Porcelli v. U.S., 885

• Decision Date: 27 May 1992
• Docket Number: No. 885,D,885
• Parties: Oscar PORCELLI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 91-2485.
• Court: U.S. Court of Appeals — Second Circuit

Page 1306

964 F.2d 1306

Oscar PORCELLI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 885, Docket 91-2485.

United States Court of Appeals Second Circuit.

Submitted Jan. 14, 1992.

Decided May 27, 1992.

Vivian Shevitz, Jane Simkin Smith, Georgia J. Hinde, New York City, for petitioner-appellant.

Andrew J. Maloney, U.S. Atty., E.D.N.Y., Emily Berger, and Faith Gay, Asst. U.S. Attys., Brooklyn, N.Y., for respondent-appellee.

Before OAKES, Chief Judge, NEWMAN, Circuit Judge, KEENAN, District Judge. ^*

OAKES, Chief Judge:

This appeal is from the denial of a petition for habeas corpus under 28 U.S.C. § 2255 (1988) by the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge. Oscar Porcelli's convictions on sixty-one counts of mail fraud, 18 U.S.C. § 1341 (1988), and one count of violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(c) (1988), were upheld by a divided panel of this court, United States v. Porcelli, 865 F.2d 1352 (2d Cir.), cert. denied, 493 U.S. 810, 110 S.Ct. 53, 107 L.Ed.2d 22 (1989). The principal basis for the section 2255 motion and this appeal is a decision of the New York Court of Appeals, State v. Barclays Bank of New York, N.A., 76 N.Y.2d 533, 563, 561 N.Y.S.2d 697, 563 N.E.2d 11 (1990), post-dating Porcelli's petition for certiorari. Porcelli claims that Barclays undercuts the original rationale for affirming his convictions, and that mail fraud, as defined by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), was not committed as the Porcelli panel majority thought it had been. This is said to constitute an intervening change in the law so as to require the granting of Porcelli's section 2255 application. See Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305-06, 41 L.Ed.2d 109 (1974); Wright v. United States, 732 F.2d 1048, 1056-57 (2d Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 774 (1985). In the interests of judicial economy, this appeal was referred to the same panel that heard the original appeal. We unanimously affirm.

Porcelli's convictions for mail fraud and, hence, RICO, were affirmed on the basis that the filing of false sales tax returns for twelve of Porcelli's gas stations constituted federal mail fraud. 865 F.2d at 1361. It was argued, persuasively to Judge Newman in dissent, that McNally's construction of the federal mail fraud statute made it inapplicable to Porcelli's conduct in that there was no "deprivation" of the State's property because there was no showing that Porcelli had collected sales taxes and failed to remit them to the tax collector. Porcelli, 865 F.2d at 1368-69 (Newman, J., dissenting). The panel majority, however, took the view that the filing of false sales tax returns deprived the state of property in the form of choses in action. These choses in action derived from the "direct and independent" obligation under New York law placed on a vendor such as Porcelli to collect and pay the taxes to the state, whether or not the taxes were actually collected. Id. at 1360-61.

Barclays involved a suit by the state as payee of certain checks to recover against the depositary bank proceeds paid over endorsements forged by the taxpayers' dishonest accountant. Porcelli argues that Barclays stands for the proposition that "the State had no property interest where it did not first have possession of the tax dollars." We believe Barclays does not involve the question whether choses in action in state sales tax law constitute "property", and is therefore distinguishable. As stated, the case involved a dishonest accountant who computed state tax obligations for his clients, received from them checks payable to the state, forged endorsements on the checks, and deposited them in his own Barclays Bank account. After accepting the deposits, the bank collected money from the clients' banks, and permitted the accountant to withdraw the proceeds. The New York Court of Appeals affirmed the dismissal of the state's claim against Barclays for the face amounts of the checks either under the Uniform Commercial Code (UCC) or in restitution or quasi-contract. In terms of the UCC, the Court held that "a payee must have actual or constructive possession of a negotiable instrument in order to attain the status of a holder (see UCC 1-201 and to have an interest in it." 76 N.Y.2d at 536, 561 N.Y.S.2d at 698, 563 N.E.2d at 12. In terms of relief by way of restitution or quasi-contract, the Court held: "The checks were never actually or constructively delivered to [the state]. It, therefore, never acquired a property interest in them and cannot be said to have suffered a loss." 76 N.Y.2d at 540-41, 561 N.Y.S.2d at 701, 563 N.E.2d at 15.

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