United States v. Vitale, Docket No. 04-4703-cr.

• Decision Date: 01 August 2006
• Docket Number: Docket No. 04-4703-cr.
• Citation: 459 F.3d 190
• Parties: UNITED STATES of America, Appellee, v. Ralph F. VITALE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

Page 190

459 F.3d 190

UNITED STATES of America, Appellee, v. Ralph F. VITALE, Defendant-Appellant.

Docket No. 04-4703-cr.

United States Court of Appeals, Second Circuit.

Argued: September 14, 2005.

Decided: August 1, 2006.

Jon L. Schoenhorn (Jennifer Bourn, on the brief), Jon L. Schoenhorn & Associates, Hartford, CT, for Defendant-Appellant.

Calvin B. Kurimai, Assistant United States Attorney (Kevin J. O'Connor, United States Attorney for the District of Connecticut, and Lisa E. Perkins, Assistant United States Attorney, on the brief, William J. Nardini, Assistant United States Attorney, of counsel), New Haven, CT, for Appellee.

Before WINTER, MINER, and WESLEY, Circuit Judges.

WINTER, Circuit Judge.

Ralph F. Vitale appeals from his conviction and sentence entered after a jury found him guilty of bank fraud in violation of 18 U.S.C. §§ 1344(1) and (2). Vitale participated in a scheme with Charles Hoblin and Peter Trantino to submit fraudulent business loan applications to Fleet Bank. Vitale principally argues that: (i) the district court violated his Sixth Amendment right to confront and cross-examine a witness by denying him access to the witness' substance abuse treatment records; (ii) the district court erred in refusing to conduct a post-trial inquiry into juror bias after revelation of a professional relationship between the juror, the juror's husband, and the prosecutor's husband; and (iii) United States v. Fagans, 406 F.3d 138, 142 (2d Cir.2005), requires that the district court resentence him.

We conclude that the district court committed no Sixth Amendment violation by denying access to the government witness' substance abuse treatment records. However, we remand for a hearing on the issue of possible juror bias under the procedure set out in United States v. Jacobson, 15 F.3d 19 (2d Cir.1994). Finally, pursuant to Fagans, we vacate Vitale's sentence and instruct the district court to resentence him. Fagans, 406 F.3d at 142.

BACKGROUND

We view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

From about January 1996 to about March 1996, Vitale, Hoblin, and Trantino participated in a scheme to defraud Fleet Bank. They took advantage of Fleet Bank's Easy Business Banking Loans — which provided to small businesses loans of up to $100,000 through an expedited process with limited documentary requirements — by submitting fraudulent loan applications. Hoblin was a self-employed accountant who prepared individual income tax returns for his clients. He and Vitale concocted the fraudulent loan documents by creating phony corporations with fictitious financial information¹ and using names, addresses, tax identification numbers, and income tax returns of Hoblin's unknowing clients to fill in the gaps. Trantino, who was a business development/loan officer at Fleet Bank, would sign each application as a witness and forward the application to the underwriting unit, knowing that the information being submitted was false and/or obtained without Hoblin's clients' permission. Working together, Vitale, Hoblin, and Trantino secured five Easy Business Banking Loans, each for the maximum $100,000.

As each loan was nearing approval, a bank account was opened for each entity. Two persons were designated to issue checks on each account: on four of the accounts Vitale (or a relative of Vitale's) and the person in whose name the loan application had been submitted were authorized to draw on the funds; on the fifth account, a relative of Hoblin's was named along with the unwitting "applicant." Once the monies were deposited in the accounts, Vitale, Hoblin, and Trantino made withdrawals totaling $403,000.

On May 11, 2004, a jury found Vitale guilty of all five counts of bank fraud, and on August 16, 2004, Vitale was sentenced by the district court.

a) Trantino's Substance Abuse Treatment Records

Trantino, who pled guilty to charges of bank fraud was a government witness. Prior to trial, the government informed defense counsel that Trantino had abused narcotic pain killers during the relevant period of time and that he currently was enrolled in a drug abuse treatment program.

Defense counsel subpoenaed Trantino's records from the Orchard Drug Rehabilitation Clinic. The APT Foundation, which owned and operated the Orchard Drug Rehabilitation Clinic, moved to quash the subpoena, arguing that the information was protected from disclosure.

Vitale argued that because Trantino had admitted to the heavy use of painkillers during the bank fraud scheme and drug addiction when he was discussing the case with the FBI, the substance abuse treatment records were relevant to Trantino's ability to recall and relate pertinent events as well as to his general credibility. He argued that access to the records was necessary to cross-examine Trantino. Vitale's counsel also speculated that Trantino's referral to a substance abuse treatment program after his then-recent drug-related arrest was facilitated by the government, raising a concern of possible bias. The government assured the court that it had not intervened in Trantino's state drug charges. The district court then conducted an in camera review of the records and reserved its rulings.

During his direct examination, Trantino testified that he had sustained a neck injury in mid-summer 1995. He was prescribed and took vicodin for this injury until early 1996, when he had surgery to repair his neck. After the surgery, Trantino was prescribed another narcotic painkiller Tylox, which he used for another six-to-eight weeks. Trantino claimed that neither painkiller affected his performance at the bank.

After this portion of the direct examination, the district court, over the objection of Trantino's counsel and after its own in camera review, summarized for the parties the information contained in Trantino's substance abuse treatment records. The court stated that it wanted Vitale's counsel to have all "arguably germane" information in order for the defense to "fully and thoroughly cross-examine [Trantino] consistent with the right to confrontation."

Outside the presence of the jury, the district court related that "starting at age 40 at some point in 1998, long after the transactions at issue here, Mr. Trantino began to use heroin." The court then summarized Trantino's lengthy substance abuse treatment: (i) in mid- to late-1998, outpatient detoxification treatment for four days, which occurred around the time of his initial contact with the FBI; (ii) inpatient treatment for three days in early 2000; and (iii) further inpatient treatment in mid-2001. The records indicated that Trantino last used heroin in March of 2002. Since that time, Trantino had received methadone treatments, although it was unclear whether those continued at the time of trial. The district court further revealed that Trantino had abused cocaine occasionally from the time he was twenty-five years old until his 2001 treatment for heroin but that the records were not clear as to the quantity or frequency of cocaine usage. Summing up, the district court stated:

I think that's a reasonably accurate summary of a rather voluminous record. And I will leave it to you to proceed from there.

If Mr. Trantino testifies consistently with that information, then I would see no reason why I should order that the documents be disclosed to you. If that doesn't happen, then maybe there would be good cause or adequate cause for some further disclosure.

Defense counsel then moved that the physical records be disclosed pursuant to Vitale's rights under the confrontation clause and that the records be sealed and marked for appellate review. The district court did not issue a final ruling on the matter, preferring to "see how it unfolds."

Trantino admitted to the information summarized by the judge, and the district court made no additional disclosures. During cross-examination, defense counsel again questioned Trantino about his drug use and rehabilitation.

b) Post-Trial Juror Contact

On April 13, 2004, jury selection for another, unrelated case was being conducted while the pool of jurors for Vitale's case, including juror Barbara Setlow, was probably present in the courtroom. During voir dire for the first case a potential juror remarked that she thought Assistant United States Attorney Lisa Perkins was related to someone she knew who had a different last name. Perkins stated that her husband's name was Sparkowski. The juror indicated that she knew Perkins' in-laws. Another potential juror raised his hand and asked Perkins if her husband's name was Jason Sparkowski, indicating that he had attended high school with a Jason Sparkowski. Perkins revealed that her husband was indeed Jason Sparkowski. Jason Sparkowski was not discussed at any other time during voir dire for the first case.

During the voir dire in Vitale's case, Jason Sparkowski's name was never mentioned. When Setlow introduced herself to the court, she stated that she was "a biochemist with the UConn Health Center" and that her "husband works at the same place and does the same thing." Later events, described below, revealed that Jason Sparkowski, Perkins' husband, was also a biologist at the University of Connecticut Health Center ("UCHC"). Nevertheless, Perkins remained silent as Setlow was selected as a juror.

On May 17, 2004, following the jury verdict, Perkins sent a letter to Judge Chatigny disclosing the following. Jason Sparkowski had been a student in the biochemistry graduate program at UCHC from 1984-1990. During this time, Dr. Peter Setlow, the juror's husband, was a professor in the biochemistry department. While Sparkowski was a student at UCHC, he had frequent contact with Dr. Setlow but never socialized with him. He did, however, know Barbara Setlow to be the spouse of Dr. Setlow.

According to the letter, Sparkowski left Connecticut in 1990 and lived...