*3 limitations, (3) prosecutorial statute of WINTER, Before NEWMAN and Circuit leading questions misconduct in the form of MALETZ, Judge.* Judges, and Senior government prejudicial witnesses MALETZ, Judge: summation. Senior DeFiore, arguments Paul Jo- raises two
Defendants-appellants Coppola Defendant submits, First, were con- on- his he seph Coppola appeal. and Robert Galler evi- victed under a ten count indictment which failed to adduce sufficient Depart- of his knowing participation scheme to defraud dence Finance, con- Coppola ment of Taxation and fraudulent scheme. further State York, jurors by Department, prospective New and the Finance tends that voir dire of York, cigarette of substantial even City magistrate, of New the United States rule, pursuant tax The scheme in- to local court allegedly revenues. conducted * tures, executing purpose for the the United States Court of International or sounds Of Trade, artifice, sitting by designation. or shall be fined not such scheme $1,000 imprisoned more more than or provides: 18 U.S.C. § years, than five or both. Whoever, having intending devised or indicted under 18 U.S.C. Defendants were also defraud, devise or artifice to or scheme provides part: § which money obtaining property or means of against Whoever commits an offense pretenses, representa- false or tions, fraudulent counsels, aids, abets, com- United States or promises, be or transmits or causes to commission, mands, procures induces or its wire, radio, by means of or tele- transmitted punishable principal. as a foreign or vision communication in interstate commerce, any signals, pic- writings, signs, large the dates of DeFiore’s cash de- Magistrates violative of the U.S.C. with posits. III and Article of the Constitution. § briefs, ciga- DeFiore and ordered Both Galler has filed no but
Defendant Galler De- confirming rettes from Cox. After adopted points letter of counsel has deposit to Piedmont’s account Cox Fiore’s raised his co-defendants. release the packs Some follow, For the reasons that we reverse bore Cox sold North the convictions of defendants DeFiore and stamps, stamps but others bore no Carolina five of the in- Galler testified that as for this whatsoever. Cox In all other respects, judg- dictment. group, stamps latter- the tax were de- ments of conviction are affirmed. although taxing Carolina stroyed, North paid two-cent-per- had been authorities I packed tax. The orders were at the pack Background Point, High Piedmont warehouse in North *4 n Carolina, packs cigarettes ten to a car- fairly simple The scheme to defraud was ton, thirty cartons to a Each case was case. Cox, in nature. As testified to by John sealed plain constructed brown cardboard president of Piedmont Wholesale Company tape, only by with brown marked numbers. (Piedmont), a North Carolina wholesale dis- There were no marks on the distinguishing cigarettes, tributor of Piedmont was autho- cases to indicate to the casual observer that rized to affix North Carolina tax cigarettes. packed, contained Once Nevertheless, stamps cigarettes. in 1974 cigarettes the cases of were from moved Cox and DeFiore struck a whereby deal High Point to barn owned a Piedmont DeFiore and Galler place telephone Sechrest, employee, subsequent Howard cigarettes orders with Cox for to be trans- loading shipment. loading These and ported to but which were un- shipment operations were not in the normal taxed under New York law. At that time course of Piedmont’s business. cigarettes North Carolina tax on was two per pack compared cents to the New part arrangement As between Cox DeFiore, York tax of 23 per pack. purchased cents The cost to Cox two vans defendants slightly higher was than the truck. The latter vehicle was ostensibly price cigarettes generally charged by designed carry Pi- four-inch diameter pipe, edmont, cigarettes but less than the price specially designed secretly but had been truck, in New York. In this way parties transport cases of the scheme would be able to realize a mutu- bearing marking Plumbing” “Tri-State profit. al door, panel on the cab had a removable side compartment. which concealed an interior Initially, DeFiore carried cash —in the This truck had been to several registered $20,000 range of North Carolina from —to Galler, persons, including different and was pay New York to for the cigarettes. Short- registered Jersey last in New under the thereafter, ly at DeFiore’s suggestion, Cox name of Plumbing Company. Tri-State opened a bank account at First National ownership The vehicle’s certificate of City Brooklyn Bank in the name of Pied- signed by Joseph Coppola on behalf of Tri- mont in order to eliminate the inconven- A certificate doing State. business is- transporting ience of large sums of cash to Jersey sued the State of New to Tri- employees North Carolina. Two of that Plumbing Supply Company State was also bank testified that DeFiore made weekly signed by Coppola capacity of owner. cash deposits Piedmont account. Us- out, Jersey As it turned New Tri-State’s number, ing the bank’s customer service address on latter certificate business Cox would verify deposit that a had in fact was fictitious. been Telephone made to that account. toll reflecting records of Piedmont the dates of Once loaded at barn the trucks Seehrest’s long-distance Testimony calls to the bank coincided would be driven York. to New were unloaded adds that the indictment here is a thinly that the trucks was adduced prosecute veiled effort as a federal of- Brooklyn, Galler at warehouse are a unloading. agent clearly An fense acts violation of assisted in the Alcohol, Firearms state law. Tobacco and Bureau 4, 1978 he observed April
testified that on
for agreement
We find no room
with
ware-
Brooklyn
leave the
pipe
truck
Indeed,
DeFiore.
four circuits before us
Verrazzano Narrows
house and cross the
squarely applied
the federal
fraud
Coppola
6 he observed
Bridge.
April
On
statutes
to state tax law violations. See
the truck into the warehouse.
driving
Melvin,
(5th
495; Mirabile, short, 503 F.2d In describing at 1067. the raison for the Cox d’etre provide of federalism principles do not account, Brooklyn bank de specially reversal. basis for See also United States truck with signed pipe compart the false 429, (2d 566 n. 2 F.2d 430-31 & Corey, ment, destruction of the North Cir.1977) (defendant’s improper claim of stamps at the cigarettes Carolina tax time jurisdiction essentially federal over what is DeFiore, coupled were sold with other offense “wholly a state is without merit” showing that testimony untaxed “frivolous”). and sold in were unloaded insufficiency DeFiore’s claim Ill See, scheme to defraud is e.g., untenable. Sufficiency of the Evidence 999, Barta, United v. Von States 635 F.2d turn next to We a consideration (2d 14 Cir.1980) (“Government 1005-06 n. Coppola’s DeFiore’s and claim that the evi need not show victims scheme’s dence insufficient to them as a convict were in fact defrauded ... some [only] that advancing matter of law. A defendant contemplated”), injury actual harm or was at least claim based on evidence insufficiency of the denied, 998, t. 450 101 cer very heavy See, e.g., bears a Unit burden. 1703, 68 (1981); S.Ct. L.Ed.2d 199 United Carson, (2d ed 361 Curtis, (10th States v. 1095 Cir.1983); Losada, United 674 States v. Cir.) (“it necessary is show that 167, 173 denied, (2d Cir.), F.2d 457 cert. person defrauded”), fact de cert. 1125, 102 (1982). S.Ct. 73 1341 L.Ed.2d nied, 429 U.S. 97 L.Ed.2d S.Ct. 50 Our inquiry (1976); Reicin, United States v. the jury, whether reasonable in- drawing Cir.), denied, F.2d 563 419 U.S. evidence, ferences from the may fairly L.Ed.2d 269 logically the de- concluded that Tramunti, See also United States v. was guilty beyond fendant a reasonable (2d Cir.) (“the ... evidence In making doubt.... this determina- light must be viewed in totality tion, we must view the case, the Government’s since one fact light most favorable to the government, *6 denied, gain others”), color from 419 ... and construe all permissible inferenc- 95 42 673 L.Ed.2d favor, es in its ... Carson, (citations 702 F.2d at omitted). 361 govern- contention this DeFiore’s that the Applying standard of review facts in this case we prove are left the firm ment to the of with failed content the that, conviction with exception the of telephone by calls sufficient must evidence indictment, five and eight counts of the the fail. the devastating testimony Given of government presented sufficient evidence Cox that he called the bank to regularly a upon which reasonable find the jury could verify that DeFiore had made the de- cash existence of a scheme to and use of defraud posits, with the rec- together telephone toll the in beyond wires furtherance a thereof ords, deposit slips, testimony bank of doubt reasonable as to all three defendants. who deposits, bank tellers took DeFiore’s strong link was established between A eight scheme to and the defraud transmis- Against The Evidence sions wire from to by North Carolina There Brooklyn. proof Based on the was thus sufficient presented entire record here, particular in the telling testimony eight to these convict on counts. Cong. fact, personnel by & In U.S.Code Ad.News 5518-35. federal enforcement law Congress expressed preference rapidly growing no for which counteract ille- could employed gal cigarette laws
federal
should be
to curb the
trade.
Id. See also United States
bootlegging
cigarettes. Congress
Melvin,
(5th
did make
544 F.2d
774 & n. 14
Cir.
clear, however,
Brewer,
passage
1977);
of this stat-
that
United States v.
increasing
1975).
ute it was
the avenues available to
Cir.
Brooklyn
to Piedmont’s
deposit
argument
fying
DeFiore’s
We find baseless
cigarette
sim-
with
proof
placing
failed in its
bank account or
that the
specific
not recall the
Indeed,
Cox could
because
it was not even shown that
ply
order.
calls made
telephone
of individual
content
in
telephone
question
number
was listed
it is
to trial. While
years prior
five
four to
Accordingly,
names.
of defendants’
has the burden of
the government
true that
of DeFiore and Galler on
the convictions
calls,
telephone
the contents
proving
eight
five and
of the indictment
circum-
be established
proof
of that
reversed.
See, e.g., United States
evidence.
stantial
(9th Cir.1981).
Garner,
B
that
clear from the evidence
And it is
that
proving
Against Coppola
its burden of
Evidence
government met
Brooklyn
were
from Piedmont
the calls
Coppola’s knowing par
proof
committing wire fraud.
purpose
“for the
of”
suffi
in the illicit scheme
also
ticipation
Tramunti,
F.2d at
his conviction. His basic
cient to sustain
that he clearly
For
testified
1338.
Cox
ciga
inasmuch as the
contention is
Brooklyn regular-
telephoning
remembered
plain
brown card
packaged
rettes were
had been
deposits
whether
ly
verify
charged
he cannot be
with
board cartons
Piedmont account.
In our
made to the
transporting
that he was
un
knowledge
with
view,
juxtaposed
when
testimony,
this
taxed
deposits
of DeFiore’s bank
the dates
ample
this record we find
On
long-distance
Brooklyn
calls
dates
jury
reasonably
from which a
infer
Piedmont,
inescapable
leads to the
from
,
was aware of the nature of
Coppola
Brooklyn on
telephoned
inference that Cox
concealed within the truck. For
goods
in the indictment
occasions listed
when the
thing, Coppola
one
deposits
DeFiore’s
to Pi-
verify
in order to
truck was loaded
North Carolina
pipe
edmont’s account.
compart-
into the secret
with
sum,
transmissions
eight telephone
In
driving
pipe
was seen
truck
ment. He
a suffi
Piedmont to New York bore
from
Moreover,
6,1978.
he continued
April
to the realization
cient connection
date,
after that
to North Carolina
drive
for the
be considered as made
scheme to
signed
registrations
six
motel
evidenced
scheme,
United
purpose
executing
25, 1978 to October
April
from
dated
(D.C.
Pollack, 534 F.2d
Further,
registered
was the
Coppola
denied, 429
Cir.), cert.
trucks,
Plumbing
owner of two Tri-State
support
and to
con
(1976),
clear that Coppola
require-
satisfies the
Clearly,
prior act evidence adduced here
this court has
ments
established for the
directly
went
to establishing DeFiore’s in
“
aiding
abetting:
tent,
offense of
‘that he in
as well as
preparations
and plans
some sort associate himself with the ven-
defraud,
went into the scheme to
see
ture,
participate
that he
in it
Corey,
4,
as in some-
We turn next to DeFiore’s claim of trial errors. DeFiore’s final regarding contention
prosecutorial misconduct
is likewise una
vailing.
611(c)
Fed.R.Evid.
states
IV
“[ljeading questions should not be used on
the direct examination of a witness except
Alleged
Trial Defects
as
bemay
necessary
develop
his testimo
assigns
as
sup-
reversible error a
ny.” (Emphasis added). These are words
plemental charge given in response to a
suggestion,
addition,
not command.
In
jury question, the admission into evidence
Advisory
indicated in the
Committee’s
of similar acts predating the statute of limi-
rule,
Note to this
almost total unwill
“[a]n
tations, the
leading
use of
questions by the
ingness to reverse for infractions has been
Assistant United States Attorney during
manifested
appellate courts.”
As
examination,
his direct
and prejudicial sum-
allegedly prejudicial
summation
mation.
government attorney, the absence of a con
temporaneous objection
request
or even a
In
supplemental
charge the trial
for a cautionary instruction obviates our
judge further defined the wire fraud law.
need for considering DeFiore’s bare claim
The only objection to it was that
judge
prejudice.
Manson,
Malley
did not fully explain how that charge relat
(2d Cir.1976),
denied,
ed to the ten counts of the indictment—
DeFiore’s second trial error Jury Magistrate Voir Dire is equally without merit. He contends that improper for the trial court permit We address finally Coppola’s argu the introduction into evidence of acts and ment that the prospective voir dire of jurors transactions prior to the five-year statute in this case was improperly delegated to the period. limitations This contention is magistrate federal contrary to 28 U.S.C. easily disposed 404(b) of. Rule of the Fed (1976) and Article III of the § Constitu eral Rules of Evidence provides: tion. Local court rule the Eastern
(b) crimes, Other wrongs, or acts. District of New Evi- York authorizes magis crimes, dence of other wrongs, or acts is trates to jurors. conduct voir dire of petit *8 not prove admissible to the character of a Coppola argues, however, the delega person in order to show that he acted in tion of certain duties magistrate to a in conformity however, therewith. may, It cases felony extends mat only pretrial be admissible for purposes, other such as ters under the Magistrates and that proof motive, intent, opportunity, the jury selection of a is not a pretrial preparation, plan, knowledge, or identity matter. The Virgin George, See Islands v. absence of mistake or (3d accident. Cir.1982). carrying pipe ordinary ap- or into vans
However,
objection
contemporaneous
no
cigarettes
were
pearance.
Some
process.
the
selection
was made to
sold
transported
City
to New York
and
therefore,
this
We,
see no reason to consider
However,
government
there.
as the
con-
on appeal.
for the first time
objection
there was no
argument,
proof
ceded on oral
Lieberman,
the
great
cigarettes
as to where
bulk
denied, 444
(1st Cir.1979),
sold,
transported
were
and no connec-
judicial presided officer who over fraud, proof to commit wire the acy jurors. dire petit clearly sufficient. Had the indictment al- in one count a scheme to defraud leged VI City and New York State of tax money and the use of the wires in further- reasons, judgments For the foregoing the scheme, the proof ance of the was also DeFiore and of conviction of defendants Had the evidence shown that sufficient. as to counts five and Galler are reversed each call resulted in the use of the camou- eight. judgments In all other respects, flaged transport cigarettes truck to to New of conviction are affirmed. there, join York for resale I would WINTER, concurring majority affirming eight in counts on Judge, Circuit grounds deceptive resulting that a act part dissenting part: of New proven. in a fraud York had been ten allege The indictment was framed to counts, particular govern- each of which involved a Under the caselaw cited ment, phone involving call Two it must a placed particular prove on date. scheme of the calls were never or other intended deception connected false statement designated governmental defendants and I concur in the to cause a author- majority’s calls were to lose tax revenue. All the evidence remaining eight ity dismissal. however, showed, all placed particular phone purchase from a in North scheme and, sell without a presumably, cigarettes Carolina to a bank in New York. The If York was alleged stamp. deception indictment that each of these calls tax of New separate proven, was a crime since each furthered a it was in the occasional use of truck, single camouflaged trip scheme to one in that City defraud State and of New York these authori- truck to New York and the sale of a deprive cigarettes ties of tax revenue due on the sale of small number of there. None of ciga- rettes. calls counts in- alleged eight truck, or trip volved the to New York The evidence showed that the defendants framed, therefore, the sales. As indict- engaged cigarettes were in purchasing very ques- ment thus raises the troublesome stamp without a North Carolina tax every tion of whether each and use of the customarily resale. The seller confirmed single connection with a wires phone that had been purchase money prov- to defraud can be scheme deposited particular in a bank account in separate en as a count. in- New York. Each of the au- appears there to be little phone Although volves such a call. The it would seem to directly point, camou- thority were then loaded either into a truck drawing line is in order. it was me that some flaged appear so as to make *9 camouflaged of the truck in connection did not intend Congress surely calls but it did not. eight phone with the liability to criminal should be so exposure calls dependent upon phone number conviction, legal of the there- theory thing or wire transmissions made. For one fore, every is either that use of the wires exposure entirely is random not single with some connection to a scheme to multiple because small frauds include a crime or that a wire fraud is defraud is not, large while ones do uses of wires phone the use of a in connec- made out relatively but also because innocuous uses simple non-payment tion with the of state are as criminal as those actual- of the wires either of proof decep- or local taxes without communications. involving fraudulent ly taxing authority of the identity tion or government of the would render theory accept theory I cannot either involved. phoning a would-be swindler’s criminal therefore, and, dissent.1 for a to allow him to eat while work- pizza is itself a fraudulent act.
ing as a call which another, protection
For the constitutional
against jeopardy relatively double becomes
meaningless prosecutions since successive only allege
need
different calls.
OLIVER, Joseph Jude
line drawing
Such
is not difficult. For
example,
Congressional purpose would
ZIMMERMAN, Charles, Superintendent
be fully
by allowing
separate
effectuated
Attorney
General
State
and The
count
each conspiracy,
a count for each
Attorney
Pennsylvania
District
utilizing
scheme to defraud
wire transmis-
County.
of Berks
sions,
separate
and a
count for each actual
utilizing
fraudulent act
a wire transmission.
Joseph
Oliver.
Appeal of
Jude
rule,
eight
Under such a
count indict-
82-1747.
No.
ment in the
case was not proven.
Appeals,
Court of
Having chosen to frame the indictment as it
Third Circuit.
did,
government
obligated
to prove
each element on each count. United States
12(6)
Rule
Under Third Circuit
Submitted
Robinson,
(2d Cir.1976).
wise, of that state or some other were vio-
lated, Second, simply assumed. there has proof deception
been no of either or a false
statement in connection with any particular
phone might call. An act of deception
been proven had the shown use insignificance compliance
1. Affirmance renders into contain no evidence of with the seq., Jenkins 2341 et a feder- U.S.C. particular §§ state where if the law found specifically regulates al criminal statute which requires procedure stamping. such as state trafficking lation, cigarettes. legis- in contraband This legislation every If the wire fraud reaches non- provide intended to federal assistance to however, cigarettes, payment of state taxes on collecting states in revenue due for the sale of prosecutor no federal will ever have a reason to cigarettes, spells out in detail the kinds of traf- it, the Jenkins Act even rather than use ficking in contraband which Con- statute, product the wire fraud is the of Con- gress sufficiently believed to be serious to call problem gressional study of contraband example, for federal intervention. For more 60,000 cigarettes than must be involved