Peisner v. State
| Decision Date | 27 July 1964 |
| Docket Number | No. 363-A,363-A |
| Citation | 202 A.2d 585,236 Md. 137 |
| Parties | Arthur A. PEISNER v. STATE of Maryland. |
| Court | Maryland Court of Appeals |
Allen A. Sperling, Silver Spring (Arthur A. Peisner, pro se, Silver Spring, on the brief), for appellant.
Franklin Goldstein, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy and Alfred Burka, State's Atty. and Asst. State's Atty., respectively, for Montgomery County, Rockville, on the brief), for appellee.
Before BRUNE, C. J., HAMMOND, PRESCOTT and HORNEY, JJ., and IRVINE H. RUTLEDGE, Special Judge.
The defendant-appellant, Arthur A. Peisner, was indicated on six counts charging him with conspiracy, along with Robert H. Symonds, David Lerner and Morton Lifshutz, to defraud the depositors of the Mutual Security Savings and Loan Association, hereafter called Mutual, (three counts) and to defraud said Mutual (three counts). A jury found him guilty on all counts, and he was sentenced to nine years' imprisonment on each count, the sentences to run concurrently. From the judgment and sentences Peisner appeals.
The appellant, both an accountant and a member of the District of Columbia Bar, but not of the Maryland Bar, was offered counsel by the trial court, but he declined and elected to try his own case. Only after his conviction and shortly before his appeal was to be heard by this Court did he employ counsel.
The appellee filed a motion to dismiss the appeal on the ground that the appellant failed to print necessary excerpts from the Record, failed to print the charge to the jury as required by Maryland Rule 828 b 1(a), and even failed to print many pages which he indicated he would print. The appellee, however, printed the necessary excerpts in its Appendix, and the motion will be denied. Bergen v. State, 234 Md. 394, 199 A.2d 381.
The conspiracy with which Peisner was charged, reduced to simple form from a tremendous maze of testimony, was substantially this: the appellant agreed with the said Lerner, Lifshutz and Symonds to operate a building and loan company in Maryland, along with other companies which they controlled, and to attract depositors by advertising dividends of 5% although at the time they so advertised they had no idea what dividends Mutual could honestly afford to pay. They formed a veritable 'covey' of corporations all controlled by the same group, but only three of these figured prominently in the trial. These were Wayne Investment Company (Wayne), Kentland Construction Corporation (Kentland), and Mutual. All money was funneled into Wayne, or as one officer, Lerner, put is, 'There was a free transfer of moneys between these corporations which would seem to indicate that they are one and the same although each one of the corporations did different things.' Symonds said that he considered the three corporations to be actually one.
The appellant said that he was legal counsel for all three corporations, and an officer in Wayne and Kentland. The four agreed to keep no books for the corporations and the sum of around $3,000,000 is still unaccounted for. There was an agreement between the appellant, Lifshutz and Symonds (Lerner received only $150 per month) that each should draw from the corporations or any of them such sums as their needs or desires might require. Apparently the relationship between the three, as long as the money lasted, was most harmonious. The money they drew was, however, in large part, the money which depositors had been induced to deposit upon a representation that 5% dividends would be paid.
The appellant testified
Not only did the three draw money out of the corporations for themselves, but drew money out to lend to acquaintances without the knowledge of each other. Peisner testified that without his knowledge, although he was an officer in Wayne Symonds loaned money out of Wayne to a Mr. Hirsh, and also loaned money to a Mr. Rosenkoff and a Mr. Rosenstein 'who also were in the money-lending business.'
About seventy deeds of trust were recorded in October or November 1961. These were drawn in favor of Mutual and purported to represent values in excess of a million dollars. Yet they were, in the appellant's own words, 'fictitious, by and large. * * * these trusts bore no relation to the value of the property and were greatly in excess of any value on the property and were just plain fictitious and manufactured.' The appellant disclaimed any knowledge of or responsibility for the deeds of trust, and argues that the fictitious amounts were filled in after he had left the corporations. The testimony of Symonds, however, is to the effect that Peisner was the man responsible for the preparation of the deeds of trust.
It appeared that Peisner took money out of, or drew a salary from Kentland and Wayne; he drew no salary from Mutual but had the use of a station wagon belonging to Mutual and he and his family used credit cards of Mutual. Such use rebuts his claim that he severed connections with the corporations after July 1, 1961 because he continued to use the station wagon and the credit cards thereafter, as well as the airplane hereinafter mentioned, and a Cadillac or two, although Peisner was not sure which corporation it was that paid for the Cadillac. It may well be that after July 1, 1961 the corporations did not receive counsel and guidance from Peisner, yet as his remunerations in one form or another continued, it can be said that his severance from the corporations and the conspiracy after July 1, 1961 was, at most, a partial one.
The operations of the business of Mutual through Symonds, Lifshutz and Peisner can scarcely be characterized as the usual operations of a building and loan association. These operations, set forth in the testimony of the appellant himself, included the following:
(a) A loan of $30,000 from Mutual to Peisner to build a house which was put in the name of Symonds because Peisner's credit rating was poor. A mortgage was obtained from an insurance company upon a misrepresentation that the house cost considerably more than $30,000 in order to justify a loan of that amount. Said the appellant, 'This I have done with great frequency in every building and loan association in Washington.'
(b) Although Mutual purported to be a building and loan association, and the appellant testified that he advised Symonds and Lifshutz as to proper procedure for running a savings and loan association, Mutual did not even observe the formality of forming an appraisal committee.
(c) Two large paintings were purchased from Hausner's Restaurant in Baltimore with funds drawn from Wayne. Peisner did later repay the amount spent when a receiver in bankruptcy ordered it.
(d) About $14,500 was taken from Kentland to pay for advertisements in the New York Times and the Washington Post for an organization known as the Beachhead Brigade for Cuban Freedom. Peisner described himself as general counsel for the organization, and was an officer in Kentland, but told the jury that he did not know who authorized the payment out of Kentland funds.
(e) In the Spring of 1961 Wayne bought a Beechcraft airplane. The explanation given by the appellant was that Wayne or Kentland or another corporation controlled by Symonds, Lifshutz and Peisner bought a hotel in Florida and better transportation than rail and bus was needed. The explanation does not cover why Peisner also made trips in the plane to San Domingo, Haiti and Las Vegas. Expenses of the trips were charged to Wayne Corporation.
About November 1961 Peisner sold the airplane to a Dr. Barnett, a brother of the Governor of Mississippi. By that time the airplane had become Peisner's own, according to his testimony, because he took it in part payment when he sold his stock in Wayne, although other witnesses denied this was a fact. The change in ownership was confirmed (at least in Peisner's mind) by the fact that when he sold the airplane he pocketed the money. Yet he admits that when he signed the bill of sale for it he signed as president of Wayne.
(f) Peisner bought a fur coat for his wife for $2,652.31 with his personal check which was returned for insufficient funds. Peisner was out of town when the check was returned and Symonds paid for the coat with funds from Wayne. Upon his return he says Symonds told him, 'Well, we'll just consider this as part of your salary.' Peisner told the jury that the fur coat transaction 'at first blush might appear spectacular.'
He characterized the manner in which business was conducted by the three corporations as 'haphazard'.
The appellant elected to take the witness stand and made a lengthy statement concerning practically every phase of the corporations' operations, covering rather exhaustively every main point and ramifications of the involved and unusual operations of the three corporations involved.
In the course of the four-day trial, in a voice which the appellant states was audible to the jury, the Assistant State's Attorney once raised objection to 'the lies that this man [the appellant] is mouthing', and also said that he had 'millions'.
Neither in the brief he prepared himself, nor in the memorandum in place of a reply brief prepared by his counsel and submitted after the argument, does the appellant raise any question as to the sufficiency of the evidence to sustain the conviction. The questions raised on behalf of the appellant, properly presented, are these:
1. Assuming that certain evidence was improperly admitted, did the appellant waive any error in its admission by...
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