U.S. v. Scalzitti

• Citation: 578 F.2d 507
• Decision Date: 07 June 1978
• Docket Number: No. 77-1863,Nos. 77-1861,No. 77-1862,No. 77-1861,77-1861,77-1862,77-1863,s. 77-1861
• Parties: UNITED STATES of America v. John Edward SCALZITTI, Louis J. Maricondi, Thomas J. Fanell, William L. Berns, Robert H. Cameron. Appeal of John SCALZITTI inAppeal of Thomas FANELL inAppeal of Louis J. MARICONDI, into 77-1863.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 507

578 F.2d 507

UNITED STATES of America v. John Edward SCALZITTI, Louis J. Maricondi, Thomas J. Fanell, William L. Berns, Robert H. Cameron.

Appeal of John SCALZITTI in No. 77-1861.

Appeal of Thomas FANELL in No. 77-1862.

Appeal of Louis J. MARICONDI, in No. 77-1863.

Nos. 77-1861 to 77-1863.

United States Court of Appeals, Third Circuit.

Argued Jan. 4, 1978.

Decided June 7, 1978.

Blair A. Griffith, U. S. Atty., Edward J. Schwabenland, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Thomas A. Livingston, Dennis Clark, Livingston, Miller, O'Malley & Clark, Pittsburgh, Pa., for appellants in Nos. 77-1861 and 77-1862.

Irving M. Green, New Kensington, Pa., for appellant in No. 77-1863.

Before SEITZ, Chief Judge, and GIBBONS and GARTH, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

Defendants appeal the judgments of the district court entered after a jury found them guilty on several counts of making false statements in a loan application to a federally insured bank in violation of 18 U.S.C. § 1014 (1976), and of aiding and abetting the same in violation of 18 U.S.C. § 2 (1976).

I.

We first consider the contentions of one of the defendants, Fanell, that there was insufficient evidence to create a jury issue as to the charges that he violated 18 U.S.C. § 1014, or that he aided and abetted others in violating that statute. Section 1014 provides in pertinent part:

Whoever knowingly makes any false statement or report . . . for the purpose of influencing in any way the action of . . . any bank the deposits of which are insured by the Federal Deposit Insurance Corporation, . . . upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $5,000 or imprisoned not more than two years, or both.

18 U.S.C. § 1014 (1976).

Defendant Fanell was found guilty under two counts of the indictment, both of which alleged that he "knowingly did make, and cause to be made, materially false statements in an application for a loan submitted by the defendants . . . to the Mellon Bank . . . a bank the deposits of which are insured by the Federal Deposit Insurance Corporation, for the purpose of influencing the action of said bank to approve said loan."

Both sides agree that the Government had the burden of proving, inter alia, that Fanell knowingly aided and abetted the defendant Scalzitti in making a false statement to the Mellon Bank. They differ as to whether the Government made a sufficient showing on that point.

The evidence shows that Fanell was an experienced businessman and truck dealer who owned a firm known as National Fleet Recon Center, which repaired and reconditioned trucks. Fanell signed two forms granting powers of attorney to one William Berns. Those powers of attorney gave Berns authority to act for Fanell in "all transactions including financing agreements" in connection with the purchase and sale of motor vehicles. Berns managed the used-car operation at Jon's Oldsmobile-Cadillac, Inc. That car dealership was owned by defendant Scalzitti, who was a friend of Fanell.

The powers of attorney were dated on a Sunday, February 18, 1973, and they purported on their face to have been notarized that same Sunday by one Genevieve Cox, an employee of the car dealership. The dealership, however, was in fact closed on Sunday and Genevieve Cox was not at work on that date.

Five days after the date shown on the powers of attorney, Jon's Oldsmobile-Cadillac made a number of loan applications to the Mellon Bank. Two loans were granted by the Bank on the basis of representations that specific cars had been sold by Jon's Oldsmobile-Cadillac to National Fleet, which was owned by Fanell. The powers of attorney granted by Fanell to Berns were used to support those loan applications. The undisputed proof showed that it was falsely represented that these cars had been sold to Fanell's company.

Does the introduction of this evidence at trial permit a reasonable inference that Fanell knowingly aided and abetted the filing of a false loan application? The Government contends that the unusual relationships of the parties, and the proximity of the date of the execution of the powers of attorney to the date of the applications for the loans, warranted the jury in finding the requisite knowledge on Fanell's part. Fanell contends that no reasonable inference was permissible that he was aware that the powers of attorney would be used in making false statements to a bank.

The powers of attorney were executed under "unusual circumstances." Furthermore, the recipient of the powers managed the used-car division of a car dealership owned by a friend of Fanell. Fanell, on the other hand, operated only a truck dealership. The powers were used within five days after their date of execution as part of a fraudulent scheme to obtain money from a bank. Moreover, that fraudulent scheme was in connection with a "financing agreement" as specifically mentioned in the powers of attorney. Given these circumstances, we think it was permissible for a jury to infer that Fanell was aware when he delivered the powers of attorney that those powers were to be used for the illicit purpose which eventuated.

Fanell relies upon United States v. Cades, 495 F.2d 1166 (3d Cir. 1974). Cades, however, is distinguishable. In that case, there was no evidence of any connection between the defendant and the illegal acts of the person whom the defendant was accused of aiding and abetting. Here we find that there was sufficient evidence introduced at trial of a connection between Fanell and the illegal acts at issue to permit a reasonable inference that Fanell was aware that the powers of attorney were to be used for an illicit purpose.

We therefore conclude that defendant Fanell's motion for a judgment of acquittal was properly denied.

II.

All three defendant-appellants contend that the district court erred in allowing the jury to convict them upon the less-than-unanimous verdict of the jury.

A.

The court submitted the case to the jury on Friday, June 6, 1975. The jury sent several notes to the court during its deliberations on Friday, Saturday, and Monday, all saying that the jury was hopelessly deadlocked because of one "holdout" juror. That holdout juror communicated anonymously with the court, saying that he was unable to agree with the other jurors.

On Monday, June 9, 1975, after allowing the jury to go home for a rest on Sunday, the district judge held a conference in his chambers to discuss with counsel methods of resolving the deadlock. At that conference, one or more of the attorneys for the defendants said he believed that the defendants would be willing to accept a verdict based on the 11-1 deadlock in hopes of reaching some final decision. The Government, however, objected to the acceptance of anything less than the unanimous verdict of twelve.

While this conference in chambers was in progress, the jury sent out another note. This time the jury requested that the testimony of a certain witness be provided it to aid in the deliberations.

Because the court feared that the jury might rely too heavily on the requested testimony if it were provided them during the deliberations, and because the court was concerned over the delay that would be caused by the need to prepare the testimony, the court decided not to rule right away on the jury's request. Rather, the court called the jury into court and explained its reasons for hesitating to grant the request for testimony. The court then outlined the suggested alternative of returning a verdict based on the 11-1 split:

I suggest to you another alternative that has been advanced by the parties, and in this respect, I refer to previous, a previous (sic) communication to the effect that you stood approximately 11-1.

In this connection, I have agreed to grant a request that if you still remain 11-1; or in any event, if 11 of you are unanimous in the rendering of a verdict in this case, that the verdict of 11 will be accepted.

The district court then sent the jury out to consider, in light of the alternative resolution of the deadlock that the court had outlined, whether the requested testimony would be of "sufficient significance to (allow them to) arrive at a unanimous verdict of 12." In effect, then, the district court gave the jury the choice between returning an 11-1 verdict, or again requesting the testimony in the belief that such testimony was likely to lead to a unanimous verdict of 12. ¹

After the jury again retired, the court questioned each defendant on whether he waived what the district court termed his "constitutional right, to the unanimous verdict of 12 jurors." Each defendant, after consultation with counsel, in turn answered yes to the court's questioning.

The Government continued to object to the acceptance of anything other than a unanimous verdict of 12 jurors. Relying on Fed.R.Crim.P. 23(b) ² and 31(a) ³, the Government maintained there could be no valid waiver without consent of the Government.

The court overruled the Government's objection on the ground that the consent of the Government was not needed since the defendants were waiving personal constitutional rights.

Without having communicated further with the court, the jury returned its verdicts that same Monday evening. It convicted the three defendant-appellants by verdicts of 11-1 on the various counts in which each was charged. The jury acquitted two other defendants by unanimous verdicts of 12-0. All twelve jurors were polled, and all twelve agreed to the verdicts as announced.

In a post-verdict opinion, the district court granted the defendants a new trial on the ground that it was improper for the court to have accepted the 11-1 verdicts without the consent of the...