TORRUELLA, Circuit Judge.
On October 2, 1990, a 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 tecum; the sufficiency of the evidence and the district court's refusal to grant a continuance at sentencing so that appellants could make a proof of value of loss. We affirm.
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,
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.
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:
(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, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975); United States v. Porcaro, 648 F.2d 753, 755 (1st Cir.1981) (citing Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.1977), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977)). These 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 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 States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). In the present case, there was no objection by either defense counsel to informing the jury of the alleged prejudicial information. Defense counsel
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, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969):
Perrotta, 553 F.2d at 250, (quoting Margoles, 407 F.2d at 735). Of course the district court must first determine whether or not the information is actually prejudicial.
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.
If upon learning of potentially prejudicial information, the district court thinks that sequestration is warranted, the jury should be sequestered.
During the course of the trial, defendants were denied the opportunity to admit
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 States v. Tracey, 675 F.2d 433, 437 (1st Cir.1982) (quoting Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)). However, the 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.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 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.
Fifth Amendment Privilege
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-1
If a criminal defendant takes the stand and testifies in his own defense, "his
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 not the defendants bore the burden of proof. "The burden of proving that each defendant is guilty rests upon the Government. 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 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, 113 L.Ed.2d 474 (1990).
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:
(Tr. Vol. 7 p. 22). No objections to the judge's instruction were raised by defense counsel. To the contrary, Concemi'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.1989) (citing Quercia v. United States, 289 U.S. 466, 469-70, 53 S.Ct. 698, 698-99, 77 L.Ed. 1321 (1933); Doherty v. Doherty Insurance Agency, 878 F.2d 546, 553 (1st Cir.1989); Aggarwal
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.
The Subpoena Duces Tecum
On Thursday afternoon, December 14, 1990, Ribeck served a thirty-two paragraph subpoena duces tecum on ComFed requesting 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.
"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 1383, 1387 (9th Cir.), cert. denied, 479 U.S. 869, 107 S.Ct. 233, 93 L.Ed.2d 159 (1986) (citing United States v. Clegg, 740 F.2d 16, 18 (9th Cir.1984); United States v. Duncan, 693 F.2d 971, 979 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983)). Furthermore, "a ruling quashing a 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 Cir.1979), cert. denied, 444 U.S. 1019, 100 S.Ct. 673, 62 L.Ed.2d 649 (1980). "The moving party must show, among other things, that the material he seeks is evidentiary and relevant." Id. (citing United States v. Iozia, 13 F.R.D. 335, 338 (S.D.N.Y.1952), cited in United States v. Nixon, 418 U.S. 683, 702, 94 S.Ct. 3090, 3104, 41 L.Ed.2d 1039 (1974)).
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 breadth of some of the requests,
Sufficiency of the Evidence
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 trial. United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946, 460 U.S. 1069, 103 S.Ct. 1523, 75 L.Ed.2d 946 (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, 97 S.Ct. 1175, 51 L.Ed.2d 582 (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 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.
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, 103 S.Ct. 738, 74 L.Ed.2d 960 (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, 112 L.Ed.2d 106 (1991) (citations omitted).
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
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.
18 U.S.C. § 1344 states in pertinent part that:
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 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.
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. 279, 284, 102 S.Ct. 3088, 3091, 73 L.Ed.2d 767 (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 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.
Continuance at Sentencing
Finally, Concemi and Ribeck assert that the trial court erred in denying their
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 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.
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.
We review the trial court's decision for abuse of discretion. United States v. Gerante, 891 F.2d 364, 367 (1st 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 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
The decision of the district court is affirmed.