U.S. v. Cravero, 74--3314

• Decision Date: 23 April 1976
• Docket Number: No. 74--3314,74--3314
• Citation: 530 F.2d 666
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard CRAVERO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 666

530 F.2d 666

UNITED STATES of America, Plaintiff-Appellant, v. Richard CRAVERO, Defendant-Appellee.

No. 74--3314.

United States Court of Appeals, Fifth Circuit.

April 23, 1976.

Gary L. Betz, U.S. Dept. of Justice, Miami, Fla., Frederick W. Read, III, Appellate Sec., Crim. Div., Robert Henry Plaxico, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellant.

James J. Hogan, Miami Beach, Fla., George D. Gold, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

In this case, the government appeals from the district court's granting of a motion for judgment of acquittal after the jury had returned a verdict of guilty. Defendant was tried before the United States District Court for the Southern District of Florida for one count each of a violation of 18 U.S.C. § 1622, ¹ subornation of perjury, 18 U.S.C. § 1503, ² obstruction of justice, and 18 U.S.C. § 371, ³ conspiracy. At the close of the government's case, defendant moved for judgment of acquittal pursuant to Rule 29, Fed.R.Crim.P. The district court reserved decision on the motion. After the jury returned a verdict of guilty on all three counts, the district court granted the defendant's motion. Arguing that the district court improperly ruled that there was insufficient evidence to sustain a conviction, the government appeals. We find that there was sufficient evidence to sustain a conviction, reverse the district court, and order the entry of judgment on the verdict.

This indictment grew out of an investigation in Miami, Florida, of the disposition of certain stolen securities. During that investigation, on May 7, 1970, Barry Glen Lipsky appeared and testified before a federal grand jury concerning the stolen securities. Lipsky had served as a stock broker at the Miami offices of the brokerage house of Weiss, Voisin, and Cannon. Before the grand jury, Lipsky testified under oath that an individual had entered his office and opened an account to engage in securities transactions. Later, that same individual had Lipsky sell 655 shares of American Express stock. The certificates representing this stock were later discovered to have been stolen. Lipsky was then asked specifically whether he knew Richard Cravero, the present defendant, as well as David Iacovetti, Robert Cardillo and Vincent Teresa. He denied knowing any of these persons. Sometime after his grand jury testimony, however, Lipsky told the United States Attorney's office that he had lied before the grand jury and implicated Cravero in a scheme to dispose of the securities. Armed with Lipsky's revelations, the government indicted Cravero.

At trial, Lipsky, the government's main witness, testified of his perjury before the grand jury and recounted, in detail, a version of the stolen securities transaction. According to Lipsky's testimony at trial, he was contacted by Cravero in February or March of 1969. At that time, Cravero told him that he knew of certain unnamed persons with stolen securities to sell. Cravero stated that the stock could not be traced and inquired as to whether Lipsky was interested in using his position to help dispose of securities. Lipsky then accompanied Cravero to a restaurant where they met Iacovetti. At the meeting of the three men, Iacovetti stated that if Lipsky could move the stock there would be a 'few thousand' for him and that if the stocks were traced Lipsky could deny any wrongdoing and would 'be in the clear.' At a meeting where Cravero was not present, Iacovetti introduced Lipsky to Teresa and Cardillo. Under the plan developed, Lipsky sold stolen stock through a bogus account and gave the proceeds to Teresa.

After Lipsky sold the American Express stock, Cravero contacted Lipsky and angrily told him that Teresa and Cardillo had failed to pay Cravero his share of the proceeds. Lipsky gave Cravero $500 from his share.

A few days later, Lipsky's superior at the brokerage firm informed him that the American Express stock had been stolen. In response, Lipsky painted the scenerio he later related to the grand jury of an individual coming to his office and opening an account upon which Lipsky sold the stock. After making this explanation to his employer, Lipsky telephoned Cravero and told him what had happened, and asked him, 'what am I supposed to do now?' Cravero stated, 'you just go along with the story as it was prior arranged: that you don't know anything; that a man just walked in off the street and identified himself properly and sold the stocks as a legitimate individual, as a regular citizen.' Lipsky was later interrogated by the FBI and again told the same story. When Lipsky related to Cravero what he had said to the FBI, Cravero replied that everything was fine.

Later, Lipsky was told by an unidentified person that Teresa had implicated him in a criminal matter. Lipsky related that information to Cravero who said that he would go to Iacovetti and find out what Lipsky should do. When Lipsky and Cravero met several hours later, Cravero told Lipsky that 'there is no problem,' that Lipsky should 'play a dead hand,' that Lipsky should 'continue with the story the same as he had been doing,' and that 'no matter what (Lipsky) didn't know anybody,' Finally, in April, 1970, after Lipsky was subpoenaed, he again contacted Cravero. Cravero instructed him:

You go in there and you play a dead hand. You don't know anybody; you don't know any of these people that were involved in this deal. You don't know me, you don't know anything wrong that happened. Nothing happened wrong. You didn't do anything out of the ordinary in the course of selling stocks for a customer. And if you do all this you'll be alright. Just play a dead hand, you'll be alright.

Subsequent to this conversation, Lipsky testified falsely before the grand jury.

On cross-examination, Cravero's counsel presented a withering attack on Lipsky's credibility. After pointing out Lipsky's perjury before the grand jury, Cravero's counsel led Lipsky through a discussion of his various crimes. Lipsky conceded that he had pleaded guilty to federal charges for his part in disposing of the stolen securities. Lipsky, furthermore, admitted that he had both used and been a dealer of large amounts of heroin and cocaine. Lipsky conceded that he had forged his mother's name to approximately $18,000 worth of checks. Finally, Lipsky acknowledged that he had pleaded guilty to manslaughter for his participation in a particularly brutal murder and incineration of a government witness in New York state. Also in his cross-examination, Lipsky admitted that he had lied before a federal district judge during his probation hearing on the stock charges and had twice lied in narcotics trials in federal district court in New York. He also indicated that he expected favorable treatment from the government for his cooperation in testifying in several government prosecutions. During the cross-examination, the defense, moreover, had Lipsky read a letter in which he had written that he was completely without emotional feelings. In the letter, Lipsky further stated that, 'I am a violent, vindictive, warped-minded cynic of a magnitude that you have absolutely no conception of.' He wrote, in addition, that he wished that he could be allowed to go near the 'nuts' or 'psychos' so that he could 'steam them up' and 'laugh at them.' Finally, the defense brought out other examples of deranged behavior on the part of the government's main witness. Lipsky had once thrown scales into the Biscayne Bay because they failed to reflect any weight loss, had once held a gun to his brother's head, and had shot his television set when there was a picture malfunction.

After the government rested, the defense called no witnesses. The jury returned a verdict of guilty on all three counts.

Defendant first argues that the district court's granting of a motion for judgment of acquittal is not appealable by the government. In United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court has recently delineated the limits of governmental appeals under 18 U.S.C. § 3731. First, the Court concluded that the new statute allows the government to appeal unless the appeal is barred by the double jeopardy clause of the Constitution. 420 U.S. at 339, 95 S.Ct. at 1020, 43 L.Ed.2d at 239. After demonstrating that the main concern of the double jeopardy clause was to prevent a defendant from twice facing a trier of fact, the Court stated,

We therefore conclude that when a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the government may appeal from the ruling without running afoul of the Double Jeopardy Clause. 420 U.S. at 352--53, 95 S.Ct. at 1026, 43 L.Ed.2d at 247.

We believe that this statement controls the present appeal. If this court reverses the district court's ruling on the motion for judgment of acquittal, the district court need only reinstate the guilty verdict of the trier of fact. There is no need for a separate trial. Under these circumstances, the government may appeal. ⁴ See also, United States v. Jenkins, 420 U.S. 358, 365, 95 S.Ct. 1006, 1011, 43 L.Ed.2d 250, 256 (1975); United States v. Burnette, 524 F.2d 29 (5th Cir. 1975).

Our decision that the government may properly appeal raises squarely the issue of whether there was sufficient evidence for the jury to sustain a conviction. We must view the evidence in a light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Burnette, supra; United States v. Weinstein, 452 F.2d 704 (2d Cir. 1971).

At trial, defendant argued that Lipsky was a totally unreliable witness and therefore the trial judge should rule that his testimony was not credible as a matter of law. The...