Brilliant v. United States
| Decision Date | 22 January 1962 |
| Docket Number | No. 16806.,16806. |
| Parties | Sidney Norman BRILLIANT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Norman S. London, St. Louis, Mo., for appellant.
John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee, D. Jeff Lance, U. S. Atty., St. Louis, Mo., on the brief.
Before SANBORN and VAN OOSTERHOUT, Circuit Judges, and GRAVEN, Senior District Judge.
The appellant appeals from a judgment of conviction and sentence imposed upon him following a trial and verdict of guilty by a jury under an indictment in one count. The appellant was sentenced to fifteen months' imprisonment and to pay a fine of $500. On October 11, 1960, a Grand Jury for the Eastern District of Missouri returned the following indictment:
Section 1010, Title 18 United States Code, provides, in part, as follows:
"Whoever, for the purpose of obtaining any loan or advance of credit from any person, partnership, association, or corporation with the intent that such loan or advance of credit shall be offered to or accepted by the Federal Housing Administration for insurance * * * or for the purpose of influencing in any way the action of such Administration, makes, passes, utters, or publishes any statement, knowing the same to be false * * * shall be fined not more than $5,000 or imprisoned not more than two years, or both."
The appellant, hereafter referred to as the defendant, raises and argues three points in his appeal. His first point is that the trial court erred in refusing to furnish the defendant with a transcript of the grand jury testimony of Mrs. Bessie White, a government witness, and in refusing to examine that testimony in camera in order to determine whether such transcript should be furnished to the defense for use in cross-examination of Mrs. White. His second point is that the trial court erred in restricting defendant's cross-examination of Mrs. White as to her testimony before the grand jury. His third point is that the trial court erred in failing to sustain the defendant's motion for judgment of acquittal.
The defendant did not offer any testimony at the trial. From the testimony offered by the government, it appears that during the year of 1959 the J. & L. Construction Company was engaged in the making of home improvements in the City of St. Louis. During that year it employed three salesmen. It also made use of a number of canvassers. These canvassers would go from door to door trying to ascertain if home owners would be interested in making improvements. If a home owner manifested interest in making home improvements the canvasser would arrange for an appointment with a salesman for the J. & L. Construction Company. During the year of 1959 the defendant was in the employ of that company as a salesman and one Gary Dardick was a canvasser for that company. In 1959 Frank White and his wife, Bessie White, resided in St. Louis. Mrs. White had a seventh grade education. Frank White could sign his name but otherwise could not write. He could not read. In 1957 the Whites had purchased a home for the sum of $7,500 for which they were paying at the rate of $75 a month. Prior to July, 1959, they had purchased an automobile for which they were paying at the rate of $69.80 a month. Mr. White was employed by a plumbing company as a plumber-laborer. He was paid $3.05 an hour and worked a forty-hour week. He worked very little overtime.
In the latter part of July and the first part of August, 1959, the defendant called on the Whites three times at their home. The first two times he was alone. The third time he was accompanied by a man referred to by him as "Dad." The first time the defendant called on the Whites he informed them that he was selling aluminum siding. He discussed with them the matter of improvements to their home. He told them that he would put aluminum siding on their home and put in a picture window and door for a total of $1400. The Whites informed him that they were making payments of $75 a month on their home and $69.80 a month on their automobile and could not afford the proposed improvements. The Whites informed him that they owed $698 on the automobile loan. At this point, the defendant informed them that he could arrange it so that the unpaid balance on the automobile loan could be added to the amount of a loan for the home improvements and that the monthly payments on the combined amount would only be about a dollar a month more than their payments on their automobile loan. As a result of the defendant's efforts, the Whites signed several documents. They signed a contract with the J. & L. Construction Company dated August 6, 1959, under which the latter was to furnish all materials and labor necessary for the proposed improvements in return for the sum of $2,180 payable in 36 monthly payments of $70.08 each. They signed a credit application dated August 6, 1959, for a loan of $2,180. It appears that they also signed a promissory note for $2,180.
The automobile loan of the Whites was held by Mutual Bank and Trust Company of St. Louis. In connection with that loan the Whites were given a coupon book with a coupon for each payment. This was referred to as their car payment book. On the second visit of the defendant, the Whites produced their car payment book. The defendant took it stating that he would pay off the loan. On the third visit of the defendant he gave them the car payment book which bore a "paid" stamp on it. Mrs. White testified that they signed the credit application on the third visit. The other documents were signed by them on either the second or third visit. The Whites did not prepare any of the documents signed by them. They were presented to them for their signature by the defendant in prepared form. The credit application signed by the Whites was entitled, "Credit Application for Property Improvement Loan" followed by the statement, "This application is submitted to obtain credit under the terms of Title I of the National Housing Act." Below the latter appears the following: "To First Bancredit Corporation." The application gave the legal description of the residence property of the Whites and further stated: "Proceeds of This Loan Will be Used to Improve the Above Described Property as Follows:
In the credit application, the purchase price of the White residence was given as $8,500. The purchase price was $7,500 and the defendant had been so informed by the Whites.
Prior to the execution of the credit application, the Whites informed the defendant as to Mr. White's earnings. In the application it was stated that the Whites had a present salary or net income from business of $550 a month. In the application it was stated that they had other income of $175 a month and that the source of that income was the rent of a downstairs apartment. The Whites did not have any downstairs apartment. They did not state to the defendant that they had such other income. At the bottom of the application appears the following: Gary Dardick testified that the signature was not his signature and that he had not met the Whites. The papers signed by the Whites were delivered by them to the defendant and he left their home with them. The papers were received by the St. Louis branch of the First Bancredit Corporation sometime prior to August 20, 1959. On August 20, 1959, it issued its check to the J. & L. Construction Company in the amount of $2,180, which check was endorsed by that company and paid by the bank on which it was drawn.
Arthur Talarico, office manager and credit manager of the St. Louis branch of the First Bancredit Corporation, testified that during the year 1959 the J. & L. Construction Company was one of the dealers who handled home improvement financing through First Bancredit Corporation. He testified that in 1959 all of the home improvement loans financed by that lending agency for the J. & L. Construction Company were financed "only on F.H.A." He testified that when home improvement loan papers come in he examines them to see if they are acceptable for insurance under Federal Housing Administration regulations...
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