Parker v. United States

• Citation: 378 F.2d 641
• Decision Date: 07 June 1967
• Docket Number: No. 6833-6835.,6833-6835.
• Parties: Everett L. PARKER, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee. PERMA-HOME CORPORATION, Defendant, Appellant, v. UNITED STATES of America, Appellee. Victor LEAVITT, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

378 F.2d 641 (1967)

Everett L. PARKER, Jr., Defendant, Appellant, v. UNITED STATES of America, Appellee.

PERMA-HOME CORPORATION, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Victor LEAVITT, Defendant, Appellant, v. UNITED STATES of America, Appellee.

Nos. 6833-6835.

United States Court of Appeals First Circuit.

May 22, 1967.

Rehearing Denied June 7, 1967.

Charles M. Burnim, Boston, Mass., with whom F. Lee Bailey, Boston, Mass., was on brief, for appellant in No. 6833.

Manuel Katz, Boston, Mass., with whom Paul T. Smith, Boston, Mass., was on brief, for appellants in Nos. 6834 and 6835.

Albert F. Cullen, Jr., Asst. U. S. Atty., with whom Paul F. Markham, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

Defendants, Perma-Home Corporation, Leavitt and Parker, together with one Conboy, were indicted for knowingly submitting a false F.H.A. loan application to the National Shawmut Bank of Boston for the purpose of obtaining an F.H.A. loan from the bank.¹ Perma-Home, a Massachusetts corporation with a place of business in the City of Lynn, sells home improvements so-called, i. e., roofing, siding, etc. Leavitt, its president, is actively engaged in the day to day operations of this business. Parker is a salesman for this company with authority to sign contracts and related documents on its behalf and Conboy was a customer of Perma-Home who, together with his wife, signed the F.H.A. application in question.

The case was tried to a jury. After the government had put in its case, defendants moved for judgments of acquittal under Fed.R.Crim.P. 29(a) on the ground that the evidence was insufficient to sustain a conviction. The trial court reserved decision on these motions. Thereupon Conboy and his wife took the witness stand and gave their version of the circumstances surrounding the signing of the F.H.A. application. Their testimony tended to exculpate Conboy, but implicated Parker. Quite understandably, Parker then took the stand in his own defense.² Neither Perma-Home nor Leavitt offered any evidence in their own behalf. At this point the defendants rested and renewed their motions for judgments of acquittal, but the trial court again reserved decision and submitted the case to the jury. The jury returned verdicts acquitting Conboy, but finding Perma-Home, Leavitt and Parker guilty as charged. The three last named defendants appealed. Their principal contention is that in passing on these motions the trial court was restricted to the government's evidence at the time it rested; that at that time the evidence was not sufficient to sustain a conviction and therefore the trial court erred in not granting these motions.³ Obviously, if the evidence at that time is sufficient to sustain a conviction, we need not consider the question of whether the trial court was so restricted. Accordingly, we turn to an examination of the evidence produced by the government.

On May 22, 1963, Parker sold certain home improvements to the Conboys on their residence in Spofford, New Hampshire. In order to formalize the deal he had the Conboys sign a Perma-Home contract for $1,800, of which $1,000 was for certain home improvements, the balance to be used to pay Conboy's indebtedness to a company known as Keene Finance Corporation. This contract was to be financed by Security Acceptance Corporation (S.A.C.). In addition to the contract, Parker had the Conboys sign certain other documents which were necessary for the financing of the S.A.C. loan. Among these was a promissory note and also a power of attorney under which S.A.C. could secure payment of the note by a mortgage on the Conboy's home. At some undetermined time S.A.C. exercised this power and took the mortgage. Parker also elicited certain information from the Conboys that was necessary for the loan application. This included such information as outstanding bills and credit references. He wrote all this down on a yellow Perma-Home form. Parker listed "Whatever debts the Conboys told me they owed." The only outstanding Conboy obligation listed was a debt owing to Keene Finance Corporation.⁴

The next day Parker telephoned this credit information into Perma-Home's office where it was recorded and a folder made up for this job. Later, Parker delivered all the documents to the Perma-Home office where they were filed in the Conboy folder. S.A.C. accepted the loan and Leavitt signed and sent a Perma-Home check for $800 to the Conboys, who used it to pay off Keene Finance Corporation.

On May 27, 1963, Parker negotiated another contract with the Conboys for $2,950. Perma-Home had no record of this transaction.

This brings us to the transaction which gave rise to this indictment. On June 29, 1963, Parker again sold the Conboys some additional home improvements in the amount of $1,450. In this connection Parker filled out the customary yellow Perma-Home form but did not put any credit information on it. The Conboys also desired to finance this contract and Parker had them sign the FH-1 credit application which is the subject of this indictment. There was testimony by Perma-Home's office manager that in the usual course of business FH-1 applications were prepared at the company office and then signed by the salesman and the home owner.⁵ Prior to delivering this application (FH-1 form) to Perma-Home, Parker telephoned the information relative to the sale to his office and asked "them" to get the credit information from the folder on the prior transaction of May 22. On July 1 some one in the Perma-Home office telephoned the loan application for the June 29 contract into the National Shawmut Bank⁶ but so far as appears did not mention to the bank the prior S.A.C. loan. Moreover, the bank's Investigation Work Sheet, which contained the information submitted to the bank over the phone, listed only the following three firms under the heading of "all open or recently paid instalment, trade or business accounts": (1) Coastal Acceptance, (2) G. M. A. C. and (3) Safford Gas Company. The recently paid up $800 Keene Finance obligation was not included as a reference.

On July 3, 1963, the bank approved this loan and on August 6 Perma-Home sent the bank a completion certificate, the contract, the security note and the FH-1 credit application. The FH-1 credit application did not mention the prior S.A.C. transaction and no debts whatever were listed on this document.⁷ At some time during the pendency of this loan application, the bank became aware of the S.A.C. transaction.⁸

There was testimony that it was the usual practice at Perma-Home to have all the papers prepared for submission to the bank at the same time and that practice was followed in this instance. There was also testimony that it was the usual practice for Leavitt to have all the documents relating to a loan readily available to him when he signed the completion certificate and endorsed the note which in this case were to be sent to Shawmut.

On August 6, 1963, Shawmut issued its check to Perma-Home for $1,450 and submitted the loan to the FHA for insurance — which FHA accepted. The Conboys never made any payments on this loan.⁹ This was the state of the evidence when the government rested.

In testing the sufficiency of this evidence on a motion for judgment of acquittal, we must determine whether there is substantial evidence from which a jury might fairly conclude guilt beyond a reasonable doubt. United States v. Conti, 339 F.2d 10 (6th Cir. 1964).¹⁰ In making such a determination we must view the evidence and the inferences that may be reasonably drawn therefrom in the light most favorable to the government. United States v. Conti, supra. Cf. Dirring v. United States, 328 F.2d 512 (1st Cir.), cert. denied, 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964).

From our examination of the evidence presented by the government we think the jury could fairly conclude beyond a reasonable doubt that these three defendants were guilty of knowingly...