867 F.2d 937 (6th Cir. 1989), 87-3488, United States v. Overmyer

Docket Nº:87-3488.
Citation:867 F.2d 937
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Daniel H. OVERMYER, Defendant-Appellee.
Case Date:February 10, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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867 F.2d 937 (6th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellant,


Daniel H. OVERMYER, Defendant-Appellee.

No. 87-3488.

United States Court of Appeals, Sixth Circuit

February 10, 1989

Argued May 3, 1988.

Rehearing and Rehearing En Banc Denied March 24, 1989.

James C. Lynch (argued), Asst. U.S. Atty., Cleveland, Ohio, for plaintiff-appellant.

Stanley Arkin, Marc Bogatin (argued), Arkin & Arisohn, New York City, for defendant-appellee.

Before KRUPANSKY and NELSON, Circuit Judges, and HACKETT, District Judge. [*]

HACKETT, District Judge.

The United States appeals from the judgment of the United States District Court, Northern District of Ohio, granting defendant's motion for acquittal under F.R.Crim.P. 29(c). Appellant contends that when the evidence is viewed in the light most favorable to the government, a reasonable jury could have found defendant guilty beyond a reasonable doubt. After a thorough review of the voluminous record in this case, we find that the jury had sufficient evidence to sustain its verdict. We therefore reverse the judgment of the district court and reinstate the jury's verdict.


On January 28, 1986, a nine-count indictment was filed against Daniel H. Overmyer and Edmund M. Connery. Overmyer was charged with six counts of bankruptcy fraud, 18 U.S.C. Sec. 152, two counts of conspiracy to commit bankruptcy fraud, 18 U.S.C. Sec. 371, and one count of mail fraud, 18 U.S.C. Sec. 1341. Defendant Connery, charged in six counts of the indictment, was granted a severance.

Prior to submission of the Overmyer case to the jury, the district judge granted defendant Overmyer's motion to dismiss Counts Two, Six, Seven, Eight and Nine pursuant to F.R.Crim.P. 29. The jury returned a verdict of guilty on Count One, filing a false bankruptcy claim on behalf of Hadar International Leasing Co. (Hadar) in the bankruptcy of D.H. Overmyer Telecasting Co., Toledo television station WDHO-TV (Telecasting). The jury acquitted defendant Overmyer on Counts Three, Four and Five. Defendant Overmyer then moved for a judgment of acquittal on Count One pursuant to F.R.Crim.P. 29(c) which the district court granted.

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Daniel H. Overmyer opened his first warehouse in 1947, in Toledo, Ohio, and gradually expanded his operations. By 1973 he was operating public warehouses in 32 states.

In addition to his warehouse operations, Overmyer founded Telecasting in Toledo in 1966. In 1969, he obtained a six-million dollar loan from First National Bank of Boston BB pledging the stock of Telecasting as collateral.

In 1973, the Overmyer warehouse companies entered Chapter 11 in New York. In 1976, Telecasting filed a petition under Chapter 11 in New York. This proceeding was dismissed in 1980 and appealed by Overmyer. The appeal was denied and, on the same day, Telecasting refiled under Chapter 11 in Cleveland, Ohio. On March 28, 1981, the Cleveland bankruptcy court awarded control of Telecasting to FNBB.

On August 7, 1981, the Overmyer leasing company, operating as Hadar, which also was in Chapter 11, filed a proof of claim for $859,481.80 in the Telecasting bankruptcy proceedings. It is this proof of claim that resulted in Overmyer's indictment.

The proof of claim allegedly was based upon various television broadcast equipment leases between Hadar and Telecasting. A lease agreement for certain equipment was executed in January, 1981, although Overmyer contends that the price and other specific terms were not agreed upon until a later date. Pursuant to this lease agreement, monthly lease payments of $50,000 were not due until the leased equipment was installed. Telecasting was to cover installation costs. The proof of claim filed by Hadar on August 7, 1981, in the amount of $859,481.80 allegedly included lease payments, a $400,000 deposit and $249,116.18 installation costs of the leased equipment.

In its case-in-chief on Count One of the indictment, the government argued that the proof of claim filed by Hadar in the Telecasting bankruptcy was false in three respects and that Overmyer knew it was a false claim:

First, the sum contained a charge of $50,000 per month beginning in January, 1981, for lease payments on equipment not yet installed.

Two, the sum contained a charge in the amount of $249,116.18 for installation charges for new equipment not installed as of February 6th, 1981.

And third, as of February 6, 1981, Telecasting had overpaid Hadar for any leasing obligations it might have had.


It is well settled that the test to be applied by a trial court in determining a defendant's motion for acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure is taking the evidence and inferences most favorably to the government, if there is such evidence therefrom to conclude that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1940); York v. Tate, 858 F.2d 322 (6th Cir.1988); United States v. Conti, 339 F.2d 10 (6th Cir.1964). The Supreme Court has observed that the granting of a motion of acquittal, "... will be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). See, Blalack v. United States, 154 F.2d 591 (6th Cir.), cert. denied, 329 U.S. 738, 67 S.Ct. 67, 91 L.Ed. 637 (1946).

An appellate court, in reviewing a trial court's decision regarding a Rule 29 motion, applies the same principles to the record it has before it. United States v. Gibson, 675 F.2d 825 (6th Cir.1982). Other circuits have indicated the use of the same test following the trial court's reversal of a guilty verdict pursuant to Rule 29(c). United States v. Martinez, 763 F.2d 1297 (11th Cir.1985); United States v. Hazeem, 679 F.2d 770 (9th Cir.1982); United States v. Brandon, 633 F.2d 773 (9th Cir.1980); United States v. Beck, 615 F.2d 441 (7th

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Cir.1980); United States v. Varkonyi, 611 F.2d 84 (5th Cir.1980); United States v. Dreitzler, 577 F.2d 539 (9th Cir.1978).

The 11th Circuit in the Martinez case, supra, stated the test for review of a verdict overturned by a judgment of acquittal as follows:

On a motion for judgment of acquittal, the court must view the evidence in the light most favorable to the verdict and, under that light, determine whether the evidence is sufficient to support the verdict. Thus, on this motion, the court assumes the truth of the evidence offered by the prosecution. (Citation omitted).

United States v. Martinez, supra at 1312.

The filing of a false bankruptcy claim is prohibited by 18 U.S.C. Sec. 152 which provides, in pertinent part:

Whoever knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, personally, or by agent, proxy, or attorney, or as agent, proxy, or attorney, ... shall be fined not more than $5,000 or imprisoned not more than five years, or both.


The jury trial in this matter commenced on October 15, 1986, and continued through November 18, 1986. In support of its allegations, the government introduced the following evidence.

David Raible was associated with Overmyer from 1975 to at least 1983. At various times he also served in the following capacities: on the board and as an officer of Telecasting and an officer and executive vice-president of Hadar; president of Intermodal Systems Leasing, Inc. (ISLI); president of Jeebs Distribution Services (Jeebs) beginning in late 1975 or early 1976; president and an officer of National Distribution Services (NDS) beginning approximately October, 1977; an officer of Jeebs Marketing and Management beginning approximately October, 1977; director and secretary of the corporation of R.T. Systems, Inc. and two of its subsidiaries known as Freight Delivery Service of Florida and TOFC Terminals, Inc.; an officer of Omega Executive Services, Inc.; an officer of AGG Projects, Inc. (AGG); and, an officer of Morton Telecasting. The headquarters for most of these corporations was located at Three Park Avenue in New York. Raible was appointed to all of these positions by Overmyer and received daily supervision by Overmyer. Overmyer was his boss.

Raible testified that Overmyer appointed all of Hadar's officers and that even when Overmyer's son-in-law Stuart Strang, who had been employed pumping gas at a gas station prior to being appointed president of Hadar, was appointed president in 1978 or 1979, Raible continued to report to Overmyer and not to Strang. When asked if Overmyer had any position with Hadar, Raible responded "well not if you will read the corporate structure that was established," although some documents listed Overmyer as a consultant.

Raible testified that it was Overmyer who determined the $16,067.37 monthly figure on lease ML-2, Overmyer who instructed Raible which of Hadar's bills to pay, Overmyer who gave daily instructions regarding the disposition of Hadar's cash and Overmyer who gave instructions to all of the employees at Three Park Avenue. Further, it was Overmyer and not Raible who received the daily reports of Hadar's cash balances and bank accounts.

Regarding the lease of equipment between Telecasting and Hadar, Raible testified that the "Overmyer Formula" was established sometime in 1978, or possibly earlier. Raible stated that the formula developed over a period of time. At one time leases were prepared and later changed as a new formula developed. It was not until late 1977 or early 1978 that a pattern was firmly established and thereafter continued.

Raible assisted Overmyer in developing the formula. Overmyer would come to Raible and ask Raible to calculate figures based on...

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