662 F.2d 834 (D.C. Cir. 1981), 80-1825, United States v. Gambler

Docket Nº:80-1825.
Citation:662 F.2d 834
Party Name:UNITED STATES of America v. Shelly Grant GAMBLER, aka Grant Gambler, Appellant.
Case Date:August 13, 1981
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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662 F.2d 834 (D.C. Cir. 1981)



Shelly Grant GAMBLER, aka Grant Gambler, Appellant.

No. 80-1825.

United States Court of Appeals, District of Columbia Circuit

August 13, 1981

Argued Jan. 13, 1981.

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Appeal from the United States District Court for the District of Columbia (D.C. Criminal Action No. 80-00144).

Melinda Gray Murray, Washington, D. C. (appointed by this court) for appellant.

Regina C. McGranery, Asst. U.S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U.S. Atty., John A. Terry, Michael W. Farrell and Eric B. Marcy, Asst. U.S. Attys., Washington, D. C., were on the brief, for appellee.

Before TAMM, WALD and MIKVA, Circuit Judges.

Opinion for the court filed by Circuit Judge TAMM.

Dissenting opinion filed by Circuit Judge MIKVA.

TAMM, Circuit Judge:

Shelly Grant Gambler was convicted of wire fraud, false pretenses, and larceny after trust. He urges reversal of these convictions on various grounds. Finding no prejudicial error committed by the trial court, however, we affirm these convictions.

Appellant managed an interior decorating business in which he recommended furniture and furnishings to clients and filled orders placed by them. Among Gambler's clients were J. Stanley Pottinger and Richard and Barbara Cohen. On October 2, November 17, and December 5, 1978, Pottinger and Gambler executed three contracts for appellant's services and for the purchase of furniture and curtains. Trial Transcript (Tr.) 6, 14, 18. The contracts required a fifty percent deposit to authorize the placement of orders for purchases, with the remaining fifty percent plus commission due within sixty days. Tr. 9. Pottinger made several payments and testified at trial that throughout that winter he received consistent assurances that everything was operating on schedule. Tr. 25-26. He testified specifically that prior to his payment on January 31, 1979, appellant had represented to him that his furniture had been ordered. Tr. 130-31. After much prevarication, however, Gambler informed Pottinger on May 11 that he had not placed any orders. Tr. 40-41.

Appellant had done a substantial amount of work for Richard and Barbara Cohen in the past. On February 1, 1979, Gambler recommended that the Cohens order certain living room furniture and pay him the full wholesale cost which, Barbara Cohen testified, appellant stated would ensure expedited delivery of the furniture. Tr. 147. Barbara Cohen gave Gambler a check for the full wholesale cost of the furniture on February 2. After several assurances that the furniture was in transit, Tr. 148, Gambler informed Richard Cohen in May that the furniture had not even been ordered. Tr. 167.

The grand jury returned a five-count indictment against appellant on March 26, 1980, charging him with wire fraud, false pretenses, and three counts of larceny after

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trust. 1 The counts of wire fraud and false pretenses related to Gambler's obtaining the January 31 check from Pottinger, while the larceny after trust counts concerned two payments made by Pottinger and one by Barbara Cohen.

At trial, Gambler testified that his business was an undercapitalized operation subject to wide swings in income. He maintained one business checking account in which all funds received, whether for services or furniture orders, were deposited and out of which all expenses were paid. Contradicting Pottinger's testimony, appellant stated that he had told Pottinger not to expect delivery until the late spring. Tr. 225-26. He explained that any references to the placement of orders prior to Pottinger's payment in January of 1979 referred to the placement of items "on reserve." Tr. 252. Gambler explicitly denied any intent to defraud either Pottinger or Barbara Cohen. Tr. 242. Furthermore, he cited several reasons for the delay in placing orders. He claimed that he did not become concerned about his ability to fill these clients' orders until late March or early April of 1979. Tr. 239.

The jury found Gambler guilty as charged after a three-day trial. United States District Judge Harold H. Greene imposed a sentence of three years imprisonment, but suspended that sentence and placed Gambler on probation for five years upon two conditions: 1) that he make full restitution to Pottinger and Cohen when allowed to do so by the Bankruptcy Court, and 2) that he accept suitable employment with the assistance of the probation department. (July 7) Tr. 5-6. Gambler filed a timely appeal.

Appellant makes three major arguments in this court. First, Gambler contends that he was improperly convicted of larceny after trust because he had no obligation to apply the specific money received from the complainants for their use and benefit. Appellant argues that, therefore, no trust relationship existed as a matter of law. Second, Gambler contends that he requires a new trial because the district court failed to instruct the jury on his "good faith" defense to the charges of wire fraud and false pretenses, crimes that require the proof of intent to defraud. Third, appellant submits that the district court committed reversible error by limiting cross-examination of a complaining witness. 2

Gambler's first contention need not detain us long. Under United States v.

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Orsinger, 428 F.2d 1105 (D.C.Cir.), cert. denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 61 (1970), it is clear that whether the requisite trust relationship, as opposed to a debtor-creditor relationship, existed between the defendant and his clients, "depends upon all of the facts and circumstances, including the intention of the parties." Id. at 1112. Our review of the record in this case leaves us convinced that the trial judge, although finding the legal sufficiency a close question, committed no error by submitting this question to the jury, Tr. 195, and that there was adequate evidence for the jury to find as it did. See, e. g., Tr. 16-17, 129-30, 159-60.

Appellant's second contention may also be readily dismissed. His challenge to the district court's refusal to deliver a requested instruction must be judged by viewing the instructions as a whole. United States v. Westbo, 576 F.2d 285, 289 (10th Cir. 1978); United States v. Martin, 475 F.2d 943, 947 (D.C.Cir.1973). A review of the instructions given by Judge Greene in this case reveals that the trial court took care to emphasize the Government's burden of proving the element of specific intent beyond a reasonable doubt. Tr. 332-33, 336-38. We believe that these instructions sufficiently covered the particular point raised by appellant's requested "good faith" instruction. Defendant's Requested Instruction No. 4; Supplemental Tr. S-13. See United States v. Westbo, 576 F.2d at 289; Cortez v. United States, 328 F.2d 51, 54 (5th Cir.), cert. denied, 379 U.S. 848, 85 S.Ct. 89, 13 L.Ed.2d 52 (1964).

Appellant's third contention cannot be so easily dismissed. He argues that he was inappropriately limited in his attempt to probe the accuracy and veracity of statements made by the Government's chief witness Pottinger. In particular, appellant objects to the district court's refusal to allow him to cross-examine Pottinger regarding two civil suits instituted by Pottinger against appellant. Appellant contends that, on the basis of the rationale articulated by this court in Villaroman v. United States, 184 F.2d 261 (D.C.Cir.1950), this refusal to allow cross-examination for bias constituted prejudicial error.

In Villaroman, this court reversed a conviction where the district court had refused to allow cross-examination of the complaining witness on the subject of that witness's pending civil suit against the defendant arising out of the same circumstances as the crime with which the defendant was charged. A general rule has evolved from this case and others to the effect that the trial court should allow cross-examination and the airing of evidence with respect to a witness's pending, or even contemplated, suit against the defendant. See 3 Weinstein & Berger, Weinstein's Evidence § 607(03) (1978) and 3A Wigmore, Evidence §§ 949-952 (Chadbourn rev. 1970), and cases collected therein. By allowing a probe into the circumstances of a pending or contemplated lawsuit, it is believed that a defendant may bring to light two factors reflecting the possible bias of the witness: his pecuniary interest in the outcome of the criminal trial and the existence and degree of animosity he may harbor against the defendant.

In this case, however, we are not presented with a situation in which defense counsel sought to probe the subject of pending or contemplated litigation by a witness against the defendant, but one in which counsel attempted to elicit information regarding past litigation. Counsel attempted to extract such information solely to suggest to the jury that Pottinger possessed "considerable hostility" against the defendant that could color his testimony. Brief for Appellant at 30. We cannot assume, as appellant apparently has, the automatic application of Villaroman to the case at hand. Here appellant has made no attempt to argue that Pottinger possessed, in this context, any pecuniary interest in the outcome of the trial, a substantial reason for the decision in Villaroman. Moreover, we have discovered very little authority discussing the discretion of trial courts to limit cross-examination in similar circumstances, wherein the defendant would have the jury infer hostility, and thereby a motive to falsify

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testimony, from attempts, now terminated, by a victim to recover compensation for harm perpetrated by the defendant. A state appellate court addressed an analogous situation in a fraud case in which a trial court had foreclosed an inquiry by the defense into the knowledge of the complaining witness before he filed a complaint that the defendant had instituted bankruptcy proceedings. The court affirmed...

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