86 F.3d 277 (2nd Cir. 1996), 586, United States v. Dinome

Docket Nº:586, Docket 94-1476.
Citation:86 F.3d 277
Party Name:UNITED STATES of America, Appellee, v. Richard DINOME; Ronald Ustica; Paul Castellano; Anthony Gaggi; Joseph Testa; Patrick Testa; Henry Borelli; Peter La Froscia; Anthony Senter; Judith May Hellman; Sol Hellman; Paul Dodal; Richard Mastrangelo, also known as Richie; Ronald Turekian; Herman Weisberger; Edward Rendini; Joseph Guglielmo; Douglas Rega
Case Date:June 11, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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86 F.3d 277 (2nd Cir. 1996)

UNITED STATES of America, Appellee,


Richard DINOME; Ronald Ustica; Paul Castellano; Anthony

Gaggi; Joseph Testa; Patrick Testa; Henry Borelli; Peter

La Froscia; Anthony Senter; Judith May Hellman; Sol

Hellman; Paul Dodal; Richard Mastrangelo, also known as

Richie; Ronald Turekian; Herman Weisberger; Edward

Rendini; Joseph Guglielmo; Douglas Rega; Luis Pedro

Rodriguez; Gus Kalevas; Salvatore Mangialino; Carlo

Profeta, also known as Carlos, also known as Carmello;

Dennis Testa; Abdullah Mohammad Hussain, also known as The

Arab, Abdullah Mohammad Hassan Hussain, Defendants,

Wayne Hellman, Defendant-Appellant.

No. 586, Docket 94-1476.

United States Court of Appeals, Second Circuit

June 11, 1996

Argued Nov. 16, 1995.

Jeremy Gutman, New York City (Mark L. Freyberg, New York City, of counsel), for Defendant-Appellant.

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Patrick J. Smith, Assistant United States Attorney for the Southern District of New York, New York City (Mary Jo White, United States Attorney, Nancy J. Northup, Assistant United States Attorney, New York City, of counsel), for Appellee.

Before OAKES, MAHONEY, and WALKER, Circuit Judges.

MAHONEY, Circuit Judge:

Defendant-appellant Wayne Hellman appeals from an amended judgment entered August 22, 1994 in the United States District Court for the Southern District of New York, Miriam Goldman Cedarbaum, Judge, upon a jury verdict finding him guilty of one count of mail fraud in violation of 18 U.S.C. § 1341, 1 and one count of wire fraud in violation of 18 U.S.C. § 1343, 2 for making false statements in connection with an application for a residential mortgage.

On appeal, Hellman claims that the district court improperly instructed the jury that mail and wire fraud may be established by proof that a defendant defrauded another party of its right to control the use of its assets, and that there was insufficient evidence to support his convictions. We affirm the judgment of conviction.


Hellman was originally prosecuted pursuant to a seventy-eight count, twenty-four defendant indictment of an organized crime group known as the DeMeo crew of the Gambino organized crime family. This indictment charged the defendants with substantive and conspiracy violations of the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. § 1962(c) and (d), which violations included numerous predicate acts of mail and wire fraud. The defendants were also charged with myriad other violations of federal laws. Judge Kevin Thomas Duffy severed non-RICO counts involving auto theft and exportation, see United States v. DiNome, 954 F.2d 839, 842 (2d Cir.), cert. denied, 506 U.S. 830, 113 S.Ct. 94, 121 L.Ed.2d 56 (1992), none of which charged Hellman, to be tried first. The remaining charges were reassigned to Judge Vincent L. Broderick, and the trial of these charges commenced on February 22, 1988.

Ten defendants were tried for RICO offenses and the remaining substantive charges. Wayne Hellman and his wife, Judith Hellman, were charged with substantive and conspiracy RICO violations involving predicate acts of accepting bribes and mail and wire fraud, and separate charges of mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. Wayne Hellman was also charged with extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Near the close of the trial, the Hellmans moved pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal on the RICO charges, and for a mistrial on the remaining charges on the basis of spillover prejudice. DiNome, 954 F.2d at 844. Judge Broderick granted the Rule 29 motion, but denied the motion for a mistrial.

The jury found the Hellmans guilty of mail and wire fraud, and Wayne Hellman guilty of extortion. All codefendants were

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also found guilty on all charges. Judge Broderick thereafter acquitted Wayne Hellman on the extortion charge pursuant to Rule 29(c), and sentenced him to three years imprisonment, five years probation, and fines totalling $4,000. This Court then reversed the Hellmans' mail and wire fraud convictions because we concluded that they had been prejudiced by the introduction of evidence concerning the RICO charges against them and their codefendants before the RICO counts against them were dismissed. See DiNome, 954 F.2d at 844-45.

On remand, the case was reassigned to Judge Cedarbaum, and the Hellmans were each retried on one count of mail fraud and one count of wire fraud in connection with a scheme to defraud a savings and loan institution by making false statements on a residential loan application. The facts, as established at trial and viewed in the light most favorable to the government, see United States v. D'Amato, 39 F.3d 1249, 1256 (2d Cir.1994), are as follows.

In 1980, Wayne and Judith Hellman negotiated the purchase of a home in Marlboro Township, New Jersey, for $82,000. To finance this purchase, the Hellmans sought a mortgage from Freehold Savings & Loan Association ("Freehold Savings") in the amount of $50,000. Susan Tarnoff, their real estate broker, assisted the Hellmans in making out this loan application. Tarnoff told them that Freehold Savings required that monthly mortgage payments not exceed twenty-eight percent of an applicant's gross monthly income. It was also required that the applicant make a down payment in the amount of twenty percent of the purchase price. Wayne Hellman assured Tarnoff that he could verify any income that was needed to qualify for the loan. He indicated on the loan application that he received $3,683 per month from his employment at Jersey Seafood. However, the employment verification form received from Jersey Seafood indicated that Hellman earned only $300 per week. This amount failed to satisfy Freehold Savings' income requirement.

William Conklin, a loan officer at Freehold Savings, then instructed Tarnoff to contact Hellman to ascertain whether he had any additional income. Tarnoff called Hellman about the matter, and he reported that he did have additional income from his employment at Glenwood Flea Market ("Glenwood"), where he claimed to have been a manager for three years. After Tarnoff verified by telephone that Hellman worked at Glenwood, Freehold Savings received a letter from Glenwood which stated that Hellman was employed as a manager at Glenwood and that his yearly salary was $28,600. At trial, Hellman stipulated that this information was false; i.e., that he had never worked at Glenwood. However, Freehold Savings accepted the information without further inquiry and granted the mortgage loan, which closed on January 28, 1981.

At trial, Hellman sought to create a reasonable doubt as to whether he had intended to cause Freehold Savings any legally cognizable harm by misrepresenting his financial status. In this regard, Conklin acknowledged on cross-examination that the Hellmans' $32,000 downpayment constituted forty percent of the residence's purchase price, that the house was appraised at over $80,000, and that Freehold Savings' first lien on the property would protect it against any loss in the event of default.

Hellman also blamed Tarnoff for the submission of false information about his income. He testified, inter alia, that his wife was not present when he filled out the loan application with Tarnoff. He claimed that he had told Tarnoff that he earned $850 per week, but she had mistakenly recorded this amount as his monthly income. In addition, Hellman asserted that when his application was initially rejected, Tarnoff suggested to Hellman that his father, who owned Glenwood, "put him on the books" at Glenwood, and that she would verify his employment at Glenwood and inform Freehold Savings accordingly. These claims contradicted Tarnoff's trial testimony. On cross-examination, Hellman admitted that at the time he had applied for the loan he only expected to earn $15,000 per year, not $850 per week, which would have amounted to approximately $44,000 per year. He also conceded that he had listed Glenwood as an employer on an entirely separate credit application in 1981, thereby discrediting

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his claim that submitting false information about his purported employment at Glenwood to Freehold Savings was Tarnoff's idea.

The Hellmans submitted a joint request to charge the jury on the elements of mail and wire fraud in accordance with the instructions in 1A Leonard B. Sand et al., Modern Federal Jury Instructions, with several additions. First, the defendants requested the following instruction on the scheme to defraud element:

You must distinguish here between a scheme to defraud and a scheme to deceive. A scheme to...

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