MESKILL, Circuit Judge:
James F. O'Connor and Bernard J. Coven appeal from judgments of the United States District Court for the Southern District of New York, Carter, J., entered after a trial by jury convicting each of one count of conspiracy, 18 U.S.C. § 371 (1976); eight counts of mail fraud, 18 U.S.C. §§ 1341-42 (1976); one count of wire fraud, 18 U.S.C. §§ 1342-43 (1976); and one count of obstruction of justice, 18 U.S.C. § 1503 (Supp. III 1979). In addition, Coven was convicted of one count, and O'Connor of two counts of false declaration, 18 U.S.C. § 1623 (1976 & Supp. III 1979). The district court sentenced both appellants to ten years imprisonment
Coven and O'Connor owned beneficial interests in Euro-Swiss International Corporation ("Euro-Swiss"), a company which sold commodities contracts to retail operations which in turn sold similar contracts to the public. Coven, an attorney, was counsel to Euro-Swiss. The company operated out of Coven's New York law offices.
Euro-Swiss sold "deferred delivery" contracts for various commodities such as gold, silver and currencies. While these contracts gave the purchaser the right to obtain delivery of a particular commodity at a set price on a specified date, delivery was rarely, if ever, demanded. Instead, Euro-Swiss would liquidate the contracts by paying to the purchaser the equity value — the excess of the market price of the commodity over the contract price — on the date set for delivery. Thus, if the market price of the commodity exceeded the contract price on the delivery date, the contract would yield a profit to the purchaser. If the market price on the delivery date was lower than the contract price, the purchaser simply would forgo his option to exercise his rights under the contract and the value paid for the contract would be profit to the seller.
Morgan Harris & Scott, Ltd. ("MHS"), and later, Harrison Prescott, Inc. ("HP") were major customers of Euro-Swiss. These companies, both owned and operated by one Earl Wilt, were so-called "boiler room" operations which used high pressure telephone sales and other tactics to induce the public to purchase contracts for the deferred delivery of commodities.
In early August 1979, the United States Postal Inspectors executed a warrant to search the premises of MHS and HP, seizing the companies' books and records and effectively shutting them down. Later that month, the Commodity Futures Trading Commission ("CFTC") filed a complaint seeking to enjoin MHS and HP from conducting further business and to have a receiver appointed. District Judge Constance B. Motley appointed Steven J. Glusband as receiver on September 28, 1979.
During the period between the execution of the search warrant by the Postal Inspectors and the commencement of suit by the CFTC, Earl Wilt agreed to plead guilty to one count of mail fraud and to various violations of state law, and to cooperate with the government in its investigation of Euro-Swiss.
When MHS and HP were shut down, they had several outstanding contracts with Euro-Swiss. As these contracts matured, Euro-Swiss became obligated to pay substantial sums of money to MHS and HP and, therefore, to the receiver. In an attempt to avoid paying these sums, Coven and O'Connor embarked on a course of action designed to defraud the district court and the receiver by transferring Euro-Swiss funds to out-of-state and personal accounts, executing and backdating a fraudulent customer agreement between Euro-Swiss and the receiver's companies, altering the books and records of Euro-Swiss to reflect fabricated transactions and giving false testimony at an attachment proceeding instituted by the receiver against Euro-Swiss.
I. The Recusal Claim
Before we address the allegations relating to the criminal trial we first examine the earlier proceedings before Judge Motley which appellants claim taint the subsequent criminal trial, thereby requiring reversal.
Appellants strenuously argue that the civil attachment proceeding, out of which some of the criminal charges and some of the evidence presented in the criminal trial grew, was invalid due to Judge Motley's failure to recuse herself under 28 U.S.C. § 455.
A few weeks later, Glusband filed a complaint against Euro-Swiss and obtained an ex parte order attaching Euro-Swiss' assets. Glusband moved to confirm the order, and Euro-Swiss cross-moved for an order vacating the attachment. Judge Motley scheduled the matter for an immediate hearing after which she denied the motion to vacate the attachment. Appellants argue here as they did before Judge Carter that Judge Motley's prior knowledge of evidence received from Strauss relating to attempts to defraud Glusband required the Judge to recuse herself from presiding over this hearing.
Section 455(b)(1) requires recusal when a judge has "personal knowledge of disputed evidentiary facts concerning the proceeding ...." The term "personal" was carried over from 28 U.S.C. § 144 when section 455 was amended in 1974. Pub.L.No.93-512, 88 Stat. 1609. This amendment to section 455 was intended to make the statutory standards
In this case, the information in question was obtained by Judge Motley when the government sought her approval of an agreement by a receiver she had appointed to cooperate in a criminal investigation. It was clearly within her judicial responsibilities to be informed of proposed activities that might impair the receiver's ability to perform his duties properly. Therefore, Judge Motley was not required to recuse herself under 28 U.S.C. § 455(b)(1).
Appellants also claim that recusal was required under 28 U.S.C. § 455(a), asserting that Judge Motley's impartiality in the attachment proceeding "might reasonably be questioned" because of her familiarity with matters in dispute. Section 455(a) does not contain the term "personal" found in section 455(b)(1). Thus, it has been asserted that this section does not contain the requirement that to be disqualifying bias must spring from an extrajudicial source. See Note, Disqualification of Federal Judges for Bias or Prejudice, 45 U.Chi.L.Rev. 236, 254-57 (1978). As this Court has said in the past,
United States v. Wolfson, 558 F.2d at 63 (footnote omitted).
However, under section 455(a) considerations, the fact that Judge Motley came upon the allegedly prejudicial information in her judicial rather than personal capacity, even if not dispositive, is relevant to an analysis of the appearance of impartiality. See In re International Business Machines Corp., 618 F.2d at 929; United States v. Daley, 564 F.2d 645, 651-52 (2d Cir. 1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1508, 55 L.Ed.2d 530 (1978). In Wolfson, this Court held that section 455(a) did not require a judge to recuse himself from coram nobis proceedings which touched on activities at two trials over which he presided. The Court said:
558 F.2d at 64. See also, In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 964-65 (5th Cir.), cert. denied, 449 U.S. 888,
In the instant case, appellants claim that Judge Motley's prior knowledge of evidence relevant to the attachment hearing rendered her impartiality reasonably questionable. We disagree. Certainly, her prior knowledge was no more extensive than that of the trial judge in Wolfson, and there is no other basis in the record for questioning her ability to be fair and impartial.
II. Improprieties in the Civil Proceedings
Appellants claim that the government may have used the civil proceedings to "create" incriminating evidence for use at the criminal trial. They note that the government's criminal investigation had begun by the time the early stages of the civil proceedings were underway and that several parties to the civil case were actively cooperating with the government throughout the receivership and attachment proceedings. Appellants assert that they are entitled at least to an evidentiary hearing to determine whether the government manipulated the civil case to create criminal charges and supporting evidence. To buttress this claim, Coven directs our attention to cases in which perjury indictments have been invalidated on the ground that the perjurious testimony was given before improperly convened grand juries or other incompetent tribunals. E. g., Brown v. United States, 245 F.2d 549 (8th Cir. 1957); United States v. Icardi, 140 F.Supp. 383 (D.D.C.1956). Coven also cites decisions which held that the government, purporting to be investigating civil matters, used improper investigatory techniques or civil discovery mechanisms to obtain otherwise unavailable evidence for use in criminal prosecutions. E. g., United States v. Parrott, 248 F.Supp. 196 (D.D.C.1965); United States v. Guerrina, 112 F.Supp. 126 (E.D.Pa.1953). These cases do not support appellants' position.
The civil proceedings conducted by receiver Glusband, as well as the preliminary proceedings conducted prior to his appointment, were begun for the legitimate purpose of recovering money owed to MHS and HP. It is clear that Judge Motley had jurisdiction over this matter. Therefore, the "incompetent tribunal" cases are inapposite. Moreover, we find no evidence that the government used civil discovery mechanisms or otherwise duped appellants into producing incriminating evidence by representing falsely that it was exploring a civil matter. Thus, Parrott and Guerrina do not help appellants.
The record in this case reveals that a legitimate civil action was brought by the
III. Confrontation Claims
A. The Limitation on Repetitious Cross-Examination
O'Connor claims that his right to cross-examine witnesses against him was denied when the trial court refused to allow his lawyer to repeat questions already asked or to explore areas already covered by Coven's cross-examination. Federal Rule of Evidence 611(a) permits the trial court to "exercise reasonable control over the mode and order of interrogating witnesses" in order to "make the interrogation ... effective for the ascertainment of the truth [and to] avoid needless consumption of time...." While the trial court's discretion to curtail cross-examination is limited by the Sixth Amendment, Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), we do not believe that the limit was reached in this case.
The trial court cut short the questioning by O'Connor's lawyer several times, but reminded defense counsel frequently that he would be permitted to expand upon or delve more deeply into areas covered during Coven's cross-examination. O'Connor's lawyer was prevented only from asking the same questions that Coven's lawyer had asked. The trial court's ruling here was reasonable and did not preclude O'Connor from effectively cross-examining witnesses. See United States v. Praetorius, 622 F.2d 1054, 1061 (2d Cir. 1979), cert. denied sub nom. Lebel v. United States, 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 (1980).
B. Interview of Agent Livertucci
Judge Carter, in the presence of the prosecutor but not of the defense counsel, questioned IRS Agent Livertucci, who had interviewed Earl Wilt, to determine whether the IRS possessed any material subject to production under the Jencks Act, 18 U.S.C. § 3500 (1976). Appellants claim that this in camera interview violated their right to confront witnesses against them.
However, Agent Livertucci was never called as a witness against Coven and O'Connor and therefore no Sixth Amendment confrontation rights were implicated. United States ex rel. Meadows v. New York, 426 F.2d 1176, 1184 (2d Cir. 1970), cert. denied, 401 U.S. 941, 91 S.Ct. 944, 28 L.Ed.2d 222 (1971). Furthermore, an in camera interview is expressly authorized by 18 U.S.C. § 3500(c), and neither Coven nor O'Connor objected when the court announced its intention to conduct such an interview. Also, we have examined the materials turned over to the court by Agent Livertucci, and they contain absolutely nothing that the government was required to produce under either the Jencks Act or under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court did not err in its handling of Agent Livertucci.
C. Earl Wilt's Attorney-Client Privilege
Appellants also assert that their right of confrontation was denied when Earl Wilt was permitted to invoke the attorney-client privilege when questioned about conversations he had with his lawyers concerning his cooperation agreement with the government. Appellants claim that these questions were relevant to Wilt's state of mind or motivation when signing the agreement and, therefore, to his bias.
It is clear that government witnesses have a right to assert the attorney-client privilege on cross-examination. E. g., United States v. Sindona, 636 F.2d 792, 804-05 (2d Cir. 1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981). However, where assertion of the privilege
D. The White Powder
Appellants' final confrontation clause claim is that they were not allowed to explore significantly the origin and content of certain "white powder" found in the offices of MHS and HP. This claim is groundless. Appellants were permitted to investigate the circumstances surrounding the discovery of the powder and the action of the government with respect to it. They were precluded only from asking questions about Wilt's use of drugs — questions for which they showed no reasonable basis.
IV. The Government's Summation
Appellants claim that the government in its summation improperly commented on appellants' failure to call a particular witness, that the prosecutor made other improper comments including the suggestion that the missing witness would have damaged the defendants' case, and that the prosecutor implied to the jury that she had personal knowledge of facts prejudicial to appellants which were not in evidence.
It is well established that the government may comment on the failure of a defendant to refute government evidence or to support his own claims.
United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977). See United States v. Sindona, 636 F.2d 792, 805-07 (2d Cir. 1980), cert. denied, ___ U.S. ___, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981); United States v. Barnes, 604 F.2d 121, 148 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980); United States v. Rodriguez, 556 F.2d 638, 641-42 (2d Cir. 1977), cert. denied, 434 U.S. 1062, 98 S.Ct. 1233, 55 L.Ed.2d 762 (1978). In the instant case, the prosecutor commented on the failure of appellants to call Harriet Gilmore, a Euro-Swiss employee, to ask if she had altered a Euro-Swiss ledger which the prosecution charged contained entries of fictitious transactions added to the ledger long after the transactions were claimed to have occurred. Appellants called another Euro-Swiss employee, Joan Werring, who testified that she had not altered the ledger, apparently attempting to support the defendants' claim that the challenged entries were genuine. The prosecutor's summation pointed out the absurdity of calling Werring instead of Gilmore to testify about the challenged entries when uncontradicted evidence showed that the entries were in Gilmore's handwriting.
On rebuttal, the prosecutor asserted that "the law does permit me to make" the argument that the jury could infer that appellants' failure to call Harriet Gilmore was due to their fear of damaging information that Gilmore would have supplied, and that if this argument were improper, defense counsel's objection to it "would have been sustained." These assertions were made in response to defense counsel's closing statement which suggested that the prosecutor was acting improperly when she commented on appellants' failure to call Gilmore and that the prosecutor "knows better."
Finally, appellants claim that the prosecutor implied personal knowledge of facts and was "testifying" during summation. A review of the transcript demonstrates that this claim is wholly unfounded. The only comment that arguably comes even close to being improper is the prosecutor's statement that had the defendants called Harriet Gilmore to testify, her testimony "would have buried" them. However, when viewed in the context of the entire summation, United States v. Sindona, 636 F.2d at 806; United States v. Williams, 583 F.2d 1194 (2d Cir. 1978), cert. denied, 439 U.S. 1117, 99 S.Ct. 1025, 59
V. Jury Instructions
Appellants claim that they were prejudiced by the trial court's jury charge on the conspiracy count which referred several times to "two or more" conspirators when the conspiracy charged involved only Coven and O'Connor. Appellants contend that this charge invited the jury to "speculate about the existence of multiple conspiracies" and left "the basis for the jury's verdict ... totally unclear...." Brief for Appellant Coven at 45. Appellants concede that the "two or more" language was contained in their own requests to charge, but argue that the requests were prepared long before the close of the trial in reliance on the government's bill of particulars which alleged that there were several other conspirators.
We are unpersuaded by appellants' arguments on this point. The jury charge paralleled the language of the conspiracy statute, 18 U.S.C. § 371. Moreover, the trial judge specifically charged that should the jury find either Coven or O'Connor not guilty of conspiracy, it must acquit both. The reference to two or more conspirators was, at most, harmless error.
VI. Fourth Amendment Claim
Appellants argue that their Fourth Amendment rights were violated when government informant Wilt surreptitiously recorded conversations conducted in his presence but to which he was not a party, and read into the tape recorder the contents of various Euro-Swiss documents. These recordings were made after Wilt signed a cooperation agreement with the government and went to Coven and O'Connor claiming to seek employment. This claim is without merit.
Appellants first question the vitality of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), which permitted the use of tape recordings of conversations between a government agent and the defendant to be used as evidence in the defendant's criminal trial. White has not been overruled and we are unquestionably bound by it.
This claim is controlled by United States v. Girard, 601 F.2d 69, 72 (2d Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979), which held that the introduction into evidence of a tape recording of conversations conducted in the presence of a government agent did not violate the Fourth Amendment even though the agent was not a party to all of the conversations recorded. The Girard panel reasoned that the defendant had no reasonable expectation of privacy that would preclude the government agent, who was in the room with the defendant's permission, from testifying about what he was able to hear. Therefore, the defendant could not complain because the agent recorded his statements. Girard forecloses appellants' claim that Wilt's recording of conversations to which he was not a party violates the Fourth Amendment.
VII. Harriet Gilmore's Civil Court Testimony
Appellants claim that the government misled both the trial court and appellants by stating in its bill of particulars that Harriet Gilmore, an employee of Euro-Swiss who allegedly made fraudulent entries in a Euro-Swiss ledger, was an unindicted co-conspirator, but abandoning this claim after trial. Appellants assert that as a result of this claimed ruse, they failed to object to the government's reading into the record of portions of Gilmore's civil court testimony, believing that this testimony was hearsay, but within the co-conspirator exception to the hearsay rule. They claim that if Gilmore was not shown to be a co-conspirator, this testimony was inadmissible.
The short answer to this claim is that the evidence in question is not hearsay because it was not offered for the truth of the matters asserted. See Fed.R.Evid. 801(c). The evidence was a portion of the transcript of the attachment hearing during which Coven called Gilmore to provide a foundation for the introduction of the altered Euro-Swiss ledger which he used in an attempt to defeat the order of attachment. Thus, the transcript was read into the record in the criminal trial not for the truth of Gilmore's statements, but as direct evidence of Coven's act of obstruction of justice.
VIII. The Conspiracy Count
Appellants argue that the conspiracy count is legally insufficient because it charges a conspiracy to obstruct justice beginning in September 1979, more than a month before the filing of the civil lawsuit that was the target of the obstruction. We find no merit in this claim. The government alleged as objects of the conspiracy not only the obstruction of justice in the civil suit, but also attempts to avoid paying sums owed to MHS and attempts to defraud the receiver. The jury could well have found on this record that the conspiracy began long before the receiver filed suit in November.
Appellants also claim that the trial court erred in refusing to allow them to introduce court papers from a state court suit involving government informant Wilt but not Coven or O'Connor. These papers had been marked Coven's Exhibit S for identification. Appellants assert that this evidence would have cast doubt on government claims that O'Connor and Wilt, in referring to a "receiver" in a recorded conversation on September 5, 1979, were referring to a receiver that they anticipated would be appointed for MHS and HP. Coven and O'Connor contend that the court papers in Exhibit S would have shown that Wilt and O'Connor may have been referring to a receiver in Wilt's other lawsuit. Since the government used the September 5 tape as evidence that the Coven-O'Connor conspiracy began by early September, appellants claim that Exhibit S was highly relevant for the purpose of defeating the conspiracy count.
After examining Exhibit S, we feel that its usefulness for the purpose now asserted by appellants is doubtful. Furthermore, this purpose was asserted for the first time on appeal. The questioning leading to the offer of the papers strongly suggested that appellants' purpose in using the exhibit was to imply that allegations in the papers prejudicial to Wilt were true or to show that Wilt had acted improperly in the other lawsuit. Appellants do not now claim that Exhibit S was properly admissible on these grounds. Given appellants' failure to alert the trial judge to the purpose they now assert for their offer and the doubtful weight of the evidence even for
IX. Juror Number 7
Appellants claim that the trial court abused its discretion by refusing to voir dire juror number 7, who had advised the judge that he had been a juror two years earlier in a state court case which was "almost identical" to this one in that evidence had been collected surreptitiously. The trial court immediately informed all counsel that the colloquy had taken place and stated his opinion that the matter need not be pursued. Defense counsel neither objected nor requested a voir dire. Eleven days later, appellants expressed concern about the juror's statements and asked the court to voir dire the juror or to excuse him. Appellants explained their delay in complaining by asserting that they had not previously had a chance to examine the transcript of the court's conversation with the juror. After considering appellants' request overnight, the judge denied it, stating that juror number 7 had been attentive throughout the trial and had not appeared to form premature conclusions on the merits of the case. Appellants claim that this ruling denied them a fair and impartial jury.
This Court accords broad discretion to the trial judge to assess allegations of juror bias or misconduct, believing that "the trial judge observing the jury on a day to day basis ... is in the best position to sense the atmosphere of the courtroom as no appellate court can on a printed record." United States v. Barnes, 604 F.2d 121, 144 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980). See also United States v. Panebianco, 543 F.2d 447, 457 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1128, 51 L.Ed.2d 553 (1977); United States v. Flynn, 216 F.2d 354, 372 (2d Cir. 1954), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955). In Barnes, this Court approved the trial court's refusal to dismiss or to conduct a voir dire of a juror who had made an obscene gesture toward defense counsel outside the courtroom. Such juror activity plainly is significantly more indicative of possible bias or prejudice than that of juror number 7 in this case. On this record, we cannot conclude that Judge Carter abused his discretion.
X. The Wire and Mail Fraud Counts
Coven claims that:
Appellant Coven's Brief at 49. Accordingly, he asserts, the wire fraud count should be dismissed as to him.
Coven's conclusion is incorrect.
United States v. Corey, 566 F.2d 429, 430-31 n.2 (2d Cir. 1977). There was ample evidence in the record to support a finding that Coven was a participant in the overall scheme to defraud MHS, HP, receiver Glusband
In addition to Coven's specific claim that there was insufficient evidence to link him to the wire fraud, appellants contend generally that there was no evidence that the mailings and the wiring charged by the government were done other than in the usual course of business. Appellants assert, therefore, that there was insufficient evidence to prove that the mailings and the wiring were in furtherance of a scheme to defraud.
The evidence viewed, as it must be, 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), renders this claim ridiculous. There was abundant evidence that the mailings were used to open out-of-state bank accounts in the names of "dummy" corporations and to transfer Euro-Swiss assets into these and other accounts outside New York in an attempt to conceal monies from MHS, HP and the receiver, and to place them beyond the reach of New York State attachment. There was evidence establishing that the wire transfer was undertaken to remove some of the assets in one of the out-of-state accounts to O'Connor's personal account at Bache Halsey Stuart Shields, Inc. The mailings and wiring in this case were clearly central, not incidental, to the scheme to defraud. See, e. g., United States v. Braunig, 553 F.2d 777, 781-82 (2d Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2686, 53 L.Ed.2d 277 (1977).
XI. O'Connor's Effective Assistance of Counsel Claim
O'Connor claims that he was denied effective assistance of counsel at the attachment proceeding because Judge Motley failed to inform him that his lawyer, Coven, was under criminal investigation at the time the attachment hearing was held. This claim is frivolous. Even if the Sixth Amendment right to counsel applied to civil cases, which it does not, e. g., Watson v. Moss, 619 F.2d 775, 776 (8th Cir. 1980), it is clear that O'Connor knew of and participated in Coven's criminal activities both prior to and during the attachment hearing. Under these circumstances, this claim merits no further discussion.
Appellants' final point charges that the trial court abused its discretion in sentencing by relying on an inaccurate and prejudicial sentencing memorandum filed by the government and by pronouncing a "Draconian" sentence, so harsh as to shock the conscience, on young, first-offender O'Connor.
Before passing sentence in this case, the trial judge allowed Coven and O'Connor, both personally and through counsel, to state objections to specific points in the government's memorandum and to offer whatever other statements they wished the court to consider in sentencing. Appellants did not request additional time to prepare a more formal response to the government's memorandum. Moreover, Judge Carter specifically stated that his sentence would be based on the crimes of which appellants had been convicted and on his observance of appellants' demeanor throughout the trial, and not on any contested matters in the government's memorandum.
An appellate court's power to review a sentence within the statutory range is extremely limited. E. g., Dorszynski v. United States, 418 U.S. 424, 440-41, 94 S.Ct. 3042, 3051-52, 41 L.Ed.2d 855 (1974); United States v. Swarovski, 592 F.2d 131, 133-34 (2d Cir. 1979). In this case, we cannot say that the trial court abused its discretion to a degree that would permit this Court to interfere. Indeed, the sentences imposed in this case appear reasonable in light of the serious nature of the offenses involved.
We find no error in the judgments below. Affirmed.
The MHS and HP contracts, which purported to be deferred delivery contracts rather than commodity options, were apparently designed to circumvent the prohibition on sales of commodity options. This attempt to disguise the contracts was destined to fail. See, e. g., CFTC v. U.S. Metals Depository Co., 468 F.Supp. 1149 (S.D.N.Y.1979).
This Court has stated that dismissal of an indictment is to be used only "in the rare case, where it is impossible to restore a criminal defendant to the position that he would have occupied vis-a-vis the prosecutor...." United States v. Fields, 592 F.2d 638, 648 (2d Cir. 1978), cert. denied, 442 U.S. 917, 99 S.Ct. 2838, 61 L.Ed.2d 284 (1979).
Mr. Anolik [O'Connor's counsel]: Objection, your Honor.
The Court: Overruled.
Mr. Anolik: We have no obligation to call anyone.
The Court: That objection is overruled.
Ms. Strauss: Mr. Gold [Coven's counsel] asked Joan Werring: Did you alter, did you fabricate, that customer ledger? But Harriet Gilmore is not on the stand and they are not asking that question of her. Why wasn't she called?
Mr. Anolik: ...
On rebuttal, Assistant United States Attorney Strauss responded:
Ms. Strauss: ...
Mr. Anolik: Objection, your Honor.
The Court: I think she is entitled to say that. You may proceed.
Ms. Strauss: If his objection had been valid it would have been sustained, and Judge Carter would not have permitted me to make the argument. I was permitted to do so because it was a proper argument and something you should continue to think about. Harriet Gilmore was the one who wrote the Mexican pesos transactions in the customer ledger, but they didn't call her and ask her whether she altered the books and records. They have called someone else who didn't make the entry.