Kovens v. United States
| Decision Date | 04 February 1965 |
| Docket Number | No. 20140.,20140. |
| Citation | 338 F.2d 611 |
| Parties | Calvin KOVENS and Leon Cohen, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chester Bedell, Jacksonville, Fla., Irwin J. Block, W. G. Ward, Miami, Fla., for appellants.
Richard W. Schmude, Atty., Dept. of Justice, Washington, D. C., Edith House, U. S. Atty., Miami, Fla., William A. Paisley, Atty., Dept. of Justice, Washington, D. C., Herbert J. Miller, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Atty., Dept. of Justice, Washington, D. C., for appellee.
Before TUTTLE, Chief Judge, and JONES and GEWIN, Circuit Judges.
This is an appeal from the conviction, based on a jury verdict of guilty, of the two appellants on four counts each of a ten-count indictment charging violation of, and a conspiracy to violate, Title 18 U.S.C.A. § 1014 providing in substantial part: "Whoever knowingly makes any false statement * * * for the purpose of influencing in any way the action of * * * a Federal Savings and Loan Association * * * upon * * * advance * * * shall be fined not more than $5000 or imprisoned not more than two years, or both." Appellant Kovens was the President and appellant Cohen the Secretary of one of the corporations involved in the transaction with the Miami Beach Federal Savings and Loan Association.
The first three substantive counts of the indictment charged Kovens with having made specific false statements. In view of the attack made by the appellants on the indictments themselves, it is necessary that the exact language of the indictment be quoted. With the exception of the dates and amounts involved each of the second and third counts are similar to the first, which was as follows:
"That on or about the 8th day of December, 1958, at Miami Beach, Dade County, in the Southern District of Florida, Calvin Kovens, the defendant herein, in the capacity of President of the Cal Kovens Construction Corp., Miami Beach, Florida, did knowingly and willfully make a false statement and report for the purpose of influencing the action of the Miami Beach Federal Savings and Loan Association, Miami Beach, Florida, a Federal Savings and Loan Association, in advancing funds pursuant to a Construction Loan Agreement dated the 5th day of December, 1958, between the said Miami Beach Federal Savings and Loan Association, Ruedd, Inc. and Cal Kovens Construction Corp., all of Miami Beach, Florida, in that the said Calvin Kovens on or about the 8th day of December, 1958, did submit to the said Miami Beach Federal Savings and Loan Association at Miami Beach, Florida, a Construction Draw requesting payment of the sum of $149,946.86 from funds held in escrow by the said Miami Beach Federal Savings and Loan Association for the said Ruedd, Inc. pursuant to the terms of the said Construction Loan Agreement, and certifying that the funds enumerated in the said Construction Draw and itemized on the reverse side thereof had been expended for the sole purpose of constructing the improvement on the property described therein, whereas in truth and in fact, as the said Calvin Kovens then and there well knew, the said Construction Draw was false in that the entire amount of the funds enumerated in the said Construction Draw and itemized on the reverse side thereof was not expended for the sole purpose of constructing the improvement on the property described therein, in violation of Title 18, United States Code, Section 1014."
In general, whereas Count One dealt with the first "Construction Draw" on the building contract, Counts Two and Three dealt with the second and third "Construction Draws" respectively.
Count Four was dismissed by the court before trial. Count Five dealt with an alleged false statement of cash on hand and resulted in a verdict of not guilty by the jury. Counts Six, Seven and Eight alleged Cohen's participation in the same three allegedly false statements dealt with in Counts One, Two and Three.
In response to a motion by the appellants for a Bill of Particulars, the trial court entered an order "requiring the United States to state what funds, drawn under the provisions of the construction loan agreement, are claimed to have been diverted or not expended for the sole purpose of constructing the improvements on the property described in the loan agreement. * * *"
The Bill of Particulars filed by the United States, undertook to specify in some detail certain items purportedly included in the total amounts specified as each of the three Construction Draws which the Government charged "had not in fact been expended as alleged." Appellants made no further contention that the itemization of the amounts by which the three Construction Draws were alleged to be false was not sufficient to meet their requirements in preparing for trial.
In order better to understand the facts surrounding the transaction resulting in the indictments, it is necessary only to know that the appellants were President and Secretary respectively of the Cal Kovens Construction Corp. which had a construction contract for the building of a shopping center on land on a leasehold owned by Ruedd, Inc., a corporation of which Kovens was also President; that Kovens, Ruedd and the Association had entered into a "construction loan agreement" which, among other things, provided for current funds to provide for construction costs upon certain conditions. One of these conditions was at the time of any payment made to the owner or contractor "The Contractor or Owner shall submit to the Association waivers of liens from the Contractor and materialmen, and a final survey together with such other evidence as it may desire, showing that all payroll, material bills and any and all other indebtedness occurred in the course of the construction have been paid in full."
The three Draws which the Government claimed contained false statements were in the form of a sworn statement requesting the payment of the stated amount and containing the following language.
Each of the statements appears to have been signed and sworn to by Kovens. None of the statements contained an itemized list of expenditures "on the reverse side hereof" but each of them had associated with it a statement on the letterhead of Cal Kovens Construction Corp., addressed to Miami Beach Federal Savings and Loan Association, and marked, Re: Ruedd, Inc., and under that, Requisition No. 1, 2 or 3 respectively. This statement then contained an itemized list of what appeared to be subcontracts totalling the full amount of the general contract of $1,000,250, an item...
To continue reading
Request your trial
-
United States v. Kelly
...will be perceived that the principles of stare decisis are as applicable to this branch of the law as to any other. Kovens v. United States, 5 Cir., 1964, 338 F.2d 611, 615, cert. denied, 1965, 380 U.S. 976, 85 S.Ct. 1338, 14 L.Ed.2d 271; Katz v. United States, 1 Cir., 1963, 321 F.2d 7, The......
-
United States v. Bass
...§§ 1001, 1008, 1010, 1012, 1014, 1025; Kay v. United States, 1938, 303 U.S. 1, 58 S.Ct. 468, 82 L.Ed. 607; see also Kovens v. United States, 5th Cir. 1964, 338 F.2d 611, 617; Bartlett and Company, Grain v. United States, 10th Cir. 1965, 353 F.2d 338, 343; United States v. Goberman, 3rd Cir.......
-
United States v. Helgesen
...was to incorporate in one codal section all of the business transactions of any of the specified agencies"). Kovens v. United States, 338 F.2d 611, 618 (5th Cir. 1964) ("the purpose of § 1014 is to protect authorized functions of specified institutions from `deceptive practices'"). Finally,......
-
U.S. v. Sheehy, 75-1361
...338 F.2d 439, 441 (2d Cir. 1964). See Kay v. United States, 303 U.S. 1, 5-6, 58 S.Ct. 468, 82 L.Ed. 607 (1938); Kovens v. United States, 338 F.2d 611, 616-17 (5th Cir. 1964), cert. denied, 380 U.S. 976, 85 S.Ct. 1338, 14 L.Ed.2d 271 (1965); cf. United States v. Sabatino, 485 F.2d 540, 544 (......