4 F.3d 100 (2nd Cir. 1993), 1358, United States v. Coyne
|Docket Nº:||1358, Docket 92-1688.|
|Citation:||4 F.3d 100|
|Party Name:||UNITED STATES of America, Appellee, v. James J. COYNE, Jr., Defendant-Appellant.|
|Case Date:||July 30, 1993|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued April 14, 1993.
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James A. Resila, Albany, NY (Carter, Conboy, Bardwell, Case, Blackmore & Napierski, of counsel), for defendant-appellant.
Thomas Spina, Jr., Asst. U.S. Atty., Albany, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., George A. Yanthis, Asst. U.S. Atty., of counsel), for appellee.
Before: VAN GRAAFEILAND and WINTER, Circuit Judges, and POLLACK, District Judge. [*]
WINTER, Circuit Judge:
James J. Coyne, Jr. appeals from his conviction and sentence after a jury trial before Judge Gagliardi. He was convicted of conspiracy to violate the federal bribery statute, 18 U.S.C. former Sec. 666(b) & (c) (Supp.1984), in violation of 18 U.S.C. Sec. 371 (1988) (Count I), corruptly accepting a thing of value concerning his conduct as Albany County Executive in violation of the federal bribery statute, 18 U.S.C. former Sec. 666(b) (Count II), extortion under color of official right (Hobbs Act) in violation of 18 U.S.C. Sec. 1951 (1988) (Count III), conspiracy to commit mail fraud and violate 18 U.S.C. Sec. 666(a)(1)(B) and (a)(2) (1988), in violation of 18 U.S.C. Sec. 371 (1988)
(Count V), mail fraud, in violation of 18 U.S.C. Sec. 1341 (1988) (Count VI), and corruptly accepting a thing of value concerning a program receiving federal funds in violation of 18 U.S.C. Sec. 666(a)(1)(B) (1988) (Count VII). He was acquitted on Count IV, which charged him with violating 26 U.S.C. Sec. 7206(1) (1988) by knowingly failing to report taxable income. He was also convicted of other offenses that we need not address for purposes of this appeal.
Coyne argues that there was: (1) a failure to prove conduct prohibited by the federal bribery statute because the project related to the bribes was not directly aided by federal funds; (2) insufficient evidence as to a deprivation of money or property for the mail fraud conviction; (3) no effect on interstate commerce under the Hobbs Act; (4) insufficient evidence on all counts; (5) a constructive amendment of the indictment; (6) error in the jury charge; (7) evidentiary errors; and (8) an erroneous two point enhancement for obstruction of justice. We affirm.
The criminal charges against Coyne arose from his relationship with two firms during his tenure as the elected Albany County Executive. Counts I-III involved payments received from an architectural firm, Crozier Associates, P.C. Counts V-VII involved dealings with an automobile dealership, Bud Kearney, Inc., and with a co-owner of the dealership.
Counts I-III--Crozier Associates
Coyne, in addition to being County Executive, also served as one of the three appointed members of the Albany County Industrial Developmental Agency ("IDA"). The IDA oversaw the development of a multi-purpose civic center, now known as the Knickerbocker Arena, until the summer of 1985. Joseph V. Zumbo, an Albany attorney who described himself as Coyne's best friend, was counsel to the IDA. During this period, when Coyne played a leadership role on the IDA, it retained an architectural firm, Crozier-Phillippi Associates, P.C., a predecessor of Crozier Associates, P.C., to perform certain preliminary studies for the construction of a civic center. John G. Crozier, an owner of Crozier-Phillippi, was the president of Crozier Associates and a long-time friend of Coyne. Crozier-Phillippi Associates received approximately $218,000 for this work.
In the summer of 1985, the Albany County Legislature took control of the civic center project due to limitations on the funding of such projects through IDAs. The Legislature established a nine-member Special Civic Center Committee ("Special Committee") to oversee the project and to make recommendations to the Legislature. Coyne was not a member of the Special Committee.
However, Coyne remained actively involved in the civic center project after the Legislature assumed oversight. He was described by Michael Polovina, the county project manager for construction of the civic center, as "spearheading" the project. Coyne was thus a member of the Civic Center Steering Committee formed in the spring of 1986. The Steering Committee was not an official body, but, according to Polovina, "was a group comprised of the key decision makers and people involved with the project." The Steering Committee included Harold Joyce, then majority leader of the Legislature and chair of the Special Committee. Joyce testified that he would not have supported the civic center project without Coyne's approval.
Coyne arranged a meeting at which he and Crozier presented a model of the proposed civic center to Special Committee members and other members of the community. This meeting took place prior to the Special Committee's interview of Crozier for the architect position. In 1986, the Special Committee recommended to the Legislature that Crozier Associates be selected as the architect for the civic center project. The Special Committee interviewed no other architects. The legislature agreed, and, on April 18, 1986, Crozier signed a contract with the County to provide the designated architectural services. Coyne executed the contract on behalf of the County. Initially, Crozier was to receive a maximum fee of $2,275,000, approximately seven percent of the construction costs.
In June or July 1986, Coyne informed Crozier that he had "serious financial problems." Crozier approached Zumbo for assistance in helping Coyne, explaining that Coyne had asked for $30,000. Although Zumbo initially testified that Crozier wanted his help in loaning Coyne money, Zumbo subsequently admitted that he could not recall whether Crozier actually used the word "loan." Zumbo also testified that he "suggested setting it up as a loan from Mr. Crozier to myself and from myself to Mr. Coyne" in order to "legitimize" it. Coyne testified that he asked Zumbo to meet with Crozier regarding the transaction and that he had a conversation with Crozier and Zumbo regarding whether Crozier could legally loan him the money.
In early July 1986, Crozier gave Zumbo a personal check for $30,000. The check was payable to Joseph V. Zumbo, Esq., and had the notation "real estate dev." on it. However, Zumbo had never done any real estate development work for Crozier. The Crozier Associates books initially listed the $30,000 as a loan to officer but later reclassified it as a salary expense for compensation to Crozier.
Zumbo deposited the check into his law office's general operating account. On July 9, 1986, Zumbo gave Coyne a $30,000 check written on the general operating account. On or about July 9, Coyne deposited $30,000 into his personal bank account. The checks, the records of Crozier Associates, and Coyne's deposit in his checking account were the sole contemporaneous documents evidencing the transaction. Neither Crozier nor Coyne listed the $30,000 as an asset or liability on any financial statements. Zumbo's trial testimony that the transaction was a loan was contradicted by his earlier grand jury testimony that Crozier "wasn't sure whether he was ever going to get paid back and it didn't really matter [to him]."
In February 1988, Coyne lobbied members of the Legislature for an enclosed front entrance to the civic center. In addition, he appeared before the Special Committee to recommend additional corporate suites and commercial spaces. The Legislature approved these alterations, which substantially increased the construction costs of the civic center. Because Crozier's fees were seven percent of construction costs, including major alterations, the Legislature's acts increased his fees also, to $3,700,000. As County Executive, Coyne signed each of the county claim forms submitted by Crozier Associates, certifying that the services were provided. He also assisted Crozier at various times in obtaining expedited payments under the contract.
In 1985, Albany County received federal financial assistance of $43,493,481 and $40,112,952 in 1985 and 1986 respectively. None of this assistance was earmarked for the civic center project.
In January 1989, Coyne was informed by the Internal Revenue Service that he was under criminal investigation for the tax years 1984-1987. Coyne then asked Zumbo to prepare documents concerning the $30,000 he received in 1986. Coyne told Zumbo that it was in everybody's best interest to prepare the documents. Between February and April of 1989, Zumbo prepared a promissory note for $30,000 from Coyne to him. The note was backdated to July 7, 1986. Coyne signed the backdated promissory note. In January 1991, Zumbo prepared a promissory note from himself to Crozier. He also backdated this promissory note to July 7, 1986. Zumbo mailed the promissory note to Crozier.
Also between February and April of 1989, Zumbo prepared a stock sale agreement between Coyne and himself for the sale of all of Coyne's shares in Eastco, a title insurance agency Zumbo and Coyne "had together." Zumbo backdated the stock sale agreement to July 7, 1986. Zumbo purchased twenty-nine shares of Eastco stock from Coyne for $1500 per share. The sale agreement purported to give an additional twenty shares to Zumbo as repayment of the $30,000 "loan." Zumbo testified that twenty of those forty-nine shares were intended to pay off the $30,000 "loan." Zumbo further testified that the "officers of the corporation...., basically, Mr. Coyne, [Zumbo] and Mr. Richey, who was the chairman of the board, and Mr. O'Connor, all agreed that...
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