State v. Sands

Decision Date29 August 1983
Docket NumberNo. 80-047,80-047
Parties, 37 A.L.R.4th 904 The STATE of New Hampshire v. David S. SANDS. The STATE of New Hampshire v. Thomas A. TSOUMAS.
CourtNew Hampshire Supreme Court

Gregory H. Smith, Atty. Gen. (Richard C. Nelson, Asst. Atty. Gen., on the brief and orally), for the State.

Brown & Nixon P.A., Manchester, and Tybursky & Watson, Portsmouth (Stanley M. Brown (argued), Manchester, and Thomas R. Watson, Portsmouth, on the brief), for defendant David S. Sands.

Nighswander, Martin, KillKelley & Kidder P.A., Laconia (David J. KillKelley, Laconia, on the brief and orally), for defendant Thomas A. Tsoumas.

BOIS, Justice.

These are appeals from a consolidated jury trial wherein both defendants were found guilty of several counts of perjury. See RSA 641:1. The defendant David S. Sands, an attorney, was convicted under two indictments pending against him. The defendant Thomas A. Tsoumas, who was charged under five indictments, was convicted on three of the charges and acquitted on one; the fifth charge was nol prossed by the State while the jury was deliberating.

The Trial Court (Dunfey, C.J.) reserved and transferred all questions of law raised by the defendants' exceptions. We overrule all the exceptions and affirm the convictions of both defendants.


These appeals arise out of three intricate transactions involving the defendants and various other individuals and entities. We will discuss each transaction separately and then outline the specific statements leading to the perjury indictments at issue.

A. Financing of "Wagner" Tract

In 1973, George Schroeder operated Ossipee Builders, Inc., and controlled Knox Mountain Corporation (Knox), which owned land in the Ossipee area, including a development known as Indian Mound. Schroeder subsequently transferred his interests in Knox to his wife and two sons, but continued to manage the corporation. During this time, Knox was embroiled in litigation with the Indian Mound lot owners. See Dove v. Knox Mt. Corp., 114 N.H. 278, 319 A.2d 640 (1974). Although the parties arrived at a partial settlement in that litigation, Knox did not have sufficient funds to satisfy its obligations under the settlement. In order to secure fulfillment of Knox's obligations, Attorney George W. Walker, of the law firm representing the Indian Mound lot owners, arranged to have Attorney John D. McLaughlin, Clerk of the Carroll County Superior Court, hold a second mortgage as trustee on a tract of land which Schroeder had previously acquired for $76,200 from Wagner Woodlands (Wagner). Wagner held a purchase money first mortgage on the property.

In 1973, Schroeder was in default on the Wagner purchase money mortgage and consulted the defendant Sands about the possibility of additional private financing. Sands advised Schroeder that he knew of an individual who was interested in making a loan. The parties started negotiations for refinancing, but Schroeder died shortly thereafter. His son, David Schroeder, continued the negotiations, which resulted in the refinancing of the mortgage on February 15, 1974.

During George Schroeder's lifetime, the Wagner tract had been transferred, subject to the outstanding balance of the purchase money mortgage, to another of George's sons, Robert H. Schroeder. Robert was an attorney employed in Sands' law office, who did legal work for his father and his brother, David. Robert subsequently transferred title to his sister Phyllis who, as part of the refinancing scheme, transferred title to "Ridgeview Realty Trust, David Schroeder, Trustee" (Ridgeview Trust), which was specifically created for that purpose. Simultaneously, and as part of the same transaction, a "Forest Preservation Trust, William Smith, Trustee" (Forest Trust) was created to lend money to Ridgeview Trust. On February 15, 1974, Forest Trust loaned Ridgeview Trust funds which were used to pay off the entire balance of the purchase money mortgage held by Wagner. The new loan provided Ridgeview Trust with terms more favorable than those of the previous Wagner purchase money mortgage. Upon learning of the refinancing, Attorney McLaughlin subordinated his second mortgage to that of Forest Trust.

Throughout all these negotiations, neither David Schroeder nor anyone else ever met "William Smith," the named trustee of Forest Trust. David Sands later alleged under oath that he created the Forest Trust to permit the loan to be made by his good friend, Thomas A. Tsoumas, who, for personal reasons, wished to maintain anonymity as the lender. Sands further testified that he loaned the defendant Tsoumas funds at the time of the closing, so as to enable the loan to be made.

B. Financing of "Plante Property"

The Forest Trust also made a $25,000 loan to Raymond and Janet Plante. The Plantes had purchased a summer resort property from one Roger Krey, who was represented by Attorney Frederick L. Cox, the part-time County Attorney for Carroll County. A bank held a first mortgage on the property while Krey held a purchase money second mortgage, and the Forest Trust loan was secured by a third mortgage on the real estate. The Plantes soon defaulted on their obligations, and on foreclosure, Sands, acting for Forest Trust, bought in the property, paid off the first and second mortgages, and refinanced the property.

At the time of the original sale to the Plantes, Krey and the Plantes had an understanding entitling the Plantes to select and purchase certain items on the property. Krey was entitled to remove any personalty that the Plantes did not take, but those articles which he did not remove would belong to the Plantes. Disputes arose, and Attorney Cox, representing Krey, who claimed a right of ownership in certain furniture, engaged in civil litigation against the Plantes.

The Plantes had also borrowed substantial sums of money from one Wilma Lee Rondella, who was an unsecured creditor. Attorney Robert C. Varney, who worked out of the same law office as Attorney Walker, brought suit for Rondella against the Plantes and obtained an ex parte attachment on the personal property which the Plantes had purchased at the summer resort.

The defendant Sands learned of Varney's attachment, and on February 1, 1977, acting on behalf of "William Smith, Trustee of Forest Trust," also filed a petition for ex parte attachment of the Plantes' personalty. Statements made in reference to the signing of the ex parte petition are the bases for both indictments against Sands and one indictment against Tsoumas. The other indictments against Tsoumas relate to statements made in reference to the signing of two bank withdrawal slips.

C. Blaeser/Knox Transaction and Litigation

In 1972, Knox sold land out of the Indian Mound development to Gustav and Erika Blaeser, who had a home built on the land by George Schroeder's firm, Ossipee Builders, Inc. The land was encumbered by two undischarged mortgages held by the Carroll County Trust Company. When the Blaesers attempted to sell the premises in 1974, they discovered the two undischarged mortgages. The trust company, represented by Attorney Peter G. Hastings, subsequently sold the premises at a foreclosure sale.

The Blaesers brought suit against Knox through Attorney Peter H. Fauver. Attorney Robert Schroeder represented Knox and confessed judgment against the corporation. The judgment, however, appeared to be uncollectible against the company, and Fauver enlisted the aid of Attorney Varney in an effort to collect.

Varney subsequently sought to collect the judgment by obtaining a lien against the Wagner tract. The records at the registry of deeds revealed and confirmed the journey of the Wagner tract from Knox to George Schroeder, to Robert Schroeder, to Phyllis Schroeder, to "David Schroeder, Trustee of Ridgeview Trust," and finally to Forest Trust as mortgagee. The deed to Ridgeview Trust, the Ridgeview declaration of trust, the Forest declaration of trust, and the mortgage to Forest Trust, were all recorded sequentially at the registry. Acting on behalf of the Blaesers, Varney filed a bill in equity to "Reach and Apply" (Blaeser v. Schroeder ), alleging that Knox had been stripped of its assets to defraud its creditors, including his clients, the Blaesers. Several of the Schroeders were named as defendants. While still unidentified, "William Smith, Trustee of Forest Trust," was also made a defendant on the theory that under the circumstances he should have known about the alleged fraudulent transactions.

The defendant Sands became aware of the bill in equity and the fact that "William Smith" was named as a party defendant. Sands advised the Schroeders that he would represent Smith, and the Schroeders obtained other counsel.

D. Basis of Perjury Indictments

The present perjury claims relate to confusion existing during the Blaesers' suit (Blaeser v. Schroeder ) as to the identity of "William Smith." The identity of "William Smith" was significant in the Blaeser litigation for several reasons. First, "William Smith," through Sands, had appeared specially and filed a motion to dismiss for lack of jurisdiction. Resolution of this motion, which was ultimately denied by King, J., required knowledge of the identity of "William Smith" and his contacts with the State of New Hampshire. Second, the Blaesers needed to know the identity of "William Smith" in order to show that he had participated in the allegedly fraudulent scheme. Finally, the identity of "William Smith" was significant to the Schroeder defendants because if Sands, their attorney in other matters, turned out to be Smith, they might have been able to show a breach of fiduciary duty and to set aside the Forest Trust mortgage.

The defendant Sands had refused to disclose William Smith's identity, to supply a street address, or to otherwise assist the Blaesers in completing service on Smith. Service was eventually made, pursuant to court order (Douglas, J.), by serving the...

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