DocketNumber： 80-5079, 81-6912, 80-5080 and 81-6913
Citation Numbers： 690 F.2d 1117
Judges： Widener, Murnaghan, Potter
Filed Date： 1/13/1983
Status： Precedential
Modified Date： 11/4/2024
Daniel King Brainard and Halton Q. Bit-tick, Jr. appeal from their convictions on numerous counts related to alleged participation in a fraudulent investment scheme. We reverse and remand for a new trial.
I.
Brainard and Bittick were owners of National Executive Planners, Inc. (NEP), a small investment company located in Greensboro, North Carolina. Brainard had dealt with Sheldon Moss, a Chicago businessman, on several occasions. In July, 1978, Moss telephoned Brainard and proposed that NEP offer to its clients the opportunity to make loans to Moss’ company, Television Marketing Corporation (TVM), at an annual interest rate of twelve percent.
Brainard flew to Chicago, where Moss gave him a tour of the TVM facilities and further explained the proposal. Moss claimed that TVM distributed and marketed products sold by national retail stores, and that, because retailers generally paid for merchandise from thirty to ninety days after it was received, TVM experienced a cash flow problem. In order to avoid paying high interest charges to banks for interim financing, Moss suggested, TVM would borrow money from NEP clients, and secure the loans by assignments of accounts receivable from well known national retailers.
Investment in TVM was popular, and it gradually became a large part of NEP’s business. Brainard was active in sales for NEP, and Bittick, although not involved in sales, promoted the investments as well. At the outset investors received the interest payments they had been promised, and were repaid when the loans matured. In addition, most of them received what purported to be Uniform Commercial Code forms verifying the assignments of accounts receivable as security for the loans.
By late 1974, TVM’s legitimate marketing activities were curtailed and the company was reduced to a shell through which Moss continued to funnel investors’ money. Moss never filed with the Secretary of State the UCC forms he sent to investors, and there were no accounts receivable to secure the loans.
As the scheme progressed, the relations between Moss, Brainard and Bittick developed. In early 1975 NEP experienced financial problems, and Moss lent Brainard and Bittick $13,800. Later that year he contributed another $36,000 to NEP, and in payment for the loans he was given an interest in NEP.
In the interim, Bittick had purchased a controlling interest in Investors Financial Planning, Inc. (IFP), a licensed broker-dealer corporation. Brainard and Moss contributed to Bittick’s payments for IFP, and were beneficial owners of the corporation. In 1976 Bittick traded his interest in NEP for $20,000 plus Brainard’s release of his beneficial interest in IFP.
As a broker-dealer, IFP was required to file reports with the SEC when any change of ownership occurred. In April, 1976, Bit-tick, as president of IFP, verified SEC form BD and filed it with the SEC to reflect a change of ownership. The form did not list Sheldon Moss as a beneficial owner of IFP, and did not mention-'that Moss had previously been enjoined from selling unregistered securities.
On September 28, 1978, the Secretary of State of North Carolina issued a cease and desist order directing Moss to stop selling investments in TVM. The SEC and United States Postal Service soon began investigations, and the fraudulent nature of the TVM scheme was revealed. Brainard and Bittick agree that the scheme was fraudulent, but maintain that they, like everyone else, were unwittingly duped by Moss.
Brainard, Bittick, Moss, and Sheldon Rothman, a TVM officer, were indicted on January 28, 1980, on eighteen counts of mail fraud in violation of 18 U.S.C. §§ 1341 and 2, and on one count of making a materially false and misleading statement to the SEC in violation of 15 U.S.C. § 78a et seq. and 18 U.S.C. § 2. Brainard was deleted from Count 19 in a superseding indictment filed on February 25, 1980. Moss pleaded guilty to all charges, and charges against Rothman were dismissed. Brainard and Bittick were tried to a jury and convicted on Counts 3 through 13, 15, and 18; Bittick was also convicted on Count 19. Count 14 was dismissed at the conclusion of the government’s case, and Count 16 was dis
II.
At the outset we address appellants’ contention that the evidence was insufficient to support a guilty verdict on the mail fraud counts,
Appellants argue that the evidence did not support an inference that they had the specific intent to defraud necessary for a mail fraud conviction. E.g., United States v. Pearlstein, 576 F.2d 531, 537 (3d Cir. 1978); United States v. Payne, 474 F.2d 603, 604 (9th Cir. 1973). Viewing the evidence in the light most favorable to the government,. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), United States v. Bobo, 477 F.2d 974, 989 (4th Cir. 1973), cert. denied, 421 U.S. 909, 95 S.Ct. 1557, 43 L.Ed.2d 774 (1975), we find that the evidence was sufficient to support an inference that Brainard and Bit-tick had the requisite intent to defraud.
Several elements of the scheme were sufficiently obvious to support an inference that Brainard and Bittick knew it was fraudulent. The UCC forms provided to investors were xeroxed copies which bore no evidence of filing or recordation, no signature of the secured party, and often no signature of the debtor. Although accounts receivable were ostensibly paid to TVM by Sears within 180 days, victims received only one UCC form, even if their investments lasted three or more years. When investors complained that they had not received their UCC forms the delivery dates were changed, and in some instances no date was promised, at Brainard’s direction. Some investors who wanted their money back were repaid in piecemeal fashion.
Additionally, there was testimony that appellants, in describing TVM to potential investors, embellished their description of Brainard’s investigation of the firm. They falsely assured NEP salesmen that a review of Moss’ finances showed he had a substantial net worth. An inconclusive Dun and Bradstreet report was described by appellants as showing TVM’s creditworthiness.
Finally, Moss’ other dealings with appellants could have provided further support for an inference that they intended to defraud investors. When NEP had financial difficulties, Moss provided $49,800 to maintain the company, and in return acquired a financial interest in it. Brainard had previously sold unregistered Golden West Securities marketed by Moss as part of a similar scheme.
The aggregation of circumstantial evidence offered by the government was sufficient to permit a finding that Brainard and Bittick. knowingly participated in the fraud. Accordingly, we proceed to appellants’ other allegations.
In his closing argument the Assistant United States Attorney stated that Bittick had told Brainard, in essence, that TVM was “a downright fraud” and “a hairbrain scheme,” that “there is something fraudulent here” and “something wrong here,” and that “this thing stinks.” Bittick’s actual statements were “that normally the higher the return, the higher the risk,” and that until he knew more about TVM he would not recommend it to his clients. Appellants contend that the government’s misquotations were prejudicial.
The closing arguments of counsel are “limited to the facts in evidence and reasonable inferences flowing therefrom.” United States v. Ojala, 544 F.2d 940, 946 (8th Cir. 1976). See also, e.g., United States v. Bell, 506 F.2d 207, 225-26 (D.C.Cir.1974). Here, the prosecutor went well beyond arguing which inferences were reasonable. Instead, he went so far as to attribute to Bittick on five occasions unequivocal inculpatory statements with respect to the only disputed issue in the case. Particularly in a case where the evidence is voluminous and the facts complex, we cannot excuse such prosecutorial distortion. The misquotations “may well have become so firmly implanted on the jurors’ minds as to cloud the actual testimony.” Wallace v. United States, 281 F.2d 656, 668 (4th Cir. 1960) (misquotation of government witness). See also United States v. Guajardo-Melendez, 401 F.2d 35, 40 (7th Cir. 1968) (where the prosecutor attributed to a government witness testimony which inculpated the defendant, and the government witness had not so testified, a new trial was required).
United States v. Callanan, 450 F.2d 145, 151 (4th Cir, 1971), relied on by the dissent, supports our conclusion. In that tax evasion prosecution, the government improperly described deductions taken by the defendant as illegal. The court relied on three factors in finding that the prosecutor’s remarks were not prejudicial: the evidence was overwhelming, the comments did not pertain to a central issue in the case, and the prosecutor as well as the court made clear to the jury that the defendant was not charged with false deductions. Here, none of those factors is present. On the question of knowledge, the case was a close one. The only direct evidence — the defendants’ testimony and hearsay statements by Moss — indicated that Brainard and Bittick did not know of the fraudulent nature of the scheme. The circumstantial evidence relied on by the government was sufficient to support a finding of knowledge, but did not compel such a finding. The misstatements pertained to the central issue — indeed the only issue — in the case. Finally, the court’s general instruction, echoed by the prosecutor, that the jury should rely on its own recollection of the evidence fell far short of the specific admonition in Callanan that the comments with respect to the deductions were improper. At no time was the jury instructed to disregard the repeated misquotations of Bittick. Cf. United States v. Guajardo-Melendez, supra (misquotation of witness in closing argument was prejudicial notwithstanding the court’s instruction on four occasions that the jury should trust their own recollection rather than that of counsel).
Defense counsel failed to object to the prosecution’s remarks.
IV.
At trial, the government elicited from a number of witnesses statements made by Sheldon Moss which were arguably inculpatory of Brainard and Bittick. However, on cross-examination of Karen Gambala, a former secretary to Moss, defense counsel were instructed “not to ask her about the matter of Mr. Moss’ statement to the effect that the Defendants are innocent.” Ms. Gambala’s proffered testimony that Moss had told her that “Hal Bittick and King Brainard had no knowledge of [the scheme]” was excluded from evidence.
The threshold inquiry under the hearsay rules is whether Moss was “unavailable.” F.R.Evid. 804(a)(1) provides that a witness who is “exempted by ruling of the court on the ground of privilege from testifying concernmg the subject matter of his statement” is unavailable. Here Moss never actually took the stand and claimed his Fifth Amendment privilege against self-incrimination, so the district court never had occasion to rule formally on the matter. However, Moss’ attorney stated in court that if Moss were subpoenaed, “I will advise him and he will accept my advice to claim the privilege of the Fifth Amendment,” and the district court agreed that the assertion of the privilege would be valid.
We decline to require the defense actually to produce Moss and obtain a formal ruling on his assertion of the privilege un: der those circumstances. Brainard, Bittick, and their counsel could properly proceed on the basis that, in light of the statement by Moss’ attorney, he would plead the privilege against self-incrimination, and that the district judge, in view of what he had said, would rule in favor of the privilege claim.
We proceed to consider whether, in view of Moss’ unavailability, his utterances were admissible as statements against interest under F.R.Evid. 804(b)(3). Our initial inquiry is whether the statements were against Moss’ interest within the meaning of the rule. The statements amounted to an admission that the scheme which he organized was fraudulent. While Brainard and Bittick’s ignorance of the fraud does not in itself incriminate Moss, his representation that they were unaware of the fraud strengthened the impression that he had an insider’s knowledge of the scheme, that it had elements of a shady nature, and that, based on his special familiarity, he knew that Brainard and Bittick were not contributing those elements. The rule does not “constrict the scope of a declaration against interest to the point of excluding collateral material that, as here, actually tended to fortify the statement’s disserving aspects.” United States v. Barrett, 539 F.2d 244, 252 (1st Cir. 1976) (holding that the declarant’s statement that the defendant was not involved in a theft was a statement against interest). See also United States v. Thomas, supra, 571 F.2d at 288-89 (statement that the defendant “didn’t have anything to do with it” was a statement against interest). We therefore conclude that “a reasonable man in [Moss’] position would not have made the statement unless he believed it to be true.” F.R.Evid. 804(b)(3).
Since the statements were against Moss’ interest, they were admissible if “corroborating circumstances clearly indicate the trustworthiness of the statement^].” F.R.Evid. 804(b)(3). See also United States v. Thomas, supra, 571 F.2d at 290; United States v. Barrett, supra, 539 F.2d at 253. We note first that the government’s argument, echoed by the dissent, to the effect that Moss was not a credible witness ignores the central issue. The requirement of corroborating circumstances was designed to protect against the possibility that a statement would be fabricated to exculpate the accused. Thus, the Advisory Committee explained the requirement of corroborating circumstances as follows:
[O]ne senses in the decisions a distrust of evidence of confessions by third persons offered to exculpate the accused arising from suspicions of fabrication either of the fact of the making of the confession or in its contents, enhanced in either instance by the required unavailability of the declarant.
F.R.Evid. 804(b)(3), Advisory Committee Notes. The rule requires not a determination that the declarant is credible, but a finding that the circumstances clearly indicate that the statement was not fabricated. It is the statement rather than the declarant which must be trustworthy. Cf. United
The circumstances surrounding Moss’ statements provide the required corroboration. Moss had not yet pleaded guilty, and his statements acknowledging the existence of a scheme tended to inculpate him. There was no apparent reason for Moss to lie to his secretary, since he had no knowledge that his statements would ever be used on behalf of Brainard and Bittick. The statements were made by Moss on a number of occasions. The circumstances clearly indicate that the statements were not fabricated. They should therefore have been admitted by the district court.
The government’s successful attempt to exclude Moss’ exculpatory hearsay statements but at the same time introduce his inculpatory statements is of particular concern to us. The inculpatory statements could not, under the Sixth Amendment’s Confrontation Clause, be used against appellants unless Moss was unavailable and the statements bore adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980). Yet the government now contends that Moss was available, and that his exculpatory statements were unreliable. The government’s attempt to have it both ways strikes us as imprudent and unfair. Were we to accept the contention that Moss was available and his exculpatory statements unreliable, then, absent a showing that his inculpatory statements were for some reason more reliable, their use at trial would pose serious constitutional problems.
We conclude that Moss was unavailable, and that his statements were against his penal interest and surrounded by corroborating circumstances. The statements went to the heart of the defense — the contention that Brainard and Bittick did not know of the fraud. The jury should have been permitted to hear testimony with respect to Moss’ statements.
V.
Appellants raise a number of other issues. In light of our determination that a new trial is required, we decline to address matters which may not arise at a new trial, or may arise under significantly different circumstances. There are, however, two additional points which require our present consideration.
A.
On November 2,1978, Lilian Wilcox, an SEC employee, began a “routine” noncriminal investigation at NEP offices. Her investigation lásted until November 9; she gathered information and documents with respect to TVM and other matters. On November 9 she was informed by J. Larry Grant, Assistant Regional Administrator in the Atlanta Enforcement Division of the SEC, of a criminal investigation of NEP being conducted by Mike Gulas, a postal inspector. Grant directed her to disclose any pertinent information to Gulas. She provided Gulas with the information she
The district court ruled that the list itself was improperly obtained, and therefore inadmissible, since once Ms. Wilcox knew of the criminal investigation she was obliged to warn Brainard of his constitutional rights. The court also found that since the information in the list had been independently obtained elsewhere, it did not taint the rest of the government’s case. Brainard challenges the second finding, and also argues that Wilcox’s disclosure of the information to a postal inspector violated the Investment Advisers Act of 1940, 15 U.S.C. § 80b-l et seq.,
The court’s ruling that the information in the list had been independently obtained elsewhere was not clearly erroneous. A week before Gulas and Wilcox met, Gulas had served on NEP a grand jury subpoena which required production of NEP and TVM personnel records, as well as other documents. The subpoenaed materials constitute the required independent source of the information in the list. E.g., Brewer v. Williams, 430 U.S. 387, 406 n.12, 97 S.Ct. 1232, 1243 n.12, 51 L.Ed.2d 424 (1977); McLindon v. United States, 329 F.2d 238, 240 (D.C.Cir.1964).
Nor do we find merit in Brainard’s claim that Wilcox’s disclosure of the information violated the Investment Advisors Act of 1940. The Commission can delegate its power to approve the disclosure of information to other governmental authorities, 17 C.F.R. § 203.2,
B.
Bittick argues that the district court erred in refusing to sever Count 19 from the mail fraud counts. He contends that Count 19 was unrelated to the other counts, and that the evidence introduced for Count 19, which established a connection between Bittick and Moss, was prejudicial. We disagree.
Two or more offenses may be charged in the same indictment if based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan.” F.R.Crim.P. 8(a). The false statement alleged in Count 19 was made by Bittick in his capacity as controlling shareholder of IFP. Brainard and Moss also had an interest in IFP, and Brainard, Bittick, and NEP’s salesmen were registered as representatives for the sale of securities with the SEC through IFP. Since NEP was not a broker-dealer, it relied on IFP to sell registered securities. The false statements alleged in Count 19 were, under the government’s theory, intended to prevent the SEC from discovering Moss’
Of course, although joinder was proper, severance would have been permitted if any defendant would have been prejudiced by a joint trial. F.R.Crim.P. 14. That decision is committed to the district court’s discretion. United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976). We find no abuse of discretion here, since the concealment charged in Count 19 would in any event have been admissible in a separate mail fraud prosecution to show intent to defraud. Cf. United States v. Grow, 394 F.2d 182, 196 (4th Cir. 1968), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968) (evidence of concealment of ownership was admitted in mail fraud prosecution).
Since appellants’ trial was deficient in important respects, we reverse and remand for a new trial.
REVERSED.
Part III of the opinion represents the views of Judge Murnaghan alone, and so has only the effect of a concurring opinion. The divergence of the panel members on that point does not affect the outcome of the case.
. The parties disagree as to the time of the transfer; appellants place it on April 1, 1976, while the government argues it was July 6, 1976.
. Moss had earlier operated a similar investment scheme. He had promised investors in “Golden West Utilities” monthly interest payments at an annual rate of twelve percent, and had claimed that investments were secured by a second mortgage on undeveloped Arizona land. Brainard marketed Golden West until its collapse in late 1972. On September 27, 1972, Moss, Golden West, and others were enjoined from selling unregistered securities in an action brought by the SEC.
. Both defendants received concurrent sentences of five years on Counts 3, 4, 5, and 6, and two years, concurrent, on the remaining mail fraud counts. Bittick also received a concurrent three year sentence and a $10,000 fine on Count 19, and a $2,000 fine on the mail fraud counts.
. The argument is made only by Brainard in his brief, but Bittick adopts all arguments raised by Brainard insofar as they are relevant to him. F.R.App.P. 28(i). Since the facts which incriminate the two appellants are so similar, we assume that Bittick properly raised the question of the sufficiency of the evidence.
. Bittick asserts that there is a fatal variance between the indictment and the evidence with respect to Count 19. The contention actually addresses the sufficiency of the evidence. He argues that the evidence showed that Moss had no power to control IFP after March 31, 1976, and that, since buying stock is not financing, Moss did not finance IFP. Thus, he concludes, he was not required to list Moss on Form BD as a person who exercised a controlling influence over the applicant’s management or who financed the business, or to disclose the prior injunction.
There was ample evidence to support the opposite conclusion. There was evidence that Moss did not surrender his interest in IFP until July of 1976, and thus had the power to control the company on April 20, 1976, when the form was filed. There was also testimony that loans for stock purchases constitute financing. The
. The prosecutor’s statement to the jury that “I don’t mean to say that’s what Mr. Bittick said and put it in quotes” is insufficient to justify the misquotations. Even if the jury heeded that initial disclaimer, it was never told that the prosecutor was not quoting Bittick when, twenty-one pages later in the transcript, the prosecutor attributed to Bittick “this thing stinks,” and still later, “that’s a hairbrain scheme” and "it’s a downright fraud.” A single disclaimer does not give the prosecutor license to distort the defendant’s testimony with respect to the central issue on four subsequent occasions.
. After the summation, defense counsel moved for a mistrial, citing, inter alia, the government’s misquotations. A motion for a mistrial after the summation is not, however, a substitute for an objection at the time the prejudicial comments are made. United States v. Elmore, 423 F.2d 775, 780-81 (4th Cir. 1970), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54 (1970).
. Although the prosecutor only misquoted Bit-tick, the remarks prejudiced Brainard as well, since he was the supposed listener, and, had the statements actually been made, he would have been alerted to the possibility of fraud.
. Ms. Gambala also stated in her preferred testimony that “Mr. Moss had told me repeatedly that since the indictment of all of the Defendants that [sic] all of the Defendants are innocent, that they did not have any knowledge of what actually was going on.”
. The government does not argue that the district court erred with respect to the merits of Moss’ assertion of the privilege, and therefore we do not reach the issue here. We do note in passing, however, that although Moss had pleaded guilty and therefore waived the privilege with respect to the substantive offenses, e.g., United States v. Yurasovich, 580 F.2d 1212, 1217-18 (3d Cir. 1978), his testimony may have tended to incriminate him with respect to conspiracy, tax evasion and other offenses.
. United States v. Klauber, 611 F.2d 512, 514 (4th Cir. 1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980), relied on by the government, is inapposite. There the witness’ attorney had not appeared in court, but had merely represented to defense counsel that he would refuse to testify. Moreover, the district court had not passed on the validity of the prospective claim of privilege. Finally, the issue there was not whether the witness was unavailable, but whether the district court had erred in declining to grant immunity to another witness.
. Of course, the district judge should have required the witness to appear and assert the privilege, and should have ruled formally on the matter before evaluating his availability. We simply hold that in the present circumstances, where the district judge had in effect excused the defendant from obtaining a formal assertion of the privilege, the defendant is not foreclosed by the failure to comply with the strict requirements of the rule. See United States v. MacCloskey, 682 F.2d 468 (4th Cir. 1982).
. The dissent contends that Moss’ statements were not against his interest, since by exculpating Brainard and Bittick, Moss might have forestalled a conspiracy prosecution against himself. However, even without Brainard and Bit-tick, the government had no shortage of coconspirators. For instance, Sheldon Rothman, a TVM officer, was a more likely coconspirator than Brainard or Bittick, since he, like Moss, was involved in TVM itself.
. Had the statements been admitted, the government would have been free to argue to the jury that they were not credible. The requisite corroborating circumstances need not be sufficient to remove all doubt with respect to the hearsay statement. The rule requires only that “corroborating circumstances clearly indicate the trustworthiness of the statement.” F.R.Evid. 804(b)(3).
. The government’s contention that Moss’ statements were expressions of his opinion, and were not admissible even if within a hearsay exception, is without merit. The district court correctly noted that Moss, if he were present, could not simply testify that Brainard and Bittick were innocent, their innocence being a question for the jury, but that he could testify with respect to their knowledge of the scheme. Moss’ hearsay statement that defendants had no knowledge of the scheme or its details should properly be construed, for purposes of admissibility at least, to mean that Moss had not told them about the scheme, a statement within his competence, and that he was in a position to afford factual testimony supportive of the conclusion favorable to Brainard and Bittick.
. 15 U.S.C. § 80b-10(b) provides in part:
[T]he Commission, or any member, officer, or employee thereof, shall not make public the fact that any examination or investigation under this subchapter is being conducted, or the results of or any facts ascertained during any such examination or investigation; and no member, officer, or employee of the Commission shall disclose to any person other than a member, officer, or employee of the Commission any information obtained as a result of any such examination or investigation except with the approval of the Commission.
. Information or documents obtained by the Commission in the course of any investigation or examination, unless made a matter of public record, shall be deemed non-public, but the Commission approves the practice whereby officials of the Division of Enforcement at the level of Assistant Director or higher, and officials in Regional Offices at the level of Assistant Regional Administrator or higher, may engage in, and may authorize members of the Commission’s staff to engage in, discussions with representatives of domestic or foreign governmental authorities and self-regulatory organizations concerning information obtained in individual investigations, including examinations and formal investigations conducted pursuant to Commission order.
17 C.F.R. § 203.2.