U.S. v. Gonzalez, 140

Decision Date01 November 1984
Docket NumberNo. 140,D,140
Parties16 Fed. R. Evid. Serv. 950 UNITED STATES of America, Appellee, v. Rufo GONZALEZ, Defendant-Appellant. ocket 84-1153.
CourtU.S. Court of Appeals — Second Circuit

Dominic F. Amorosa, New York City, (Cheryl L. Baratta, New York City of counsel), for defendant-appellant.

Michael S. Feldberg, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. of New York, Marc J. Gottridge, Asst. U.S. Atty., New York City, of counsel), for appellee.

Before LUMBARD, MANSFIELD, and KEARSE, Circuit Judges.

LUMBARD, Circuit Judge:

Rufo Gonzalez appeals from an April 24, 1984 judgment of the District Court for the Southern District, Charles S. Haight, Jr., Judge, convicting him, following a February 15, 1984 jury verdict, of thirteen counts of wire fraud in violation of 18 U.S.C. Sec. 1343 (1982) and one count of mail fraud in violation of 18 U.S.C. Sec. 1341 (1982). Gonzalez also appeals from Judge Haight's April 11, 1984 order denying his motion for a new trial pursuant to Fed.R.Crim.P. 33 because of newly discovered evidence. Judge Haight sentenced Gonzalez on April 24, 1984 to prison terms of three years on each of fourteen counts, the sentences to run concurrently. Gonzalez alleges: 1) that he should be granted a new trial because of newly discovered evidence; 2) that his convictions should be reversed because the trial court, in violation of Fed.R.Evid. 408, admitted statements Gonzalez made during negotiations to settle a potential civil claim and because the court erroneously admitted other evidence obtained in violation of French law; 3) that his conviction on Count Fourteen for mail fraud should be reversed because insufficient evidence supports it; and 4) that his conviction on Count One for wire fraud against Banco Hispano should be reversed because of a violation of the Speedy Trial Act, 18 U.S.C. Sec. 3161(b) (1982). Finding no merit in Gonzalez's first three claims, we affirm his convictions on Counts Two through Fourteen. Because his trial on Count One for wire fraud against Banco Hispano violated the Speedy Trial Act, we reverse that conviction.

Gonzalez was arrested June 17, 1983 on a complaint charging him with wire fraud in connection with his solicitation of a loan from the Madrid office of Banco Hispano Americano (Banco Hispano), a Spanish bank. On June 30 the government filed an indictment charging Gonzalez with two counts of wire fraud based on his solicitation of a $5 million loan from the Paris office of Banco Pinto & Sotto Mayor (Banco Pinto), a Portuguese bank. The indictment alleged that Gonzalez had devised "a scheme and artifice to defraud, and for obtaining money and property by means of false and fraudulent pretenses," but it did not mention Gonzalez's actions in allegedly defrauding Banco Hispano. On January 10, 1984, the government filed a superseding indictment charging Gonzalez with thirteen counts of wire fraud and one count of mail fraud in connection with Gonzalez's solicitation of loans from both Banco Hispano and Banco Pinto.

At trial, Angel Paez, former President of Corporacion Para el Desarrollo de la Pequena y Mediana Industria 1 (Corpoindustria), testified that in 1980 Corpoindustria hired Rufo Gonzalez and his companies, Venezuelan-American Company, Limited and its United States representative, Venamco Management Corp., to act as an international broker arranging, for Corpoindustria, $46.5 million in loans from eight banks. According to Paez, Gonzalez arranged these loans, and Corpoindustria, an entity owned by the Venezuelan government, repaid the borrowed funds at maturity in early 1981. According to other testimony, both Banco Pinto and Banco Hispano were asked to participate in that loan package.

Paez also testified that Corpoindustria did not renew its loan program in 1981 and did not reemploy Gonzalez. However, according to telexes introduced at trial, Gonzalez contacted Banco Pinto and Banco Hispano in March and April 1981 claiming that he was acting on behalf of Corpoindustria and seeking the banks' participation in another loan package. Both banks agreed to extend credit. In late March 1981, Banco Pinto transferred $4,288,863.50 into a bank account designated by Gonzalez and on November 23, 1981, Banco Hispano transferred $4,384,150.13 to a similar bank account. Both banks had made $5 million loans, but they deducted their interest charges from the amount advanced.

The government also produced at trial the promissory notes purporting to evidence Corpoindustria's obligation to repay the banks. The Banco Pinto note bore the purported signatures of the then president of Corpoindustria, Angel Paez, and another Corpoindustria official, Ricardo Bolivar. It also bore the stamp of Bank of America, New York, purportedly signed by the company's representative Felix Figueroa, verifying the Corpoindustria signatures. At trial, Paez and Bolivar denied that the signatures on the note were theirs. Figueroa testified that the stamp on the note differed from that used by Bank of America in 1981 and that he had not signed the note. The government presented samples of Figueroa's signature and the stamp actually used by Bank of America in 1981 for comparison with the signature and stamp that appeared on the note.

The Banco Hispano note bore the purported signatures of Paez, and Corpoindustria's Treasurer, Mery A. Lugo Pena, and also bore what appeared to be the company's stamp. The note also bore the stamp of Banco Industrial de Venezuela, New York Agency, purportedly signed by Jorge De La Campa, verifying the signature of an official of the Maracay Agency of Banco Industrial de Venezuela, who in turn verified the signatures of the Corpoindustria officials. Finally, it bore the stamp of BankAmerica International, signed by that company's representative, Josefina Arrazola, verifying the signatures of officials of Banco Industrial de Venezuela. At trial, however, Paez testified that the note was not valid, that he did not sign the note, that his name was misspelled on the note and that the Corpoindustria stamp on the note was not the stamp the company used in 1981. Lugo Pena also testified that she had not signed the note. De La Campa testified at trial that he did not believe that the signature which purported to be his was in fact his. The government also offered as evidence the stamp actually used by Corpoindustria in 1981 for comparison with the stamp on the note.

Officers of Corpoindustria, at trial, further claimed that they had no knowledge of the loans that Gonzalez allegedly arranged for the company, and Gonzalez conceded that Corpoindustria never received the proceeds of the loans. The Banco Hispano note has not been repaid. Gonzalez has repaid over $200,000 of the Banco Pinto note pursuant to an agreement between him and the bank.

In addition, David Frauman, a Banco Pinto attorney, testified that at a May 27, 1982 meeting involving Banco Pinto's claims against Gonzalez arising out of this transaction, Gonzalez admitted that the Banco Pinto note was a forgery, that he or someone in his control executed it, and that he placed the proceeds from the Banco Pinto loan in commodity accounts under his control. The government also offered a Confession of Judgment executed on June 16, 1982 by Gonzalez in favor of Banco Pinto in which Gonzalez made the following statement: "Due to certain irregularities in connection with the Note, Corpoindustria is not liable thereon. I am personally liable for the full amount of the debt owing to Banco Pinto evidenced by the Note."

In his defense, Gonzalez testified that Paez had orally authorized him in 1981 to seek loans and to invest the money. Gonzalez claimed that he did not know the promissory notes were forged and that he lost the money through commodity trading setbacks. Gonzalez also asserted that Corpoindustria officials, as well as De La Campa and Figueroa, had testified falsely. Gonzalez's former attorney, Leonard Isaacson, testified that he did not remember Gonzalez admitting to Banco Pinto lawyers that the Banco Pinto note was forged.

A. New Trial.

Gonzalez asks for a new trial under Fed.R.Crim.P. 33 because of newly discovered evidence that Jorge De La Campa once said, contrary to his testimony, that he thought his signature on the Banco Hispano note was genuine and that Josefina Arrazola, whom neither side called as a witness, once said that her signature on that note, verifying De La Campa's signature, was genuine. The government concedes that De La Campa and Arrazola once said their signatures appeared genuine, but claims that it was not aware of that fact until after trial. Judge Haight denied Gonzalez's motion for a new trial because he found it "most...

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