March 13, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-1241
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL J. CONCEMI,
Defendant, Appellant.
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No. 91-1249
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER RIBECK,
Defendant, Appellant.
____________________
ERRATA SHEET
The opinion of this Court issued on March 4, 1992, is
amended as follows:
Page 13, line 12 from bottom, should read: MR. BENJOYA
[Concemi's counsel] . . .
Page 14, line 2, should read: . . . To the contrary,
Concemi's defense . . .
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No. 91-1241
UNITED STATES OF AMERICA,
Appellee,
v.
SAMUEL J. CONCEMI,
Defendant, Appellant.
____________________
No. 91-1249
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER RIBECK,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Andrew A. Caffrey, U.S. District Judge]
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____________________
Before
Torruella, Circuit Judge,
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Timbers,* Senior Circuit Judge,
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and Cyr, Circuit Judge.
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James E. Carroll, with whom Harvey Weiner, Maureen Mulligan
________________ _____________ ________________
and Peabody & Arnold, were on brief for appellant Samuel J.
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Concemi.
Reginald L. Marden for appellant Walter Ribeck.
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Margaret R. Hinkle, Assistant United States Attorney, with
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whom Wayne A. Budd, United States Attorney, was on brief for
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appellee.
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* Of the Second Circuit, sitting by designation.
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-3-
TORRUELLA, Circuit Judge. On October 2, 1990, a
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federal grand jury returned a 35 Count indictment charging
defendants/appellants, Samuel J. Concemi ("Concemi"), Walter
Ribeck ("Ribeck") and non-appellant Patricia A. Hajjar
("Hajjar"), with one count of conspiracy in violation of 18
U.S.C. 371, 17 counts of bank fraud in violation of 18 U.S.C.
1344, 17 counts of making false statements to a federally insured
bank in violation of 18 U.S.C. 1014, all in violation of 18
U.S.C. 2, aiding and abetting bank fraud and false statements.
The jury returned verdicts of guilty on all counts on December
20, 1990. Concemi was sentenced to 36 months of incarceration to
be followed by two years of supervised release and ordered to pay
restitution and a fine. Ribeck was sentenced to 24 months of
incarceration to be followed by two years of supervised release
and ordered to pay restitution and a fine.
Appellants raise numerous issues as grounds for
reversal. They challenge the propriety of the district court's
sequestering the jury after informing it of allegedly prejudicial
information; the district court's refusal to admit certain
evidence, allegedly denying appellants the right to effectively
cross-examine and impeach one of the government's witnesses; the
district court's requiring Concemi to answer a question on cross-
examination, allegedly in violation of his Fifth Amendment
privilege; the district court's alleged unwarranted instructions
to the jury regarding a government witness' testimony; the
propriety of the trial court's partial denial of a subpoena duces
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-3-
tecum; the sufficiency of the evidence and the district court's
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refusal to grant a continuance at sentencing so that appellants
could make a proof of value of loss. We affirm.
FACTS/BACKGROUND
FACTS/BACKGROUND
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The indictments stemmed from seventeen real estate
transactions involving ComFed Savings Bank ("ComFed"), a
federally-chartered bank insured by the Federal Savings and Loan
Insurance Corporation. Specifically, it was alleged that
Concemi, as the closing attorney, Ribeck, as the real estate
broker and Hajjar, as a ComFed employee,1 executed and concealed
secondary financing agreements on certain "Door Opener" loans,2
in violation of ComFed's underwriting policies.
Concemi's and Ribeck's trial lasted fourteen days.
During the trial certain events transpired, some fortuitous,
which defendants claim deprived them of their right to a fair
trial.
DISCUSSION
DISCUSSION
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I
I
Prejudicial Publicity
Prejudicial Publicity
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____________________
1 Between July of 1985 and April of 1989, Hajjar was a loan
originator for ComFed. During part of that time, August 1987
through April 9, 1989, she worked as the Branch Manager of the
Salem, New Hampshire office of ComFed Mortgage Corporation.
ComFed Mortgage Corporation was a wholly-owned subsidiary of
ComFed Savings Bank.
2 The "Door Opener" loan was a special limited verification
loan, largely intended for first time home buyers. It is alleged
that pursuant to ComFed's underwriting policy, the "Door Opener"
loans at issue required at least twenty percent (20%) down
payment and that undisclosed secondary financing or one hundred
percent (100%) financing was prohibited.
-4-
On the morning of Friday, December 14, 1990, the tenth
day of trial, the Federal Deposit Insurance Corporation ("FDIC")
seized ComFed. By this time in the trial, the jury had heard
testimony from numerous government witnesses and reviewed a
myriad of government exhibits, at times, involving complex real
estate and banking transactions. Defendant Concemi was to take
the stand that same day. The government informed both defense
counsel and the district court of the FDIC takeover of ComFed.
Defense counsel for Ribeck requested that upon termination of the
government's presentation of its case the district court grant a
recess until Monday, so that more could be learned about the
ComFed takeover and whether it might prejudice the defendants'
right to a fair trial. Concemi's counsel joined in the request.
The district court suggested sequestering the jury, but defense
counsel refused. Finally, the district judge stated, "I am going
to keep going today. That is all I am going to say. Do you want
me to tell the jury the bank was taken over by the F.D.I.C. and
they are not to read the media or listen to it?" (Tr. Vol. 10 p.
8). Defense counsel and the government prosecutor consented to
the district court's suggestion. The following instruction was
then given to the jury:
Members of the jury, I want to give you
an instruction: Today at 10:30 this
morning the F.D.I.C. took over ComFed.
Now, that will be in the news tonight and
tomorrow. So I am instructing you not to
read anything that is in the papers and
not to watch TV or listen to a radio
discussion of the significance of the
F.D.I.C. taking over ComFed. And I want
you to honor that instruction. It is
-5-
very important to thepeople in this case.
(Tr. Vol. 10 p. 9). As scheduled, Concemi's testimony began on
Friday, December 14, 1990. Furthermore, the jury was sequestered
later that afternoon until the end of the trial. We are to
determine whether and to what extent the defendants' right to a
fair trial might have been prejudiced by informing the jury of
the ComFed takeover by the FDIC.
The district court's decision whether or not to
sequester the jury, or how to instruct the jury, falls within the
court's broad supervisory discretion. See Herring v. New York,
___ _______ ________
422 U.S. 853, 862 (1975); United States v. Porcaro, 648 F.2d 753,
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755 (1st Cir. 1981) (citing Mastrian v. McManus, 554 F.2d 813,
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818 (8th Cir. 1977), cert. denied, 433 U.S. 913 (1977)). These
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decisions will be affirmed absent an abuse of discretion.
However, "[i]n the absence of a timely objection our review is
limited to examining the record for plain error . . ." United
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States v. Munson, 819 F.2d 337, 340 (1st Cir. 1987). Under the
______ ______
plain error doctrine, we will "correct only 'particularly
egregious errors' . . . that 'seriously affect the fairness,
integrity or public reputation of judicial proceedings.'" United
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States v. Young, 470 U.S. 1, 15 (1985) (quoting United States v.
______ _____ _____________
Frady, 456 U.S. 152, 163 (1982); United States v. Atkinson, 297
_____ _____________ ________
U.S. 157, 160 (1936)). In the present case, there was no
objection by either defense counsel to informing the jury of the
alleged prejudicial information. Defense counsel did express
concern to publishing the FDIC takeover to the jury, but
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ultimately consented to the district court's instructions. Thus,
we must review the record for plain error.
This Court has never reviewed a case where the alleged
prejudicial information was published to the jury by the district
court itself and then the jury sequestered in order to shield it
from prejudice that might result from that same information. We
have, however, discussed the proper procedures that a district
court should take when potentially prejudicial information may
have reached the jury. Although not dispositive on the issue
presented here, those cases are instructive.
In United States v. Perrotta, 553 F.2d 247 (1st Cir.
______________ ________
1977), we adopted the standard annunciated in Margoles v. United
________ ______
States, 407 F.2d 727 (7th Cir.), cert. denied, 396 U.S. 833
______ _____________
(1969):
[W]here prejudicial publicity is brought
to the court's attention during a trial
. . . the court must ascertain if any
jurors who had been exposed to such
publicity had read or heard the same.
Such jurors who respond affirmatively
must then be examined, individually and
outside the presence of the other jurors,
to determine the effect of the publicity.
However, if no juror indicates, upon
inquiry made to the jury collectively,
that he has read or heard any of the
publicity in question, the judge is not
required to proceed further.
Perrotta, 553 F.2d at 250, (quoting Margoles, 407 F.2d at 735).
________ ________
Of course the district court must first determine whether or not
-7-
the information is actually prejudicial.3 Porcaro, 648 F.2d at
_______
757 (citing Perrotta, 553 F.2d at 249-50). Generally, it is
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incumbent upon counsel to make a timely request that the jurors
be polled. However, "there may be cases in which the likelihood
of prejudice is so great as to require the trial judge to
question the jurors sua sponte . . ." Id., (citing Perrotta,
___ ______ __ ________
553 F.2d at 251 & n.9; United States v. Beitscher, 467 F.2d 269,
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274 (10th Cir. 1972)).
In the case at bar, it is highly unlikely that the jury
had any knowledge of the ComFed takeover which took place on the
morning of December 14, 1990.4 Thus this case differs from
those where the jury already has been or may have been exposed to
potentially prejudicial publicity. However, the same principles
apply here. In order to assure that defendants are afforded
their due process right to a fair trial, the district court
should do everything within its authority to insure that
prejudicial publicity not reach the jury.
If upon learning of potentially prejudicial
information, the district court thinks that sequestration is
____________________
3 The district court's instructions to and sequestration of the
jury indicate the fact that the district court considered the
ComFed takeover to be potentially prejudicial.
4 News of the ComFed takeover by the FDIC was provided to the
government prosecutor by the Federal Bureau of Investigation on
the morning of December 14, 1990. At that time the ComFed
takeover was not made public. It was made public later that day.
We feel comfortable in assuming that the jurors had no knowledge
of the ComFed takeover on the morning of December 14, 1990.
-8-
warranted, the jury should be sequestered.5 However such
extreme measures are not always necessary. The district court
still has the option of instructing the jury, as it did here, to
avoid the publicity, without disclosing its content, in whatever
manner the particular circumstances dictate. Here the district
court, after conferring with and getting consent from defense
counsel, instructed the jury to disregard any news of the ComFed
takeover. Appellants cannot now seek reversal for the district
court's instruction, of which they were the proponents. Neither
can they show that the district court's actions constituted error
much less plain error.
II
II
The Prospectus
The Prospectus
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During the course of the trial, defendants were denied
the opportunity to admit into evidence a lengthy Prospectus
outlining some of ComFed's underwriting policies. The Prospectus
allegedly proved that ComFed's underwriting policies permitted
secondary financing with at least some of the "Door Opener" loans
involved herein. Appellants claim that the Prospectus would have
impeached earlier testimony given by one of the government's
chief witnesses, ComFed's Chief Executive Officer, Jack Zoeller
("Zoeller"); that secondary financing was not permissible. The
district court sustained the prosecution's objection to the
admission of the Prospectus on the grounds that it was irrelevant
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5 As stated earlier, the decision to sequester falls within the
sound discretion of the district court.
-9-
and that it would confuse the jury. (Tr. Vol. 3 p. 114, Vol. 3
p. 116, Vol. 3 p. 118).
Contrary to defendants' assertions, Zoeller testified
that some "Door Opener" loans, the full verification version, did
in fact permit secondary financing. Furthermore, Zoeller
testified that under no circumstances was undisclosed secondary
financing permitted. (Tr. Vol. 3 pp. 43-44). Defendants made no
proffer that the Prospectus would refute or impeach Zoeller's
testimony. "The Sixth Amendment right of a criminal defendant
'to be confronted with the witnesses against him' includes the
right to impeach credibility through cross examination." United
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States v. Tracey, 675 F.2d 433, 437 (1st Cir. 1982) (quoting
______ ______
Davis v. Alaska, 415 U.S. 308, 315-16 (1974)). However, the
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right to cross-examine is not absolute. "The court need not
permit unending excursions into each and every matter touching
upon veracity if a reasonably complete picture has already been
developed." United States v. Fortes, 619 F.2d 108, 118 (1st Cir.
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1980). The trial court's supervision and control over cross-
examination is a discretionary function, and we review those
decisions under an abuse of discretion standard. See Tracey, 675
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F.2d at 437-38. In reviewing the transcripts of the trial, we
note that defendants were allowed to cross-examine Zoeller on a
wide range of topics for a considerable length of time.6 We
hold that the defendants' Sixth Amendment right was not violated
____________________
6 Cross examination of Zoeller started on December 4, 1990 and
continued through the next day, and extends over 150 transcript
pages. (Tr. 3-95 - 4-103).
-10-
and the district court did not abuse its discretion in excluding
the Prospectus. Therefore, exclusion of the Prospectus does not
warrant reversal.
III
III
Fifth Amendment Privilege
Fifth Amendment Privilege
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While testifying on cross-examination, Concemi
attempted to invoke his Fifth Amendment privilege against self-
incrimination. When asked whether he knew that the information
on a certain HUD-17 certificate involved in one of these sales
was not true and accurate when he signed it, Concemi refused to
give a direct answer. On advice of his counsel, Concemi
attempted to exercise his Fifth Amendment right to remain silent.
To this, in the presence of the jury, the district court stated:
"I rule that you have no Fifth Amendment rights, in view of the
fact you testified on direct, and this far on cross examination.
So I am telling you to answer that question." (Tr. Vol. 10 II p.
76). Concemi claims that the district court then failed to
instruct the jury not to draw any inference against Concemi
because he invoked his Fifth Amendment privilege. In effect,
according to Concemi, the district court shifted the burden to
Concemi to prove his innocence. He claims that this error alone,
____________________
7 HUD-1 certificates are prepared forms commonly used in
mortgage loan transactions as settlement statements. The
standard language on the HUD-1 certificate contains an
attestation clause which in the transactions involved here reads
as follows: "The HUD-1 Settlement Statement which I prepared is
a true and accurate account of this transaction. I have caused
or will cause the funds to be disbursed in accordance with this
statement." The closing attorney, in this case Concemi, signs
the clause in preparing the documents for the loan transaction.
-11-
coupled with the prejudicial jury announcement of the ComFed
takeover, all on the day that Concemi took the stand, requires
reversal and a new trial. We disagree.
If a criminal defendant takes the stand and testifies
in his own defense, "his credibility may be impeached and his
testimony assailed like that of any other witness, and the
breadth of his waiver is determined by the scope of relevant
cross-examination." Brown v. United States, 356 U.S. 148, 154-55
_____ _____________
(1958); see also United States v. Nivica, 887 F.2d 1110, 1117
________ _____________ ______
(1st Cir.), cert. denied, 494 U.S. 1005 (1989). Before
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attempting to invoke his Fifth Amendment privilege, Concemi
testified extensively on direct examination, and up to this point
on cross-examination, answering questions regarding HUD-1
certificates in 11 other transactions involved in this case. As
to those issues, he had waived his Fifth Amendment privilege on
cross-examination. The district court properly apprised Concemi
that his privilege was waived and instructed him to answer the
question. Moreover, Concemi's trial counsel did not request that
the district court instruct the jury not to draw any inferences
from the instruction. Thus we can only reverse for plain error.
We find none.
Furthermore, Concemi's contention that he was
prejudiced by the district court's comment, and that the burden
of proof was shifted to him, is meritless. In its instructions
to the jury, the district court repeatedly safeguarded Concemi's
presumption of innocence and reconfirmed that the government and
-12-
not the defendants bore the burden of proof. "The burden of
proving that each defendant is guilty rests upon the Government.
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The burden is not on the defendants to prove that they are not
_____________________________________
guilty. The burden of proof remains on the Government throughout
________________________________________________________
the entire trial, and at no stage of the case does it shift to
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the defendants." (Tr. Dec. 19 p. 4) (emphasis added). Any
prejudice that could have resulted from the district court's
instructing Concemi to answer the question amounted to harmless
error and certainly did not rise to a magnitude justifying
reversal, as it was cured by the final instructions to the jury.
See United States v. Maguire, 918 F.2d 254, 268 (1st Cir.), cert.
___ _____________ _______ _____
denied, ___ U.S. ___, 111 S. Ct. 1421 (1990).
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IV
IV
Instructions Regarding Testimony
Instructions Regarding Testimony
________________________________
Defendants also claim that the district court's comment
following an answer on cross-examination by Concemi's former
secretary, a government witness, impermissibly interfered with
the jury's assessment of the witness' testimony. The dialogue in
pertinent part was as follows:
Q. How much of a percentage in a given
year was the ComFed work compared to all
of Sam's [Concemi] other work?
A. Not very much at all.
Q. Very minuscule, wasn't it?
A. Yes.
Q. Enough to cheat and steal over?
A. No.
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THE COURT: I want to tell the jury when
a question is asked and answered with the
word "no", the fact the lawyer framed the
question is no evidence of the facts ever
existing.
Go ahead.
MR. BENJOYA [Ribeck's counsel]: I didn't
understand that the lawyer's question is
not evidence.
THE COURT: The lawyer's question is not
evidence of the facts suggested by the
way the question is framed. Why didn't
you kill cock robin? The witness said
no. No evidence whatsoever the person
killed cock robin.
MR. BENJOYA: I agree entirely.
(Tr. Vol. 7 p. 22). No objections to the judge's instruction
were raised by defense counsel. To the contrary, Ribeck's
defense counsel "agree[d] entirely". The issue was not preserved
for appeal by an objection and we can only reverse for plain
error.
"A federal district court judge retains the common law
power to explain, summarize and comment on the facts and
evidence." United States v. Paiva, 892 F.2d 148, 159 (1st Cir.
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1989) (citing Quericia v. United States, 289 U.S. 466, 469-70
________ _____________
(1933); Doherty v. Doherty Insurance Agency, 878 F.2d 546, 553
_______ _________________________
(1st Cir. 1989); Aggarwal v. Ponce School of Medicine, 837 F.2d
________ ________________________
17, 22 (1st Cir. 1988); Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure 2557 (West 1971)). "In
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commenting on the testimony or questioning witnesses, however,
the judge may not assume the role of a witness. Id. (citing
__
Quercia, 289 U.S. at 470; Tyler v. Swenson, 427 F.2d 412, 416
_______ _____ _______
-14-
(8th Cir. 1970); Terrell v. United States, 6 F.2d 498, 499 (4th
_______ _____________
Cir. 1925)). "He may analyze and dissect the evidence, but he
may not either distort it or add to it." Maguire, 918 F.2d at
_______
268 (citing Quericia, 289 U.S. at 470)).
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The district judge acted well within his authority in
instructing the jury on the witness' answer. He merely clarified
the effect of a "no" answer given on cross-examination. Nothing
was said to distort or add to the testimony. Thus, there was no
error.
V
V
The Subpoena Duces Tecum
The Subpoena Duces Tecum
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On Thursday afternoon, December 14, 1990, Ribeck served
a thirty-two paragraph subpoena duces tecum on ComFed requesting
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the production of personnel files, minutes of meetings, financial
statements, bank policies and the like, for over a three-year
period. Compliance with the subpoena was to take place on
Monday, December 17, 1990, at 9:30 a.m. ComFed filed a motion
to quash, arguing that, in light of the breadth of the subpoena,
the limited time allowed for compliance and the inaccessibility
to some of the documents due to the ComFed takeover, it could not
comply fully with the subpoena. The district court granted the
motion to quash, with the exception of four of the subpoenaed
materials. Ribeck contends that the district court erred in
partially granting the motion to quash, as the documents which he
sought to produce would have contradicted the testimony of the
prosecution witnesses.
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"The scope of discovery is within the discretion of the
district court. We review a district court's discovery ruling
for abuse of discretion." United States v. Williams, 791 F.2d
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1383, 1387 (9th Cir.), cert. denied, 479 U.S. 869 (1986) (citing
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United States v. Clegg, 740 F.2d 16, 18 (9th Cir. 1984); United
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States v. Duncan, 693 F.2d 971, 979 (9th Cir. 1982), cert.
______ ______ _____
denied, 461 U.S. 961 (1983)). Furthermore, "a ruling quashing a
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subpoena is appealable after conviction, [however] the trial
court has so much discretion in this area that reversal is
unlikely." United States v. Lieberman, 608 F.2d 889, 904 (1st
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Cir. 1979), cert. denied, 444 U.S. 1019 (1980). "The moving
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party must show, among other things, that the material he seeks
is evidentiary and relevant." Id. (citing United Sates v. Iozia,
__ ____________ _____
13 F.R.D. 335, 338 (S.D.N.Y. 1952), cited in United States v.
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Nixon, 418 U.S. 683, 702 (1974)).
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Ribeck's only contention is that he "believes" the
documents would have shown what the true lending policies of
ComFed were and that this could have contradicted government
witnesses. (Brief for Appellant Ribeck pp. 25, 27). Mere
speculation as to the content of documents is hardly a showing
of relevance. The district court granted discovery of those
requests which it felt were reasonable and relevant. Considering
the time constraints, the inaccessibility of some of the
documents, the questionable relevance of the documents and the
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breadth of some of the requests,8 we cannot say that it was an
abuse of discretion to limit the scope of the subpoena. See id.
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Even assuming the relevance of the subpoenaed documents, we see
nothing in the record which leads us to conclude that the trial
court abused its broad discretion in denying the request.
VI
VI
Sufficiency of the Evidence
Sufficiency of the Evidence
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Defendants claim that the evidence presented at trial
was insufficient to sustain a conviction for conspiracy, bank
fraud and making false statements to a federally-insured
institution. A review of the record indicates the contrary.
At the close of the government's case, the defendants
filed motions for judgments of acquittal which were denied. (Tr.
Vol. 10 pp. 65, 77). The defendants proceeded to present their
case, but failed to renew their motions after offering evidence
in their defense. It is an established rule in this Circuit that
in order to challenge the sufficiency of the evidence after a
conviction, the defendant must have moved for an acquittal at
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8 For example, paragraph 30 of the subpoena sought production
________
of:
Any and all employment agreements,
payroll records, or any other writings
evidencing employment agreements between
the following employees of ComFed as to
how and in what manner they were paid for
their services and the reasons why they
either resigned f[ro]m employment or were
terminated from employment: Frank Buco,
Patricia Hajjar, Cynthia Lawrenson,
Valerie Rydell, Peter G. Savard, Cynthia
Erakine, Vincent Crupi, and Donna
Balsamo.
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trial. United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.
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1982), cert. denied, 460 U.S. 1069 (1983). Absent a renewal of
____________
the motion for acquittal after presenting the case for the
defense, the motion for acquittal is considered waived. Hence in
order to prevail on a challenge to the sufficiency of the
evidence, "the defendants must then demonstrate 'clear and gross'
injustice." Id. (quoting United States v. Kilcullen, 546 F.2d
__ _____________ _________
435, 441 (1st Cir. 1976), cert. denied, 430 U.S. 906 (1977)). We
____________
are unable to find, in light of the evidence presented at trial,
that the defendants convictions were clearly and grossly unjust.
At trial, it was disclosed that Concemi, as closing
attorney, and Ribeck, as the seller in some of the transactions
and real estate agent in others, executed or caused to be
executed inaccurate HUD-1 certificates or settlement statements.
The certificates were inaccurate in that they failed to disclose
the fact that secondary mortgages were issued in connection with
the loan transactions. In fact, there is no mention of secondary
financing on the HUD-1 certificates which were returned to
ComFed. Ribeck did prepare accurate documents, reflecting the
existence of second mortgages, but they were kept in his personal
office files and never revealed to ComFed.
Concemi prepared "Deviation Agreements" or "Memos of
Sale" which he had the buyers execute in connection with the sale
of the homes. These "Deviation Agreements" and "Memos of Sale,"
likewise, were never made part of ComFed's files. They were kept
in separate files by Concemi and Ribeck. Concemi did cause these
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documents to be recorded in the proper offices of conveyance.
However, contrary to his assertions, there was no showing that he
ever made that fact known to ComFed. The evidence produced at
trial strongly suggests, and a reasonable jury could have
reasonably concluded, that these documents were concealed from
ComFed.
Conspiracy:
Conspiracy:
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The essential element of a conspiracy is the existence
of an agreement, which may be inferred from "'a development and
collocation of circumstances.'" United States v. Smith, 680 F.2d
_____________ _____
255, 259 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983)
____________
(citations omitted). Stated another way, "conspiratorial
agreement need not be express so long as its existence can
plausibly be inferred from the defendants' words and actions and
the interdependence of activities and persons involved." United
______
States v. Boylan, 898 F.2d 230, 241-42 (1st Cir. 1990), cert.
______ ______ _____
denied, ___ U.S. ___, 111 S. Ct. 139 (1991) (citations omitted).
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There is abundant evidence in the record supporting the
conspiracy conviction. It is apparent that the mutual
cooperation of Concemi, Ribeck and Hajjar was essential in order
to execute the scheme to use secondary mortgages and conceal them
from ComFed. Ribeck and Hajjar specifically told various buyers,
whose loans are the subject of this prosecution, to use Concemi
as their closing attorney. Ribeck suggested that buyers use
ComFed to finance their mortgages. Testimony showed that in at
least one transaction Ribeck paid the buyer's transaction fee
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because the buyer lacked sufficient funds.
Finally, in purchasing other properties, Ribeck used
four of the second mortgages to secure a line of credit from the
New Heritage Bank, requesting that Concemi, because of his
familiarity with the nature of the mortgages and the collateral,
draft the necessary documents. An agreement between the parties
can be easily inferred from this circumstantial evidence.
Bank Fraud:
Bank Fraud:
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18 U.S.C. 1344 states in pertinent part that:
(a) Whoever knowingly executes, or
attempts to execute, a scheme or
artifice-
(1) to defraud a federally chartered or
insured financial institution; or
(2) to obtain any of the moneys, funds,
credits, assets, securities or other
property owned by or under the custody or
control of a federally chartered or
insured financial institution by means of
false or fraudulent pretenses,
representations, or promises, [shall be
guilty of an offense against the United
States].
Ribeck was the seller on five of the mortgages in this case and
the broker on six others. He prepared two sets of addenda to the
purchase and sale agreements, one containing false information
about the second mortgages and one, which was not disclosed to
ComFed but kept in Ribeck's office files, containing accurate
information. Furthermore, Ribeck instructed his employees-
salespersons and agents to follow the same procedure.
Similarly, Concemi was the closing attorney on all 17
transactions. He prepared "Deviation Agreements" and "Memos of
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Sale" which contained the accurate information regarding the
second mortgages. While he provided ComFed with the conventional
closing documents, i.e., HUD-1 certificates, none of which
reflected or disclosed secondary financing, the "Deviation
Agreements" and "Memos of Sale" were never provided to ComFed.
Concemi subsequently recorded or caused to be recorded in the
conveyance records, the "Deviation Agreements" and "Memos of
Sale." However, there was no showing at trial, contrary to his
assertions, that he disclosed the secondary financing to ComFed.
False Statements:
False Statements:
________________
To support a conviction under 18 U.S.C. 1014, false
statements, the government must prove that (i) the defendant made
or caused to be made a false statement or report to a bank upon
an application, commitment or loan, and that the false statement
concerned a material fact; (ii) that the defendant acted
knowingly; (iii) that the false statement or report was made for
the purpose of influencing in any way the bank's action on the
loan; and (iv) that the false statement or report was made to a
bank whose deposits were then insured by the Federal Savings and
Loan Insurance Corporation. Williams v. United States, 458 U.S.
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279, 284 (1982). Again here, the evidence presented at trial
overwhelmingly supports a conviction. Concemi and Ribeck, by
admission and as proven at trial, knowingly executed and caused
to be executed inaccurate HUD-1 certificates. These certificates
were inaccurately completed so that ComFed would issue loans on
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the property in question. In their defense, Concemi and Ribeck
rely on the "Memos of Sale" and "Deviation Agreements" which they
allegedly executed to disclose the true terms of the loans.
However, contrary to their contentions, there was no proof
offered at trial to the jury's satisfaction that these documents
were disclosed to ComFed. Furthermore, the fact remains that
Ribeck and Concemi knowingly executed and caused to be executed
false statements for the purpose of influencing ComFed to make
loans. Thus the convictions for making false statements to a
bank must stand.
The evidence in the record convinces us that the
verdicts were, supported by sufficient evidence and certainly not
clearly gross or unjust. Thus the convictions stand.
VII
VII
Continuance at Sentencing
Continuance at Sentencing
_________________________
Finally, Concemi and Ribeck assert that the trial court
erred in denying their motion for continuance at sentencing so
that they could offer proof of the amount of the victim loss
occasioned by the crimes of conviction. Specifically, Concemi
and Ribeck argue that the district court erred in denying them
the opportunity to present other evidence which would have
reduced the total amount of victim loss represented in the
presentence investigation report.
The presentence report prepared by the Probation
Department calculated ComFed's loss to be $1,043,000. Relying on
four factors, (i) the depressed regional economy; (ii) ComFed's
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lack of internal control as to its lending practices and employee
regulation; (iii) failure of ComFed to dispose of the property in
default on a timely basis; and (iv) ComFed's failure to maintain
the foreclosed property in good repair, the Probation Department
reduced the total loss by $44,000. Thus, under U.S.S.G. 2F1.1
the total amount of victim loss was within the $500,000 to
$1,000,000 range and Ribeck and Concemi were sentenced
accordingly.9
Appellants claim that they should have been given an
opportunity to present other evidence for the district court's
consideration. As an example they state that ComFed purchased
some of the properties subject to these loans at foreclosure
sales and listed these properties as assets. However, in
calculating the loss suffered by ComFed, the probation department
valued the homes and did not take into consideration the fact
that ComFed actually acquired the homes as assets. In short,
appellants claim that the amount of loss should have been
calculated as the difference between the fair market value of the
property, plus interest, minus the price paid by ComFed.10 We
____________________
9 Concemi's base offense level was calculated to be 18, and
Ribeck's 16. The district court enhanced Concemi's sentence base
offense level two points, to 20 for obstruction of justice,
holding that he had testified untruthfully at trial.
10 For example, the amount of loss on one of the loans, the
Vargus loan, was calculated by the probation department to be
$118,000. ComFed purchased the property at foreclosure for
$94,500. At the time of foreclosure the outstanding balance on
the loan was $134,000. Thus, according to appellants the value
of loss should have been calculated as $39,500; the difference
between the loan balance and the price ComFed paid at the
foreclosure sale.
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disagree.
We review the trial court's decision for abuse of
discretion. United States v. Gerante, 891 F.2d 364, 367 (1st
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Cir. 1989). The commentary to U.S.S.G. 6A1.3 states in part
that "[w]hen a reasonable dispute exists about any factor
important to the sentencing determination, the court must ensure
that the parties have an adequate opportunity to present relevant
information. Written statements of counsel or affidavits of
witnesses may be adequate under many circumstances."
The presentence report was issued on February 19, 1991.
The sentencing hearing was not held until March 11, 1991. In the
interim, both defendants filed written objections, Ribeck with
the probation department and Concemi with the district court.
Furthermore, at the sentencing hearing, Ribeck's counsel argued
his objections to the trial judge. Concemi chose not to do so.
It is clear to us that both defendants had ample opportunity to
present evidence to the trial court regarding valuation of victim
loss and in fact took advantage of that opportunity as they saw
fit. The trial judge, based on the evidence presented in the
presentence report and the written and oral objections before
him, made a determination that defendants were not entitled to an
evidentiary hearing to present further proof of loss. We hold
that this determination was well within the trial court's
discretion.
Furthermore, under the applicable guidelines,
appellants would have had to show that the trial court's
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valuation erred by in excess of $450,000 in order to reach the
next level of reduction, $200,000 - $500,000. The only evidence
cited in their briefs is the Vargus loan by which they allege
that the district court overvalued the loss by approximately
$79,000. This falls far short of the $450,000 showing necessary
for a reduction in sentence.
Finally, Concemi was sentenced to 36 months, within the
applicable 33-41 month range, and Ribeck to 24 months, within the
applicable 21-27 month range. Should they have been able to
prove that the amount of victim loss was excessive, thereby
entitling them to the next reduction level, the sentences would
fall in the range or 30-37 months for Concemi and 18-24 months
for Ribeck. Under their present sentences, they would still fall
within the reduced sentencing levels, thus any error in the
calculation of the value of loss would be harmless. See United
___ ______
States v. Bermingham, 855 F.2d 925, 926 (2d Cir. 1988) (holding
______ __________
that the overlapping of the guideline ranges was designed to
minimize the need to resolve these type of disputes, unless there
is a showing that the sentences imposed were near or at the low
end of the applicable guideline range).
The decision of the district court is affirmed.
affirmed.
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