Ingber v. Enzor, s. 423
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | MINER |
| Citation | 841 F.2d 450 |
| Parties | , 56 USLW 2539 Brian INGBER, Plaintiff-Appellant, Cross-Appellee, v. Lee ENZOR, Superintendent, FCI Danbury, Defendant-Appellee, Cross-Appellant. ocket 87-2312, 87-2372. |
| Docket Number | 670,D,Nos. 423,s. 423 |
| Decision Date | 01 March 1988 |
Page 450
v.
Lee ENZOR, Superintendent, FCI Danbury, Defendant-Appellee,
Cross-Appellant.
Second Circuit.
Decided March 1, 1988.
Page 451
Elkan Abramowitz, New York City (Todd J. Krouner, Obermaier, Morvillo, Abramowitz & Iason, P.C., New York City, of counsel), for plaintiff-appellant, cross-appellee.
Michael Chertoff, Sp. Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Aaron R. Marcu, Asst. U.S. Atty., New York City, of counsel), for defendant-appellee, cross-appellant.
Before PIERCE, MINER and DAVIS, * Circuit Judges.
MINER, Circuit Judge:
The United States District Court for the Southern District of New York (Brieant, Ch.J.) granted in part and denied in part Brian Ingber's motion for relief pursuant to 28 U.S.C. Sec. 2255 and vacated one of his convictions for mail fraud in light of the Supreme Court's decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). Ingber appeals from so much of the judgment as denied his request for relief, and the government cross-appeals from the district court's decision to vacate one of Ingber's convictions. We conclude that McNally applies retroactively to Ingber's convictions under 18 U.S.C. Sec. 1341 and affirm the judgment of the district court.
Ingber was convicted for mail fraud in connection with his election and tenure as Supervisor for the Town of Fallsburg, New York. The indictment charged that Ingber, by falsifying voting documents including absentee ballots cast in the election, had defrauded the citizens of Fallsburg "of their ballots and their right to a fair and impartial electoral process," and that he had obtained through fraud "the salary, powers and privileges of the Office of Supervisor" ("count nine" or the "election fraud scheme"). In addition, Ingber was charged, inter alia, with using the mails as part of a scheme to conceal his interest in co-defendant Service Scaffold, Inc. ("Scaffold") in order to steer a $540,000 town sewer project to Scaffold, thereby depriving Fallsburg of his honest services while reaping a pecuniary benefit for Scaffold ("count five" or the "sewer fraud scheme").
Count nine was severed by Chief Judge Brieant from the other charges and tried separately before a jury in the Southern District of New York. At the close of evidence, the court instructed the jury that they could find the defendant guilty of mail fraud if they determined that Ingber
devised a scheme or artifice for the purpose of defrauding the citizens of the Town of Fallsburg of an intangible right, namely, the right to a fair and impartial electoral process, free from the casting of false, forged or fraudulent ballots, or that he devised a scheme for the purpose of obtaining money or property,--specifically, the salary--powers and privileges of the Office of Supervisor of the Town of Fallsburg, by false and fraudulent
Page 452
pretenses, representations or promises as alleged in the indictment.The jury was instructed to reach a general verdict.
When Judge Brieant took the verdict, the foreperson of the jury first replied "undecided," then "not guilty," and finally "guilty." He polled the jury, which unanimously affirmed the guilty verdict, whereupon, with the consent of counsel, he initiated the following exchange with the foreperson:
THE COURT: ... I would like to be sure there is no confusion.
JUROR NUMBER 1: Yes, we started to break it down by issues. And as you recall, the first part you said there were two parts to it. And we either had to have the first or the second. So the first one, we did not agree on, but the second we did agree on.
THE COURT: And the second one was that the purpose of the scheme was to acquire the office? Is that what the second one was?
JUROR NUMBER 1: Right.
THE COURT: Now, with that clarification, are all of you jurors in agreement as to what the foreperson has said?
THE JURORS: Yes.
THE COURT: Is the jury's verdict unanimous?
THE JURORS: Yes.
THE COURT: All right, the record will indicate that you all so advised the Court, and the Court will direct that the verdict be recorded as rendered as a verdict of guilty.
Ingber v. Enzor, 664 F.Supp. 814, 820-21 (S.D.N.Y.1987). Ingber was convicted of count nine on January 16, 1986.
The remaining counts were tried before Judge Brieant without a jury. The count charging the sewer fraud scheme also alleged two purposes: (1) obtaining cash and property of the town; and (2) depriving the town of Ingber's "honest and faithful services" as Supervisor. At trial, the government presented evidence that Scaffold was owned by Ingber's father and brother, and that Ingber was secretary-treasurer of the company. In violation of state laws governing conflicts of interest, Ingber concealed his involvement with Scaffold, issued his personal guaranty to ensure that the company would get a surety bond (a prerequisite to receiving the town's sewer contract) and arranged for accelerated payments to Scaffold without the customary review process.
Judge Brieant found that the mail fraud had as its direct end "obtaining financial benefits for Service Scaffold." He declared Ingber guilty of "knowing and willful participation in ... early and excessive payments to Service Scaffold." Judge Brieant also found that, as Supervisor, Ingber had pressured the town to take early delivery of equipment needed for the project. Under the contract, Scaffold was required to store and care for the equipment until it was needed. Thus, Ingber relieved the company of its contractual obligation and shifted responsibility for insurance and storage to the town. In addition, because of the early delivery, the town's warranties on the equipment began to run before the date provided in the contract. Judge Brieant also pronounced Ingber guilty of count ten of the indictment, not at issue on this appeal.
Shortly after his conviction on count five, Ingber requested clarification of the Judge's trial findings. In a Memorandum and Order, dated July 22, 1986, the Judge clarified his findings but adhered to his earlier conclusions. He noted that Ingber "not only administered the contract but arranged early payments on the contract to favor Service Scaffold at the expense of the Town." The record included evidence of Ingber's knowing and willful failure to disclose the extent of his involvement with Scaffold and of his furtherance of the overall scheme through the failure to disclose.
On September 19, 1986, Ingber was sentenced to one-year terms of imprisonment each on counts five, nine and ten, to run consecutively, and was ordered, along with Scaffold, to make restitution to the town of $31,000 for losses sustained as a result of the sewer fraud scheme. This court summarily affirmed the convictions on February 4, 1987.
Page 453
In June 1987, the Supreme Court announced its decision in McNally v. United States, --- U.S. ----, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The mail fraud conviction in McNally rested on a jury instruction that allowed the jury to find guilt if they determined that the citizens had been deprived of their right to honest government. 107 S.Ct. at 2882. On appeal, the Supreme Court reversed, holding that 18 U.S.C. Sec. 1341 was directed solely at deprivations of property rights. Id. at 2881. Because the jury was not required to find a deprivation of money or property rights in order to convict, the jury verdict could not be upheld.
After the Supreme Court announced its decision in McNally, Ingber filed a petition pursuant to 28 U.S.C. Sec. 2255 attacking his mail fraud convictions. He claimed that the convictions on counts five and nine rested on deprivations of "intangible" rights not related to property or money. In a thoughtful Memorandum and Order, dated July 15, 1987, Judge Brieant held that McNally applied retroactively to Ingber's convictions. He upheld the conviction for the sewer fraud scheme, finding no merit in Ingber's contention that the conviction rested solely on a violation of the citizenry's right to honest government. Relying upon his findings of fact at trial, as later clarified, Judge Brieant emphasized that, although the indictment alleged that the scheme had a dual purpose, the government had produced ample evidence to support a verdict based on deprivation of rights to money and property. He...
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