way you
will feel better.”
because
According
Agent
Witness:
to what
The
my
Sniegocki
husband.
asked
you
something
No,
Then
said
The Court:
no.
The Court:
Honor,
submit, your
accordance with—
that is an
I
Mr. Klein:
Because—
The Witness:
answer.
you say
Yes, your
that?
The Court: Did
The Witness: Yes.
The
Honor.
The Witness:
The Court:
Say
again.
said,
Agent
“In
According
Your husband
accord-
Court:
to what
The Witness:
my
my
ance with
conversation
Sniegocki
[sic].
from
husband.
have asked
repeat
me to
it?
The Witness: You want
The
your husband told
is what
Court: That
Yes.
Court:
her?
Yes, you
repeat
want me to
The Witness:
Witness:
Yes.
husband,
my
with
with
the conversation
may proceed,
Klein.
Mr.
The Court: You
Sniegocki—
Benjamin,
he
indicating that
supra, 328
simply
judge
as to the
at 862-63.
testify
See
United States
Squires,
witness
wanted
conver-
Kapraki,
1971)
(in
with
areas
conversation
end even
In the
Sniegocki.
of fiduciary responsibility
with
under the securi-
sation
mat-
clarification
attempts
ties
“persons
laws
issuing statements are
counsel
that Cardona’s
muddled
was so
ter
under an
duty
affirmative
investigate,
*20
A
again.
conversation
entire
over
went
and it is entirely appropriate to include
re-
has,
we have
as
judge
district
federal
‘shouldhave known’ within the definition of
clarify
attempt to
said, duty to
peatedly
”). ESC,
‘know’
Bernstein and Behar knew
jury
get the
testimony and to
the witness’s
the FHA was relying on the Form
evidence. See
understand
submitted,
2900’s
the mortgagee’s
cer-
Judge Travia’s
Natala, supra.
tificate’s declaration that
the information
no claim
can sustain
intervention
limited
was “true and complete to the best of its
by Cardona.
prejudice
knowledge and belief” carries
obliga-
this
tion at least.
Charge
X. The
on the False State
Perhaps appellants’ strong
ment Counts.
problem
is that the court went
is,
argument
especially
est
judge by
if we
on to attempt
to describe the duty of the
dissent,
respect
charge
in
on the
parties, of ESC as an FHA-approved mort
ESC,
false statement counts.
Harry Bern
gage lender and of Bernstein and Behar as
stein and Behar all contend that the trial
key
such,
officers of
with the
pur
evident
charge
court’s
on the element of “knowl
pose
give
the jury some standard for
edge” applicable to the false statement
determining whether there was such a reck
counts and the
object
false statement
disregard
less
of the facts as to amount to
conspiracy was erroneous. The court alter
knowledge of the falsity of the Form 2900’s.
natively charged “knowledge” in terms of
Judge Travia originally said that the duty
“conscious avoidance” and “recklessness”
was “to insure” that the statements made
and it
portion
“recklessness”
here
application
true,
apparently
attacked.17
borrowing
phrase
from
opinion
our
Following proper instructions that
Andreadis,
States v.
423,
366 F.2d
specific intent
necessary
proof
was
(2d
430
1966) (an
Cir.
ground
alternative
negligence
convict,
mere
insufficient to
holding that the
proved
Government
knowl
court
that the element of knowl
edge
falsity
was that
the defendant
edge
proof
beyond
satisfied
a rea
totally
failed
discharge
duty
“affirmative
sonable doubt that a defendant recklessly
to insure” advertising claims were true),
things
stated as fact
igno
which he was
denied,
1001,
cert.
703,
U.S.
87 S.Ct.
rant or
disregard
acted with a reckless
(1967).
L.Ed.2d 541
Conceiving, correctly
whether the statements made were true.
think,
we
“duty
to insure” rather
Despite appellants’ vigorous protestations
mortgagee’s
overstates the
responsibility—
contrary
we have no difficulty in
“reasonably to assure itself” would be more
finding
charge just
such a
proper
here as
judge
accurate—the
proceeded
below
in the case of Securities Act violations. See
charge given
avoidance
17. The conscious
We should add that use of the “reckless dis-
Brawer,
proper
regard”
482 F.2d
charge
under United
in this case is not inconsistent
denied,
117,
1973), cert.
128-29
Cir.
Bright,
with United States v.
overlook
presupposes
mortgagee perform-
an honest
it was a crime
charge did not indicate
ing
investigation
initial credit
with due
judgment”
“proper
to exercise
diligence
making
judgment
the initial
equate failure to do so
and did not
good
to lend in
faith after due consideration
Rather,
of the truth.
disregard
reckless
*21
of the facts found. The trial court in our
of
charge was that
the crime consisted
view
charged
could have
that ESC had com-
submitting
application
con
knowingly
law,
mensurate duties as a matter of
that
proof
and that
taining a false statement
Harry
principal corporate
Bernstein as
offi-
falsehood was insufficient.
negligent
mere
also,
cer did
and that Florence Behar as
we
it was that in deter
charge
The
read
charge
processing mortgage
officer in
disre
mining whether
there was reckless
signing
mortgagee’s
loans and
the
neces-
falsity such as to
of the statements’
gard
sary
application
certification of the
as “true
knowledge,
jury
to
it was for the
to
amount
complete
knowledge
to the best of its
mortgagee
had
whether as
ESC
determine
and belief” did likewise. It is our view that
mort
duties in connection with
affirmative
delimiting
by defining
those duties
them as
If such
guaranty applications.
loan
gagors’
investigate”
“good
duties “to
and to use
found,
poten
were
the existence of
duties
judgment”
description
credit
was a fair
question
still a
of fact.
tial recklessness was
responsibilities
the
inherent
the relation-
charge
gave
as such
the defendants
ship
FHA,
the
between
defendants and the
they
that to which
were entitled.
more than
as we have above described it.
an FHA mort
sayWe
this because
Thus,
reiterate,
phrase “proper
the
approved
even be
unless he is
gagee cannot
judgment”
credit
simply
was used
mortga
to service the
“responsible and able
defining
context of
the affirmative duties
1709(b)(1), 17157
gee properly,” 12 U.S.C. §§
mortgagee
the FHA
has.
In leaving to the
regu
the
(d)(1).
mortgagor
A
must under
jury the question
whether
duties exist
approved
establish in an
standard
lations
ed, duties which we think it
form,
plain
the
24 C.F.R. 203.11 that the
application
law,
mortgagee had as a matter of
means,
the
within his
mortgage payments are
203.34,
appellants
obtaining
were
the benefit of a
203.33,
221.1. That
24 C.F.R. §§
charge more favorable than that
to which
a certificate
specifically requires
form
Appellants
rely
were entitled.
“all information in the
on
mortgagee that
the
Guterma,
United States
complete
is true and
to the best
application
Cir.),
denied,
cert.
knowledge and belief.” Under the
of its
mortgagee,
(1960),
analogous civil case law the
L.Ed.2d
for the
knowing
“relying
proposition
duty
that the federal insurer is
that
if the matter of
was
charged
jury:
[Ijf you
18. The court
the
find
there is such an affirmative
duty,
recklessness,
then the standard
may
program places
find
the FHA
[Y]ou
earlier,
applicable
which I mentioned
to the
(Eastern
duty
mortgagee
the
on
Corporation,
defendant
Eastern
Service
Bernstein)
investigate
proper
and exercise
approved mortgagee.
which is an
judgment
respect
credit
to statements
finding
duty”
applications
mortgage
Absent a
of “such an affirmative
insur-
contained
jury
acquit
the
was in effect directed to
without
to the FHA.
ance submitted
jury:
reaching
then told the
The court
recklessness.
should
jury
all it
to be
could well
going
weigh their credi
law.19
a matter of
In
charged as
bility
been
lack
pointed
or
of it.
court
out
to determine the exist-
jury
permitting
the principal differences in the evidence as
however,
here,
court
ence
duties
appropriate
g.,
defendants —e.
Rose
clearly
the crime
consist of
always
stated
Bernstein’s lack of connection with the
recklessly
of which
mort-
stating facts
false statements and
lack
Cardona’s
of con
acting
with a reck-
ignorant
gagee
nection with the briberies. Cf. United
facts stated
disregard of whether the
less
Aloi,
at 598-99
see, therefore, how
were
We do
true.
Cir.),
rights were in
substantial
appellants’
447, 46
L.Ed.2d 386
It also stressed
on
exercis-
any way affected
the importance of individual determinations
jury
If the
judgment.”
ing “proper credit
count,
as to each defendant on each
a mat-
(to
there
duties
investi-
decided
ter scrupulously
observed
jury
if we
judgment),
gate
proper
and to use
are
judge
inquiries
from its
and verdicts.
no worse off than if the
appellants
See
note
VIII supra.
Part
initially charged them that there
court had
While
evidence here
complicated,
law,
a matter of
as we
were such duties as
(cid:127)
extensive,
or at least
the issues were not.
could have.
If the
decided
think it
counts,
bribery
On the
observed,
as we have
duties,
such
were no
affirmative
that there
essentially
issue was
of credibility
one
were,
course,
much
then the
false statement counts knowl
they would have
better
been entitled
off—
edge
By
the falsity.
circling
in red
according
judge’s
acquittal
in-
*22
statements on the
Form 2900 credit
They
applica
have in
event
structions.
not
tions which were claimed
prejudiced.
(and
been
false
practical
for all
purposes
be)
admitted to
XI. The Trial Court’s Inten
the court accomplished a lot more than
tional Omission to Marshal
the Evidence.
charge
words in a
could have done to direct
appellants complain
the length
While
of
jury’s
the
attention to the critical facts.
trial,
prolixity
complain
of the
also
Here as in United States v. Hyde, 448 F.2d
charge
of the court’s failure
the
to sum
815,
(5th
1971),
842
denied,
Cir.
cert.
404
matter,
marize the evidence. This is a
sure
1058,
736,
U.S.
92 S.Ct.
799 detail, he would transactions Appellant separately Behar com them to a discussion himself committed plains prejudice by portion virtue of that surely have laid all; he would otherwise charge finding that conditioned a empha- undue charge open to himself the guilt of Cardona or Bernstein as are in Cohen Hand’s words Judge sis.” aiders and abettors of the false statements here: applicable equally upon a finding guilt principal as to the exercise has country [I]n (Behar, ESC). But it is the law that a marshal power evidence] [to person guilty aiding cannot be found power it- but the obligatory, been never abetting principal unless a whom he has suspect. It has been somewhat self aided and abetted committed criminal complaining an accused strange to hear City act. See v. of Birming Shuttlesworth failure; may we be assured of such ham, 1130, 10 U.S. 83 S.Ct. L.Ed.2d used, that, had been power if the Hoffa, (1963); United States louder, and would have been complaints aff’d, (6th 1965), certainly grounded. almost better (1966). 87 S.Ct. L.Ed.2d F.2d at 93. Bryan, But cf. United States 1973) (not necessary that Appellants Points. XII. Other principal be tried and convicted or even complaints three about make identified); Provenzano, The first the briberies. aiding abetting (3d Cir.), grouped the assorted de the court 440, 13 L.Ed.2d 544 together, as with ESC associated fendants Surely Behar and were the principals ESC (the FHA other defendants it did assorted phase false statement of the case. reporting defend defendants, the credit proof While the guilt of Cardona’s however, sense, ants). this made We think overwhelming, perhaps, preju there was no was in conclu jury note also Behar; it is not without significance dice as to individual verdicts sion instructed such count Behar on one was named each count defendants on particular and convicted while Cardona was not even objection is that The second called for. named. We have previously commented on pay found a charged that if the court *23 jury’s to view the evidence with ability con appellants’ made by Kapraki ment was follow; discriminating eye. entirely out of viction must this is context, however, gave a because the court my on which Finally, point and this is a regarding aiding and charge correct appellants Harry disagree, brothers and I abetting Kapraki; only setting out argue Bernstein and ESC certain complicated elements of the lesser offense multiplicitous (ap- bribery counts were giving gratuity say “you did the court pellants erroneously “duplici- use the term respect should determine with to each de tous”). occasions Bern- On four different payment fendant whether or not paid lump sum for several stein Goodwin money corruptly was made [elsewhere per appraisal, property appraisals $50 defined],” you beyond and “If are convinced thus, on example paying for him Octo- $350 payment a reasonable doubt that the was so 1967, 6, property appraisals. ber for seven made, you then must convict the defendant problem payment The while one is that on that or defendants count.” We view this occasion, appel- this money was made on court, The perfectly proper. contrary to (and counts charged lants were five inci- argument, third appellants’ did what $10,000 Bernstein fined for each dentally could be considered acts of aiding acts $20,000 each, count for note 1 and ESC abetting.20 lump supra). totality In four sum pay- The court stated claims this was done Government coun- selling payment of monies these men and counselling by arranging aiding abetting assigned with have them to Mrs. payment Kapraki’s Edward of bribes to Goodwin and cases. Joseph Jankowitz and the the defendant
800 201; counts. in convictions on 11 constituted resulted offense under it
merits § are no offering as to which there also the promising pay. The or The —one point proof whether each directly established that Harry cases Bernstein —is or promised pay constituted one crime lump payment “top sum each $50 dollar” several, many. Ap- appraisal transaction or which single Goodwin made. agrees, and the writer pellants argue, separate Government offered proof with re- 201(b) it corrupt is the gard property 18 U.S.C. each § under establish that act that, result, essential criminal on been gift which is the had over-valued and as a donor, though it be with a fraud been part had committed the Unit- (and several criminal acts payments intent to induce ed States. That were thereafter severally might punished under 18 U.S.C. made in which installments sometimes ex- See 201(c) part donee).21 require on the did ceeded $50 number of § States, v. generally Ladner United statutory violations. The “official act” 209, 214, 178, 199, 169, 3 been improperly S.Ct. L.Ed.2d which had influenced un- States, (1958); Bell v. United 205-06 der 201 was the appraisal of each proper- 84, 620, 622-23, 81, ty 99 L.Ed. U.S. which a commitment was made for J.). (Frankfurter, 905, (1955) 910-11 FHA mortgage insurance. We have in short colleagues entirely take the reviewed the
My
ra
extensive
and,
record
with extremely
view and it
careful
and different
is therefore
tional
thorough argumentation
counsel,
opinion
separate
court
of
con-
sidered
legal
out of the same transac
may
points
fenses
arise
numerous
arising
alleged
necessarily
where each of the
out
very lengthy
tion
offenses
trial.
are
proof
persuaded
of some fact
element not We
requires
that the matter was han-
Al
See
greatest
to establish the other.
dled with the
required
of care
the trial
States,
11,
brecht United
judge,
v.
high competence
U.S.
by both
253-54,
71 L.Ed.
counsel,
Government
defense
and with
Tarrant,
(1927);
painstaking consideration of individual de-
1972); Moeller United
(5th
Cir.
fendants and counts
the jury, under
States,
(5th
1967);
were,
instructions that
if anything, favor-
450, 452
Newman United
able to the accused.
the legal
Several of
Michelson,
(6th
1954);
troublesome;
indeed,
points were
we are
aff’d,
Cir.),
simply payment of the money judgment is affirmed. 21. The indictments here were for violations of official to do or omit to do act in viola- *24 201(b). 18 U.S.C. § That section makes it a duty tion of his lawful . . person crime whenever a recipient It is also a crime for the of the bribe directly indirectly, corruptly gives, or offers who promises anything any public or of value to being public person a or official selected to person or official who been to has selected be public official, directly indirectly, be a or cor- official, public promises any or offers or asks, demands, ruptly exacts, solicits, seeks, public any person or official who been has receives, accepts, agrees any- or to receive public any- give selected to be official to thing any of value for himself or for other thing any person entity, of value to other or person entity, or return for with intent— (1) being performance influenced his (1) any act; to influence official or any act; official or (2) public per- to influence such or official (2) being or influenced commit aid in public son who been has selected to be a committing, in, allow, any or to collude or committing official to commit or aid in or fraud, opportunity or make for the commis- in, allow, fraud, any op- collude or or make any fraud, States; sion of on the United or portunity fraud, any for the commission of (3) being any induced to do or omit do States; the on United duty act in violation of his official (3) . public to induce such official or such 201(c). 18 person U.S.C. public who has been selected to be a
801
GRAAFEILAND,
Judge
falsity
the
of the statements at issue
Circuit
VAN
However,
judge
herein.
the
instructed the
(dissenting):
jury
unnecessary
that
it
is a wonderful-
judgment”
“Proper
prove
certainty
to a
Government to
business-
phrase, portentous,
impressive
ly
a statement was
these defendants knew
readily
rolls
off
one that
phrase,
like
that, although knowl-
charged
false. He
in their
and financiers
of bankers
tongue
by proof
be established
edge could not
But, what
and at their clubs.
rooms
board
if a
might
be found
negligence,
mere
which
The statute under
it mean?
does
high probabili-
aware of the
defendant was
ref-
convicted contains no
defendants
false,
that a statement was
unless
ty
in-
judge never
to it. The district
erence
that the state-
actually
defendant
believed
meaning.
its
We
jurors
as to
structed
on
charged
ment
He
further
was not false.
have no idea how these twelve untutored
avoidance.
theory
of conscious
Last,
least, my
it.
but not
laymen defined
majority
enlighten
fail to
us
brothers
at that
Judge
stopped
If the District
had
interpretation.
yet,
And
with their
fault to find. Unit
point, I would have no
undefined,
uninter-
unexplained and
phrase,
(2d Cir.
Bright,
in the true.3 that such statements were to “insure” on conspiracy Defendants indicted alleged and substantive counts for viola- never judge specifically district did provides of 18 tions U.S.C. which in clearly the word “insure” from and delete pertinent part as follows: charge, even the although prosecution his . . purpose His last Whoever . for the urged that he do so. instructions any way action influencing in the before it retired were: to the [the Housing Administration], makes, Federal clarify the Now, I asked to also was utters, passes, publishes any or state- you concerning that the charge gave I ment, knowing false, the to be same duty. affirmative . shall be impris- fined [and/or I will recall that referred to affirma- You oned]. duty question fact being tive for Defendants were not indicted for viola- [places] determine if the FHA you to tion instructions contained in the FHA duty affirmative on various defendants. mortgagee’s manual or handbook.4 Nor clarify I like to the nature of that would could they Supreme has, be. The court may duty you may or not find pointed again, time and out the difference exists. imposed between legislatively duties and Service, Harry As to Eastern Bernstein imposed those and administratively has held Behar, is, one, Florence the charge crime, that the is “[w]here duty there a investigate and exer- legislative must have clear basis.” United proper judgment cise credit respect with 14, 22, v. George, 228 U.S. to statements applications contained in 412, 415, (1913). L.Ed. mortgage for insurance submitted to the of an contents administrative manual or FHA? [R. 21618]. handbook “cannot add to the terms of an quoted pertinent portions I have the of Congress act and make conduct criminal in the court’s above and the district which such laws leave untouched.” United margin might so that the reader draw his Inc., Brewery, Standard its 210, 220, as to fair- preliminary own conclusions 139,141, 64 L.Ed. My accuracy. own comments fol- may ness and One convicted for headings. wrongful appropriate low under conduct “defined by statute or by Now, light Housing National cable to the 3. defendant Eastern Service Cor- read, Act, part poration, of which I and about which approved mortgagee. which is an testimony you Hipps, regard from Mr. I be- heard You also should in that consider Sanders, lieve, possibly persons played Mr. the Federal what setting role the policy regulations eligi- Corporation set which were forth in of Eastern Service with requirements approval mortga- respect applications, bility per- for to credit and what applications responsibility sign gees son had mortga- who submit FHA and gee eligibility requirements certificate on behalf which set forth for of Eastern Service Also, Corporation. regard you mortgagors, may the instructions contained handbook, mortgagee’s determine whether requirement not the evidence shows beyond mortgagee certify a reasonable doubt defend- all information ants application Bernstein and Florence complete Behar oc- true and in an is cupied position. may knowledge belief, such a You find that of its and the best any person position in such a underlying policy had an affirma- FHA on of reliance n duty tive to insure that statements mortgagee complete made in truth- to submit application true, you find, and if information, may so you find that the FHA ful then the ap- standard of recklessness is also duty mortgagee program places plicable person. 21425-26], to such a [R. investigate judg- proper and exercise respect ment to statements contained Although the District Court used the term mortgage applications sub- insurance “regulations”, testimony introduced to the FHA. mitted government procedures indicated that out- Now, you if there such an find lined in the FHA mortgagee’s manual duty, regulations, of reck- affirmative then standard handbook were but rather in- lessness, earlier, appli- which I mentioned structions. *26 A of number legislative statements are regulation having authority, made the majority support of their decision to af- is authorized punishment if then firm with which I myself find in respectful States, v. Congress.” Viereck disagreement'. The first of these Judge is 236, 241, 563, 87 L.Ed. Oakes’ statement that the defendant Behar (1943). As Mr. Justice Blackmun suc- signed “verifying certifications the truth of it, on the bench the cinctly put while of the information in applications.” the In its Circuit, violation of Eighth “mere a [Com- applications unsworn for mortgage insur- not modity Corporation] ‘policy’ is Credit ance, mortgagee “represents” that “to of to a violation equivalent [15 U.S.C.] the best its knowledge and belief” no v. United Jacobs 714m(a).” § information contained in papers fur- (8th 1966). untrue, nished is or incorrect incomplete. duty no places Section affirmative A statement made to the of persons’s best a to in- mortgage applicant insurance knowledge and belief does purport not to be vestigate “proper judg- and exercise credit made on such person’s actual personal concerning knowledge the financial status of ment” does not purport to “verify” truth statement. First mortgagor applica- as described in the National Bank v. Gregg, Pa. 387 (1875). opinion, con- majority tion. The on the trary, My say exactly colleagues does that. majority also says that the district mortgagor must “establish in an that court “proceeded to clarify” its charge con- approved application standard appropriate cerning defendants’ duty to “insure” the mortgage pay- . . . that truth form of statements in the application, which, concedes, are within his means” and “rather ments overstates the mortgagee’s responsibility.” Clarifying is mortgagee required certify is that this is what the district judge said he was doing. knowledge to the best of its and belief. true However, what required concerning the equate To defendants’ failure to exercise deletion, word “insure” was not clarifica- “proper judgment” credit with a reck- tion. In the absence of definition of truth, disregard less thus phrase “proper judgment”, credit falsity knowledge required by could, probability did, and in all con- to read into the something is statute which required clude that defendants were to ex- totally is otherwise absent. proper ercise credit judgment to “insure” Although the is dissent said to mis- application that the statements in the judge’s charge, conceived the the dissent true. This was error two. number quite clearly conceives that a defendant I must take Judge issue with Oakes’ is required who to exercise credit “proper charge statement court’s district judgment” concerning mortgagor’s ability knowledge equating recklessness with payments make mortgage is held to a balanced, in United States v. required different standard of care than one who is supra, Bright, 517 F.2d at an addi- not. Where such a standard is not imposed acquittal mandating tional if instruction de- regu- statute legislatively authorized actually fendants believed the state- lations, it should of in- created out portion ments made were true. In that testimony. structions in a manual and oral avoidance, charge dealing his with conscious done num- Permitting this to be was error judge did this exculpato- district include However, portion ry one. clause.5 ber correctly Judge nothing states that the District this occurred had to do with Oakes the af- duty Judge gave charge “proper exercising How- his “balanced” twice. firmative credit ever, days Judge that, place prior judgment”. three this took District existed, duty “proper judgment” portion of the Dis- where there was a such “third distinguish- way” Judge’s charge, satisfying requirement trict when he was of knowl- ing negligence edge. between on the one hand and He then stated that when a defendant disregard duty investigate, reckless under and conscious avoidance an affirmative “the portion knowledge by proof the other. The in which element satisfied be- *27 804 dared that
charge dealing duty procedure with to exercise this would henceforth federal “proper judgment” and “insure” the followed in all courts. credit has been truth of set forth in statements expressed I already my have firm convic- herein, such instruction in- full and no is tion that imposed upon the strictures cluded. defendants 18 1010 could U.S.C. not be § enlarged upon by There difference between instructions is a substantial contained falsity as knowledge of used in the civil handbooks or manuals of the FHA. enlarged upon sense and in the criminal sense. Whether so they United in this Co., case, v. Grain and we know. Cooperative Supply States will never This knowledge 47, 1973). (8th 476 F.2d Cir. Where is secure jury. 59 in the bosom of the The knowledge is a district required jury violation of court left it to the to determine statute, question criminal or lack as a carelessness of wis- of fact from the FHA book- was, dom is not Jacobs v. lets “and equivalent. its United whatever evidence there if States, holding any, our in the supra. Bright I think case” whether defendants had if interpreted duty must be to mean a de- affirmative to investigate the fi- nancial actually mortgage applicants fendant that a statement believes status of true, knowing “proper judgment” is he convicted of a exercise credit cannot be with re- spect falsity, negligently of how he regardless appli- statements contained in their application of cations. arrived at that The belief. in a case especially important this rule is fact; This was not a of it awas jury permitted such as this where question of The law. construction of stat impose the defendants de- duties court, utes and regulations for the not rived instructions only from administrative the jury. States v. Santiago, United 528 and oral of the dis- failure testimony. 1130, (2d 1976); 1135 United balancing trict court clause to include Guterma, 742, v. required “proper Bright Cir.), denied, 871, 114, cert. 364 U.S.
judgment”
charge was error
portion of his
(1960);
sub nom. Apex Distributing Co. v. United States, 821, Jury 38, 368 82 Function Court and S.Ct. 7 L.Ed.2d (1961); 26 States, Caldwell United 95 In the early days country, of our it was 35, 370, U.S.App.D.C. (1954), customary in juries most courts for to be 930, 349 U.S. 75 judges of both the law and the facts. Ill L.Ed. 1260 If this were not so there Wharton’s Criminal Procedure at would be as rules as many there are ver- (10th 1918); Foley, ed. Instructions dicts. Railway Northern Pacific Co. Process, Juries —Their Role in the Judicial Finch, (D.N.D.1915). 225 F. Yale (1932). However, L.J. jurisdictions, most practice out, this As long points juries did not Wharton “if survive. Over years law, one hundred moral ago, right to construe the firmly Court announced its becomes know adherence essential to what is the con- the doctrine that the court struction they adopt.” decides the law Wharton’s Criminal and the jury Procedure, the facts. supra, Otherwise de- Riley, 5 1864). Bl.C.C. 204 fendants will Finally, be left rudderless and without in the landmark case Sparf guide established standards to them. More- over, appellate court will have no means (1895), L.Ed. 343 Supreme determining Court de- whether a violation of rules yond enough apply balancing requirement reasonable doubt a defendant reck- lessly things way” Bright proving stated as facts which he was to this “third knowl- ignorant, disregard edge, laymen acted with reckless to credit these twelve prescient legal principles readily grasp whatever statements made were true.” To lawyers. sophisticated among conclude found even provides inter- sioner.” Section 203.33 have been that a regulations, mortgagor’s income may be considered has occurred. ade- jury, preted *28 quate though prescribed even certain limi- necessity of out the point better I cannot tations are exceeded “if other, there are by review than appellate knowledgeable compensatory present, favorable factors as majority opin- in the language reference determined the Commissioner.” jury that “if the states Judge Oakes ion. provides affirmative Section 203.43a for the were no such issuance that there decided mortgages in older would of urban areas such . . . as duties [defendants] herein, subject . .” Let are involved . . to a acquittal entitled to determina- been the tion the never know—that Commissioner “that the will mort- us assume—we gage affirmative to be insured is an acceptable there were no jury did decide risk”. mortgagee’s handbook, not have been foreword to the defendants duties. Should prepared signature We over the of the can we answer this? Commis- How acquitted? sioner, states that the eligibility appli- in a vacuum. We do of an to ruminate are left imposed mortgage cation for insurance will legal what duties be deter- not know “only complete oth- mined after jury; analysis by the no these defendants upon know, jurisdiction”. hundreds of FHA field office with will ever er court like to mortgagees who would FHA other nothing any There is in of provi- these equally at sea. with the law will be comply which places upon mortgagee sions duty exercising of credit say judgment. that defendants We My brothers reach far by the submission of these afield when we such prejudiced duty not find a requirement the affirmative in the jury approved because that mortga- issues judgment” gees credit must “service duty exercising “proper of insured loans”. 12 a matter 1709(b)(1),17151(d)(1); defendants as imposed U.S.C. C.F.R. §§ disagree. A state- 203.9. “Insured” loans have again already law. I must been of obligated Servicing as a matter of made and insured. them that one is has ment judgment” nothing to do with the “proper exercising “proper credit law to exercise judgment” what meaning if one doesn’t know credit at the time the applica- little has my mortgage If tion for judgment” is. broth- insurance was “proper being credit of made. forth with a definition ers would come guarantee and then phrase indulge dangerous practice We also in a finding definition used the same jury when we cite cases from the civil side of the might agree that no guilty, I defendants “analagous” court when a determination however, long, as the existed. So prejudice liability of criminal is being made. First nature to define for itself the
jury was free
Bank,
National
Henrietta v. Small Business
which,
duty
majority says,
Administration,
(5th
1970),
The Court held that
the Administrator
The record is clear
the issue of
rely
liability.
on this disclaimer of
might
“proper credit
judgment” was inserted in
guilt
purposes
determining
For
the case at the instance of the Government
case,
these deci-
this criminal
was the Government which
think,
sions, I
not analogous.
are
this issue
wanted
submitted to the
as a
question of fact. The
opposed
defendants
to trans-
We should also be careful not
outset,
this from the
transcript
*29
fiduciary
imposed
pose
responsibilities
the
replete with illustrations of
fact.
this
De-
completely
by the securities
laws into a
fense counsel
court,
advised the
for exam-
Squires,
alien field. United States v.
ple,
question
that
the
duty
affirmative
1971). Where,
as
F.2d
legal
“was a
issue rather
one
than
that
be
here,
requires
FHA
that
it
furnished
the
phrased
should be
decide”;
for the jury to
credit
reports
agen-
from established
credit
that
it
“an
affirmative
legal duty, and
Bradstreet,
it
cies
as Dun and
can
such
it seems to me that
legal duty
the
is to be
the
hardly
relying upon
be said to be
credit
solely by
determined
the Court
by
and not
mortgagee.
of the
the FHA
acumen
Where
jury”;
the
that “its existence or lack of
Deposit”
a “Verification of
form
furnishes
was a
existence
matter of law which must
completion by the
bank
mortgagor’s
for
necessarily be determined in the first
in-
form
Employment”
a “Verification of
for
by
stance
the Court”.
by
employer,
the
it
completion
mortgagor’s
certainly
mortgagee
does
expect
judge
not
the
to
The trial
did
not decide
his
go beyond the information
contained in
course
action
until defense counsel Ober-
forms
these
Dun and Bradstreet
maier
inwas
the middle of his summation.
report
investiga-
colloquy
credit
and conduct a credit
The
between court
counsel
expect,
its own.
it
tion of
If
did so
it did
this
is set
point
forth in
margin.6
full in the
Atty.]:
owing
meant,
6. Mr. DePetris
U. S.
As I under-
however,
[Asst.
to the FHA. Whom 1
you
you
jury,
may
Cronin,
it
would tell
stand
find
so find
I believe.
you
duty
Now,
there
an
if
that
that
is
affirmative
further,
anything
if there is
Mr. DePe-
principle
tris,
of recklessness—
very happy
you
I would be
to hear
before I
Yes,
my
question
a
make
decision
The Court:
instead of as
final.
No,
only
fact,
Mr. DePetris:
law. Because I have
National
not
Your
checked
Honor. In
that
way
Act,
Housing
regulations
initially
was the
we
but all
had
submitted in our
request
charge.
is,
ques-
that
been
discussed in the course of the
That
leave it as a
argument
jury.
produced
tion of
trial and—and the
fact
De-
And it was
that
requested
Counsel—I
Defense Counsel
as a
charged
fense
particularly
don’t remember which it was
that it be
question
spe-
is no
as a
effect that there
matter of
If
law.
Your
—to
requirement
any
prefers
stating
question
cific
Honor
of them
leave it to the
of the
jury,
duty
part
right
is an
then
all
there
anyone, except
affirmative
that’s
with us.
it,
mortgagee
I
they
So
they
insofar
as understand
as the
hand-
will
told
be
may
they
duty
duty.
a
book
such
cerned,
concerned
be
find
which could
deduced
affirmative
And if
—an
find,
duty
mortgagee
principle
then
insofar as
do
con-
of reckless-
dealing
applica-
ness—
those
with the
nothing
apply.
tion—the 2900
rectly along
I
The Court: Then it
form. But
found
di-
would
applicable
might
be
Mr. DePetris: Fine.
lines that
Bradstreet,
up
But
either to Dun &
&—and 1
The Court:
it’s
Prescott
to them to find.
Obermayer:
just
somebody quirp
application
heard
Mr.
Eastern Service.
Our
this morn-
course,
ing
thinking
prejudice
position
was without
But of
I am
about
that.
to our
appropriate
quirping.
subject
jury.
Mr. Soviero: I
it’s not
wasn’t
for the
right.
you
you
Court: I
The
All
know
weren’t but
did
Court:
say something
join
Mr.
Mr.
in there. But
Service I
Wall:
Prescott will
Eastern
Dun &
categorizing
approved
mortgagee
am
as a
Bradstreet’s motion.
lend-
of,
Well,
position,
er. And
possession
are at least in command
The Court:
their
Iif under-
mortgagee
correctly,
handbook from
stand it
is that—
question
which some decisions could be arrived at
Mr. Wall: It’s a
of law which should
jury
duty
jury.
the effect that there is some
be
to the
FHA,
professed aims of the
made in accord-
exchange between
not construe
I do
housing policy
ance with a national
seeking
by the de-
request
counsel as
court and
the elimination of sub-standard and other
duty as
charge affirmative
fendants
inadequate housing. 42 U.S.C.
defendants’ subse-
of fact.
What, then, is the
standard
which
given
charge
exceptions'
quent
“proper
judgment” required
not so con-
they did
clearly indicate
defendants should be measured? Is it that
worst that de-
Assuming at the
it.
strue
by prudent
would
exercised
pri-
clear
position
their
not make
did
fendants
investor,
vate
or should the broad social
nonetheless,
would,
judge, I
the trial
purposes
Housing
of the National
Program
was so deficient
his
conclude
be taken into account? The district court
respects as to
in material
and defective
we,
say,
didn’t
jury,
like the
are left in
error. United States
plain
amount to
vagueness
doubt. Such
is fatal
1973).
Clark,
position,
Government’s
because
was without
clearly defined standards
Judgment?
Proper Credit
What Is
guilt
which defendants’
could be deter-
Brownstein,
3,1967,
P. N.
Mr.
October
On
mined.
Grocery
United States L. Cohen
spoke at
Secretary-Commissioner,
Assistant
Co.,
*30
U.S.
S.Ct.
conspiracy was dismissed at close Conclusion government’s case, we said: Originally twelve defendants and six determine as a permitting In co-conspirators were eighty- named in defendants question of fact whether four eight counts. The defendants who Bernstein, Corpora- Eastern Service were tried were named in eighty substan- to be held to Behar were tion Florence charging tive counts violation crim- of six exercising “prop- undefined standard of inal statutes. While it is court com- true that judgment”, the district er court has on several requires re- occasions sustained prejudicial error which mitted on convictions substantive defendants after of the conviction of these counts versal of a conspiracy dismissal the false statement counts. count relied justify joinder omit- [citations Moreover, prejudicial effects of the ted], we are not aware of any such case in court’s errors cannot be limited to district number of ap- counts even charges and these defendants. Be- these proached the number It involved here. against conspiracy charge all de- cause obvious that as the number of counts is bribery encompassed both and the fendants increased, the record becomes more com- *31 statements, filing of I we false believe have plex is more difficult juror for a alternative but to reverse all of the no keep charges the various against the sev- conspiracy convictions. The court’s errone- eral defendants and the testimony as to charge of false making ous on the 'state- separate each of them in his mind. [Cita- ments must be held to have tainted the tions omitted]. conspiracy convictions as well. This kind of prejudice particularly If the the conspiracy convictions on count injurious to defendants who are reversed, we presented are are with the in a only counts, few of the many who preju- of whether defendants were question only are involved a small proportion of eight involving months’ trial 64 diced evidence, and who are linked with counts, together only by other held or one two of their co-defendants. conspiracy. agree I with the subjected to weeks of trial that, majority long so as the conspiracy dealing with dozens of crimi- incidents of a link sufficient provided to demonstrate a nal misconduct which do not involve these joinder plan pur- common scheme defendants in any way. days As go trial prejudice, close, while poses, by, mounting “the proof guilt was within the trial court’s discretion. likely one is to affect another.” [Cita- Miley, United States v. 1209 tions omitted]. 1975). Moreover, (2d Cir. is no “hard- there that, quotation This conspiracy formula describes situ- exactly and-fast when fails, joinder ation which existed in the count is error as matter of trial below. relationship between law.” Schaffer the false statement 511, 516, 945, 948, the bribery L.Ed.2d counts and counts was tenuous (1960). However, best, judge the trial does and there was bound to be an stages spillover a continuing duty at all adverse effect from one to the grant prejudice trial a severance if does other this unduly long trial. Kelly, denied, 384 U.S.
1965), America, Appellant, UNITED STATES give only will 1467, 16 I L.Ed.2d Rose Bernstein Appellant two illustrations. TORTORELLO, Dominic through eight months of to sit was forced Defendant-Appellee. testimony in order prejudicial unrelated aiding on four counts be convicted No. Docket 75-1376. Cardona was bribery. Appellant abetting United States Court of Appeals, months after to wait five required Second Circuit. against completed proof its Government any testi was able to offer he him before Argued Jan. 1976. escape I defense. cannot mony in his own April 1, Decided firm conviction” de the “definite prejudiced by been may have fendants resulting conspiracy charge from the
trial stand,
which, opinion, cannot my their convictions must be re
therefore Wright, Federal Practice and See
versed. (1969.) at 470
Procedure § conviction, Bernstein, Mr.
Following his businessman, was “white collar”
reputable years. For this prison for five
sentenced old man who had had a heart attack year trial, this could
during the course of year a life sentence. His 65 old
well be given year a four sentence. Fines
wife their to- against company
levied them and $685,000. Although the other defend-
taled kindly by treated somewhat more
ants were indeed, Judge, vigor-
the District this I performance of his duties. Before can
ous result, my colleagues approving
join more satisfied than I now am
I must be *32 received a fair trial. the defendants
I dissent.7 issue, panel join opinion Among divided this I in so much of the the issues which bribery multiplicity judgment the claimed counts. as holds that such counts were not may multiplicitous. disposition be made of this In order that