925 F.2d 541 (2nd Cir. 1991), 90-1234, United States v. Alkins

Docket Nº:and 90-1234.
Citation:925 F.2d 541
Party Name:UNITED STATES of America, Appellee, v. Barbara ALKINS, Carol Small, Linda Alkins, Roberta Meyers, Geraldine Watts, and Eloy Viejo, Appellants. Nos. 138, 142 and 395, Docket 90-1144 to 90-1147, 90-1221
Case Date:February 06, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 541

925 F.2d 541 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

Barbara ALKINS, Carol Small, Linda

Alkins, Roberta Meyers, Geraldine

Watts, and Eloy Viejo, Appellants.

Nos. 138, 142 and 395, Docket 90-1144 to 90-1147, 90-1221

and 90-1234.

United States Court of Appeals, Second Circuit

February 6, 1991

Argued Jan. 8, 1991.

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Bernard H. Udell, Brooklyn, N.Y., for appellant Barbara Alkins.

Alan G. Polak, New York City, for appellant Carol Small.

Paul Morgenstern, New York City, for appellant Linda Alkins.

Irving Anolik, New York City, for appellant Roberta Meyers.

David L. Lewis, New York City, for appellant Geraldine Watts.

Martin Geduldig, Hicksville, N.Y., for appellant Eloy Viejo.

Sean F. O'Shea, Asst. U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., E.D.N.Y., David C. James, Susan Corkery, Asst. U.S. Attys., E.D.N.Y., Brooklyn N.Y., on the brief), for appellee U.S.

Before FEINBERG, TIMBERS and NEWMAN, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants Barbara Alkins, Carol Small, Linda Alkins, Roberta Meyers, Geraldine Watts, and Eloy Viejo appeal from judgments entered February 2, 1990 and March 5, 1990, in the Eastern District of New York, Joseph M. McLaughlin, District Judge, convicting them of conspiring to conduct and conducting the affairs of the Queens District Office of the New York Department of Motor Vehicles (DMV) through a pattern of racketeering activity and of violating other federal statutes.

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On August 17, 1989, appellants were arraigned on a superseding fifty-five count indictment. The indictment was the culmination of a large scale investigation into corruption at the DMV. It charged a scheme whereby clerks at the DMV would process applications for driver's licenses, non-driver identification cards and registrations for vehicles--all absent the proper documentation and in return for cash payments. Many of the driver's licenses and identification cards were provided to illegal aliens or to persons who desired to conceal their true identities. Many of the vehicle registrations were provided for stolen cars. These transactions were often arranged by "runners" who served as intermediaries between the "customers" and the clerks at the DMV.

The indictment charged appellants with conducting the affairs of the DMV through a pattern of racketeering activity and of conspiring to do so. It set forth 31 acts of racketeering that appellants allegedly had committed in furtherance of their scheme. These acts included possession of stolen motor vehicles in violation of 18 U.S.C. Sec. 2313 (1988) (2 acts); mail fraud in violation of 18 U.S.C. Secs. 1341 and 1346 (1988) (27 acts); and soliciting and accepting bribes in violation of N.Y. Penal Law Secs. 200.10 and 20.00 (McKinney 1988)

(2 acts). Each of the racketeering acts, with the exception of the state law bribery acts, was charged as a substantive count in the indictment. In addition, the indictment included 10 counts charging possession of counterfeit securities of a state in violation of 18 U.S.C. Sec. 513 (1988).

On appeal, appellants contend that (1) certain of their mail fraud convictions violated the ex post facto clause of the Constitution; (2) the district court's instruction regarding the good faith defense to a mail fraud charge was inadequate; (3) the evidence did not establish that they engaged in a pattern of racketeering activity; (4) the district court improperly instructed the jury on a pattern of racketeering activity; (5) the district court erred in denying their request for a multiple conspiracies charge; and (6) the district court erred in limiting the cross-examination of a government witness. In addition, Linda Alkins contends that her conviction of possession of a stolen motor vehicle must be vacated since the government failed to prove that the motor vehicle in question crossed state boundaries. Meyers contends that her RICO convictions cannot stand since the evidence demonstrated only that she received gratuities and did not establish that she received bribes. Viejo contends that the evidence was insufficient to support his convictions on the RICO counts.

For the reasons that follow, we affirm the judgments of conviction of all appellants on all counts on which they were convicted.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

The DMV is a state agency that is responsible for issuing vehicle registrations, driver's licenses, learner's permits, and non-driver identification cards. Applications for these documents are processed by DMV clerks, who are expected to ensure that the applicant submits the necessary supporting documents, to verify the applicant's identity, and to collect any required fees. The DMV clerks process approximately 64 to 70 such transactions each day. When the clerk verifies that the application is complete, it is sent to Albany, where the registrations and licenses are printed and mailed to the applicants.

To register a vehicle, an applicant must complete an MV-82 form. That form requires the applicant to provide his name, address, date of birth, vehicle description, vehicle identification number, and signature. The applicant must also submit to the clerk proof of identity and proof of ownership. The clerk is expected to verify the applicant's signature and to record the type of documentation the applicant provided.

To obtain a driver's license, an applicant must fill out an MV-44 form. That form requires the applicant to provide his name,

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address, date of birth, motorist identification number, as well as personal information, and driving history. The applicant is required to sign the form. The applicant also must submit to the clerk proof of identity. The clerk is expected to verify the applicant's signature and to record the type of documentation the applicant provided.

Documents that can be used as proof of identity include a driver's license, a non-driver identification card, a birth certificate, a passport, or an alien registration card. Documents that can be used as proof of ownership of a vehicle include a certificate of title and a form issued by the state to used car dealers that transfers title from the dealer to a customer who has purchased the car. In New York, dealers use an MV-50 form to transfer title to a customer. The New Jersey reassignment form is an equivalent form. The clerks at the DMV are trained to recognize counterfeit documents.

Barbara Alkins, Small, Linda Alkins, Meyers, and Watts (collectively the clerks) were all employed by the DMV. Viejo owned car dealerships in New York (E V Auto Sales) and New Jersey (Eloy Auto Sales).

Several co-conspirators, who pleaded guilty to charges arising from the investigation, testified for the government. The government's witnesses included the "runners" who acted as intermediaries between the "customers" and the clerks at the DMV. The runners provided a service whereby they would shepherd applications, together with the supporting documentation, through the process at the DMV. These runners often were granted special access. For example, they were allowed to proceed directly to the clerks' windows and avoid the lines in which other applicants waited.

Andy Williams, one of the runners, testified for the government. He was involved in obtaining registrations for stolen cars. The cars were stolen by a ring of car thieves led by Anthony Santos and operated out of New York. Williams submitted counterfeit New Jersey certificates of title, which were filled out in fictitious names as proof of ownership in connection with these transactions. These documents should not have been accepted since they were photocopies and were not properly authenticated. In addition, Williams did not submit proof of the purported owner's identity since the cars were registered in phony names. Clerks at the DMV processed these applications in return for cash payments. The applications indicated that the clerks had received proof of identity. Williams testified that he paid Small approximately ten to fifteen times to register stolen vehicles. He paid Linda Alkins once or twice to do the same.

On one occasion, Williams met Small in the DMV parking lot to inform her that he would be registering a stolen Porsche the following day. Small told Williams that it would cost $300 since a Porsche is an expensive car. The next day Small processed the fraudulent application in exchange for $300.

Williams was associated with Woodrow Flemming, who also arranged to have stolen cars registered at the DMV. Flemming used counterfeit New Hampshire certificates of title. These were no longer in use in New Hampshire and therefore should not have been accepted by the clerks at the DMV. No proof of identity was submitted in connection with these car registrations, but the applications indicated that such proof had been submitted. These applications also were processed by clerks at the DMV in return for cash payments.

Williams also, on occasion, gave his business card to individuals who wished to obtain driver's licenses or non-driver identification cards without submitting proof of identity. These individuals were sent to Small who would process their applications for cash payments.

Yizhaq Dvash testified for the government. He was an illegal alien and had pled guilty to an unrelated charge of passing counterfeit money. Dvash procured licenses for individuals who did not have the proper identification to obtain them legally. Most of Dvash's clients were illegal aliens. Dvash testified that...

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