Rehearing and Rehearing En Banc Denied August 15, 1983.
PITTMAN, District Judge:
In this case the defendant appeals his conviction on one count for conspiracy and on eight substantive counts for possession of false and fraudulent documents in connection with the fraudulent obtaining and misapplication of the proceeds of a Small Business Administration (SBA) loan. The defendant raises numerous issues on appeal. We consider the defendant's points seriatim and affirm his conviction.
Appellant Harold Haimowitz, Irving R. Bowen, Jr., Frederick W. Bower, Frederick E. Bacon, Harold Bloom, and Sam L. Silberstein were indicted on January 23, 1980. It was an eighteen count indictment. Two of the defendants, Irving R. Bowen, Jr. and Frederick W. Bower, were subsequently severed; as a result of these severances, counts twelve and eighteen of the original indictment were severed. Of the remaining sixteen counts the appellant, Harold Haimowitz, was charged in nine counts either individually or with one of the defendants with criminal acts occurring from on or about October 1, 1979 through August 31, 1980.
In late September or early October, 1979, Peter Abbott contacted appellant Haimowitz,
Abbott and Haimowitz inspected Swain's and returned to Haimowitz's law office. Haimowitz told Abbott that he would take 10% ownership of the restaurant and that a loan could be obtained from the SBA for the purchase and renovation. Abbott then told Haimowitz that he could not apply for an SBA loan because he previously had gone into bankruptcy and was a convicted felon for vehicular homicide. While Abbott was a convicted felon, he had not been convicted of vehicular homicide. Abbott testified on cross-examination that he had been involved in numerous criminal acts involving other false and fraudulent SBA loans, acts of arson, and trafficking in narcotics. Nevertheless, Abbott agreed to have an SBA loan "package" prepared by Robert Flude of Atlanta while Haimowitz agreed to obtain an estimate from a contractor, to draft the purchase agreement, and to obtain an equipment appraisal and an insurance breakdown.
In November, 1979, Haimowitz and Abbott met with a representative of Swain's Charbroiled Steakhouse, at which time Haimowitz negotiated the selling price of the restaurant. Abbott then obtained a loan package from Flude, giving Flude false information about his background. In addition to the false information provided by Abbott, Haimowitz telephoned Flude and directed some changes in the information supplied by Abbott in order to make the SBA package more attractive. Abbott received the final SBA package from Flude and took it to Haimowitz's office, where Haimowitz provided the purchase agreement, appraisals of the land, building and equipment, an insurance breakdown, and an inflated estimate for the renovation work. Abbott and Haimowitz also prepared and included a fraudulent letter of recommendation and employment verification, which documents formed the basis for Counts Two and Three of the indictment against Haimowitz.
The loan proposal was submitted to several Jacksonville-area banks, including the American National Bank, where defendant Bacon was employed as a Vice-President. The American National Bank ultimately approved the loan, with Abbott as sole owner of the restaurant. Defendant Bacon had the application hand carried to the SBA office.
The SBA agreed to insure the loan if Abbott used $210,000 of his personal funds as capital injection, obtained insurance, provided a bondable contractor and architect, and had the liquor license transferred. Additionally, of the $450,000 the bank agreed to loan, $192,847 was earmarked to be spent on renovating and remodeling the restaurant. Construction funds were to be retained in escrow by the bank and money released through draws supplied by the contractor.
Various instruments prepared by Haimowitz and used to feign compliance with the loan terms formed the basis for various counts of the indictment against Haimowitz. These included (1) a forged receipt for $30,000 as down payment received for renovation
On January 4, 1980, the loan closing was held at the law offices of the attorney for American National Bank. Of the $450,000 loan, about $170,000 was disbursed to the sellers, about $75,000 was given to Abbott as working capital, and $192,847 was held by the bank in escrow for construction work.
When the original contractor could not provide the required performance bond, Haimowitz met with defendant Harold Bloom, president of Blosam Contractors, Inc., who agreed to sign a "stipulated sum" contract whereby the necessary construction work would be done for $192,847. It was agreed, however, that Blosam would do the work for $100,000, and the remainder would be kicked back to Abbott and Haimowitz. Three draws were made from the bank for the renovation work, for which Abbott would receive from the bank a check payable to Abbott and Blosam. Thereafter, Blosam paid a portion of each check to Abbott, who in turn paid a portion of the kickback to Haimowitz, to-wit: $20,000 to $25,000.
Although Haimowitz was not charged in the substantive counts based on this kickback scheme, this scheme, together with the acts involved in the scheme to obtain the SBA loan, formed the basis of the conspiracy count (Count One) against Haimowitz.
I. DENIAL OF MOTION TO SUPPRESS
Appellant contends that prejudicial error resulted from the district court's denial of appellant's motion to suppress evidence seized from his law office. As a result of the denial, the Government introduced as evidence Haimowitz's personal files of (1) Abbott's SBA loan application; (2) the incorporation of Abbott's Restaurant; (3) various suits by creditors against Abbott; (4) Haimowitz's personal notebooks of telephone messages; and (5) copies of letters to various persons. Appellant offers five reasons for which the search warrant should have been held improperly issued.
A. Staleness of Probable Cause
The Affidavit for Search Warrant avers that Peter Abbott stated that on or about July 22, 1980 he was in Haimowitz's office and observed a file containing many documents relating to the loan application in question herein. Judi Greenhut, a former secretary of appellant, also stated that as of June, 1980, there existed a file in Haimowitz's office containing the loan documents in question. The affidavit was signed August 21, 1980.
The appellant maintains that because there was a seven and one-half month time lapse between the loan closing on January 4, 1980 and the August 21, 1980 date of the affidavit, the information contained in the affidavit was stale.
In United States v. Weinrich, 586 F.2d 481 (5th Cir.1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979), the appellants, convicted on drug conspiracy charges, argued that information relied upon in a wiretap application was fatally stale. The first informant's tip was given on November 10, 1976, one hundred days prior to the application, and the second tip came on January 18, 1977, thirty days prior to the application.
In upholding the legality of the wiretap, the court noted:
Id. at 491 (quoting Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir.1973)). In the present case, information regarding the presence of fraudulent documents in Haimowitz's office was as recent as one month before the affidavit was signed. Further, the nature of the offense charged and the place searched compel the conclusion that the information in the affidavit was not stale. The documents in question reasonably could lead a person to conclude that they pertained to activities the records of which were likely to be maintained in the office. See list infra. This conclusion is further supported by the statement of Haimowitz's former secretary, Judi Greenhut, who averred that the practice of the office was to maintain documents indefinitely. It was not unreasonable for the issuing magistrate to conclude that the documents were present in Haimowitz's office as of the date of the application.
B. Aguilar/Spinelli Challenge
In order to withstand fourth amendment scrutiny, the affidavit must provide the magistrate with enough essential facts to enable him to exercise his independent judgment and perform his function as a detached and neutral magistrate. See Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
Aguilar devised a two-part test of the sufficiency of an affidavit based on hearsay information: first, the affidavit must provide information regarding the reliability of the information provided by the informant; second, the affidavit must provide information regarding the credibility of the informant. See United States v. Lefkowitz, 618 F.2d 1313, 1316 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980).
As in Lefkowitz, the affidavit in question indicates that Abbott personally observed the documents in question in Haimowitz's office. The affidavit further relates events at which Abbott was himself present. This satisfied the first Aguilar requirement.
The affidavit does not set forth the fact that Abbott himself had been convicted of felonies and engaged in numerous bad acts. Nevertheless, the affidavit here contains much data that point to Abbott's credibility. The affidavit contains detailed, firsthand information that is specific in its allegations, and is therefore "self-corroborating". Lefkowitz, 618 F.2d at 1316 (quoting United States v. Banks, 539 F.2d 14, 17 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976)). See also Spinelli, 393 U.S. at 417, 89 S.Ct. at 589. Some information supplied by Abbott, particularly with respect to the presence of fraudulent documents in Haimowitz's office, is corroborated in the affidavit by statements made by Judi Greenhut, Haimowitz's former secretary, whose credibility is unassailed.
We conclude that the affidavit is sufficient on its face to support the finding of probable cause made by the magistrate.
C. Franks v. Delaware Challenge
Haimowitz argues that the affidavit is insufficient because the omission of facts concerning Abbott's prior felony convictions and bad acts may have led the magistrate to a misconception of Abbott's credibility.
In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court
Id. at 171, 172, 98 S.Ct. at 2684 (footnote omitted).
At the outset, we note that Haimowitz's motion to suppress contains nothing more than conclusory allegations, unaccompanied by any offer of proof, that by his omission
Further, we conclude that even if the magistrate had known of Abbott's prior acts, the affidavit would still have supported a finding of probable cause for the reasons set forth supra, i.e., the firsthand character of Abbott's statements, coupled with Judi Greenhut's corroboration.
D. "Mere Evidence"
Appellant's fourth reason for asserting that the search warrant was illegal is that the papers were "mere evidence" of a crime, rather than instrumentalities of the crime, fruits, or contraband, and they could not be seized under Gouled v. United States, 255 U.S. 298, 310, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921). This distinction prohibiting seizure of items with only evidential value and allowing seizure of instrumentalities, fruits, or contraband was rejected by the Supreme Court in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18
The appellant also argues that the admission into evidence of his papers effectively compelled him to testify against himself in violation of the fifth amendment, citing Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and Gouled v. United States, 255 U.S. 298, 306, 41 S.Ct. 261, 264, 65 L.Ed. 647 (1921). The Supreme Court rejected this argument in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), holding that the search of an attorney's office for business records, their seizure, and subsequent introduction into evidence did not violate the fifth amendment. Although the records in Andresen contained incriminating statements the attorney had voluntarily committed to writing, he was never required to say or produce anything, and no compulsion to speak, other than the inherent psychological pressure to respond at trial to unfavorable evidence, was present.
E. General Search
The appellant's final argument is also meritless. Appellant avers that the search warrant constituted a "general search", see, e.g., Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), in that the documents listed in the affidavit were available either in the public records or in a collateral file maintained by the American National Bank, or the affidavit failed to show probable cause to believe that certain documents were actually in Haimowitz's office.
The warrant provided for the seizure of the following items from Haimowitz's office:
Description of Property to be seized:
Compare Andresen, supra, 427 U.S. at 480 n. 10, 96 S.Ct. at 2748 n. 10, wherein a similar list was held not to constitute a "general warrant". The observations of the Supreme Court in Andresen are particularly relevant in the case sub judice:
The warrant in question narrowed and identified the documents subject to seizure, thereby minimizing the danger of a random search. It also identified with adequate particularity the conspiracy under investigation. See United States v. Bithoney, 631 F.2d 1, 2 (1st Cir.1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 869, 66 L.Ed.2d 808 (1981).
The court finds no merit to appellant's argument that the fact that the documents sought were available from other sources renders the warrant an impermissible general search. General warrants, allowing "a general, exploratory rummaging in a person's belongings," are prohibited by the requirement of a "`particular description' of the things to be seized." Andresen, 427 U.S. at 480, 96 S.Ct. at 2748 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564 (1971)). This requirement was met in the present case. There is no allegation of general rummaging in Haimowitz's office outside the scope of the warrant's authorization. The specificity present in the description of property to be seized obviated the problem of a general search. See Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965) (The specificity requirement "`makes general searches ... impossible and prevents the seizure of one thing under a warrant describing another.... [N]othing is left to the discretion of the officer executing the warrant.'") (quoting Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927)), quoted in Andresen, 427 U.S. at 480, 96 S.Ct. at 2748.
II. RESTRICTION OF CROSS-EXAMINATION
Appellant next complains that his right to confrontation, U.S. Const. amend. VI, was violated when the district court limited his cross-examination of witness Abbott. In particular, appellant sought to impeach Abbott's credibility with respect to his testimony that Haimowitz had instigated many of the illegal acts, by demonstrating that Abbott had previously engaged in the execution of fraudulent documents in Huntsville, Alabama, involving a lawyer and his secretary. Appellant also complains that
Serious restrictions of a defendant's right to cross-examine a witness can eviscerate the defendant's sixth amendment right to confront adverse witnesses and compel the reversal of a conviction. United States v. Berkowitz, 662 F.2d 1127, 1138 (5th Cir.1981) (citing Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)). Although the extent of cross-examination on an appropriate subject is within the sound discretion of the trial court and will not be disturbed on review unless there is abuse of such discretion, there is "a sphere which a trial judge may not impinge, for the `discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment.'" United States v. Tolliver, 665 F.2d 1005, 1008 (11th Cir.) (quoting United States v. Elliott, 571 F.2d 880, 908 (5th Cir.), cert. denied sub nom. Hawkins v. United States, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978)), cert. denied, 456 U.S. 935, 102 S.Ct. 1991, 72 L.Ed.2d 455 (1982).
We have carefully examined the record and conclude that the district court gave the appellant ample opportunity to cross-examine Abbott and expose facts from which the jury could draw fair inferences regarding Abbott's credibility. The district court limited detailed excursions into collateral matters; this was a proper exercise of the district court's discretion and did not deprive the defendant of his rights to confrontation. See United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980). The appellant was able to achieve his desired purpose of impeaching Abbott's testimony despite specific restrictions placed on his cross-examination by the trial court.
III. DENIAL OF SURREBUTTAL
Appellant's third specification of error is that the district court committed prejudicial error in refusing to allow the defendant the opportunity to find and present good character witnesses in surrebuttal to counter the character testimony of two listed government witnesses presented in rebuttal.
Appellant had taken the witness stand to deny the allegations of his involvement in the loan scheme. The government called
After the government closed, there was a side bar conference regarding procedural matters unrelated to this appeal. The district judge then informed the jury that the presentation of testimony and evidence had concluded, and dismissed them until the next morning. The defendant's attorney then stated that he would like to have "some time to locate at the most two witnesses to testify" regarding the defendant's credibility. The district court agreed with the prosecution that surrebuttal was within the discretion of the court, and denied the request, further noting that "the Court having announced that the testimony and evidence had been concluded would perhaps attach undue significance to that presentation."
"Although a criminal defendant cannot be compelled to take the stand in his own defense, once he chooses to testify `he places his credibility in issue as does any other witness.'" United States v. Lollar, 606 F.2d 587, 588 (5th Cir.1979) (citations omitted). Thus, the district court correctly allowed the government to call witnesses to testify that the defendant's reputation for truth and veracity were bad and as to their own opinion regarding the defendant's credibility. Id. at 588, 589.
Whether or not to allow evidence in surrebuttal is a matter within the sound discretion of the district court; the district court's decision not to allow surrebuttal may not be disturbed unless such discretion was abused. See, e.g., United States v. Sadler, 488 F.2d 434, 435 (5th Cir.) (per curiam), cert. denied, 417 U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234 (1974). In the present case, the trial court properly limited the rebuttal witnesses' testimony to the defendant's reputation and the witnesses' opinions regarding his truth and veracity. This prevented the government from introducing new matters that may have prompted the need for surrebuttal on behalf of the defense. See id. Because the issue of the defendant's truthfulness was placed in issue upon his testimony, the government injected no new issue, and there was no abuse of the trial court's discretion to deny surrebuttal.
IV. SINGLE v. MULTIPLE CONSPIRACIES
Appellant's final contention is that the district court erred in failing to grant appellant's motion to dismiss Count One for duplicity. See generally Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Appellant specifically urges that the "first" conspiracy concerned the acts leading to the obtaining of the SBA loan, the "second" relating to the acts surrounding the subsequent use of the proceeds.
The Fifth Circuit has consistently held that a single conspiracy may exist "even though the agreement that constitutes it has several objectives and aims at the commission of several offenses." United States v. Rodriquez, 585 F.2d 1234, 1249 (5th Cir. 1978) (citing United States v. Elliott, 571 F.2d 880 (5th Cir.1978)), aff'd on rehearing, 612 F.2d 906 (5th Cir.) (en banc), cert. denied sub nom. Albernaz v. United States, 449 U.S. 835, 101 S.Ct. 108, 66 L.Ed.2d 41 (1980). An examination of the indictment reveals the true character of the conspiracy charged herein. The acts alleged leading up to the obtaining of the loan were the necessary precursors to the acts performed to reduce the loan monies to possession. The indictment charges only one overall conspiracy in which Haimowitz was involved at each stage.
With regard to prior offenses, the jury was informed that Abbott had eight criminal convictions in Boston, Massachusetts and one criminal conviction in Jacksonville, Florida. In addition to convictions, the jury knew that Abbott had been the middleman in a Boston cocaine transaction, had had an automobile burned in Boston, and had received other fraudulent bank loans, which were repaid out of insurance funds following fraudulent arson, in Boston.
The jury was also cognizant of the details of Abbott's involvement in governmental immunity programs. The jury knew that Abbott received immunity in Boston for all crimes he disclosed to authorities, that at the time of trial he was being paid $1,300 per month and had been paid $11,000 during the previous 10-11 months by the government, and that he had been relocated by the government under an assumed name. The jury was also aware that the government would attempt to place Abbott on the Witness Protection Program for his assistance in this case, wherein during a previous tenure Abbott had received $29,000 from the government.