822 F.2d 315 (2nd Cir. 1987), 1152, United States v. Worthington

Docket Nº:1152, Docket 87-1008.
Citation:822 F.2d 315
Party Name:UNITED STATES of America, Appellee, v. Robert WORTHINGTON, Defendant-Appellant.
Case Date:June 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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822 F.2d 315 (2nd Cir. 1987)

UNITED STATES of America, Appellee,

v.

Robert WORTHINGTON, Defendant-Appellant.

No. 1152, Docket 87-1008.

United States Court of Appeals, Second Circuit

June 30, 1987

Argued May 19, 1987.

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Kenneth Roth, Asst. U.S. Atty., S.D.N.Y. (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Helen Gredd, Asst. U.S. Atty., S.D.N.Y., of counsel), for appellee U.S.

Herbert M. Levy, New York City, for defendant-appellant Robert Worthington.

Before VANGRAAFEILAND, MESKILL, and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

Appellant was convicted upon a theory that naming a fictitious bank as drawee of a check constituted a "false statement". In common parlance a "bad check"--one drawn with insufficient funds in an account at the time--is not a "statement" subjecting the drawer to federal prosecution. The reason is that such a check may nonetheless be honored or may have been drawn negligently or even innocently. But the act of printing the name of a nonexistent drawee bank on a check fits squarely within the dictionary definition of "false statement". As such, it is not therefore similarly susceptible to an innocent explanation. Instead, like "Nye's sleeve stuffed full of aces", the act is done "with intent to deceive" and to euchre the victim out of his money. Bret Harte Plain Language from Truthful James, American Writers 232 (rev. ed. 1939).

Robert Worthington appeals from a conviction for making a false statement to a federal agency. The alleged "statement" was made on a check submitted to the Internal Revenue Service (IRS). The check was drawn on a nonexistent bank. The prosecution proceeded on the theory that designating a fictitious bank as the drawee of a check was a representation that the bank did in fact exist. On appeal from a judgment entered in the United States District Court for the Southern District of New York (Cannella, J.) on December 19, 1986, appellant challenges this theory, arguing that a check cannot assert or represent anything and, therefore, is not a statement. Because we think that the designation of a nonexistent bank as the drawee of a check constitutes a "statement", we affirm the judgment of conviction.

BACKGROUND

The subject check was submitted to the Internal Revenue Service under the following circumstances. In 1981 Technassociates, Inc., a Washington, D.C.-based data processing and management consulting firm, was managed by its two principals, Peter Ythier and Marvin Zentner. In June of that year the company was experiencing serious cash flow problems arising, in part, from $134,000 in taxes due and owing to the IRS. Ythier and Zentner contacted Worthington--the head of American Internax Planning--to discuss obtaining a line of credit. Zentner, Ythier, and Worthington arranged for Internax Planning to assist

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Technassociates in obtaining a line of credit as well as advancing $134,000 to meet the tax liability. Internax Planning's fee was to be $19,000.

As a step towards providing these services, on July 1 two associates of Internax Planning were dispatched from New York City to Washington carrying a letter of introduction signed by Worthington. After examining the financial records of Technassociates, they accepted a check for $2,200 as a down payment on the previously contracted for fee. In a telephone conference, Ythier and Worthington agreed to meet in New York on July 2. In the meanwhile--and also on July 1--an individual, who was not identified at appellant's trial, delivered over the counter in an IRS office in Manhattan a third party check in the amount of $134,000. The following day, July 2, Ythier and Worthington met in New York. Worthington gave Ythier an IRS counter receipt showing that a third party check had been presented to the IRS in satisfaction of Technassociates' tax bill. Ythier gave Worthington two checks totalling $16,800. Both men also signed a...

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