U.S. v. Amico

• Decision Date: 23 May 2007
• Docket Number: Docket No. 03-1737-cr(L).,Docket No. 03-1765-cr(CON).
• Citation: 486 F.3d 764
• Parties: UNITED STATES of America, Appellee, v. Robert J. AMICO, Richard N. Amico, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

486 F.3d 764

UNITED STATES of America, Appellee, v. Robert J. AMICO, Richard N. Amico, Defendants-Appellants.

Docket No. 03-1737-cr(L).

Docket No. 03-1765-cr(CON).

United States Court of Appeals, Second Circuit.

Argued: December 11, 2006.

Decided: May 23, 2007.

Nathan S. Dershowitz, Dershowitz, Eiger & Adelson, P.C., (Victoria B. Eiger, on the brief), New York, N.Y., for Defendant-Appellant Richard N. Amico.

Matthew R. Lembke, Cerulli, Massare & Lembke, Rochester, N.Y., for Defendant-Appellant Robert J. Amico.

John-Alex Romano, United States Department of Justice, (Terrance P. Flynn, United States Attorney for the Western District of New York, Richard Resnick, Assistant United States Attorney, on the brief), Washington, D.C., for Appellee United States of America.

Before: SOTOMAYOR, B.D. PARKER, Circuit Judges, and KRAVITZ, District Judge.^*

B.D. PARKER, JR., Circuit Judge.

Robert J. Amico ("Robert Jr.") and Richard N. Amico appeal from judgments of conviction in the United States District Court for the Western District of New York (Siragusa, J.) on charges arising from a mortgage fraud scheme. Robert Jr. was convicted of a variety of financial crimes, including mail fraud, tax evasion, and conspiracy. His brother Richard was convicted on one count each of mail fraud, tax evasion, and conspiracy. During proceedings before the district court, as well as on appeal, the Amicos contend, principally, that the district judge should have recused himself because his handling of, and reaction to, his prior dealings with the government's main cooperating witness concerning a mortgage application for the judge created an appearance of partiality. We conclude that they are correct, and that recusal was required. See 28 U.S.C. § 455(a). Accordingly, the judgments of conviction are vacated.

This appeal deals exclusively with the appearance of partiality. Nothing we say should be understood to conclude—or to imply—that the district judge engaged in misconduct concerning the application. This appeal centers around the issue of recusal, a small facet of the proceedings below. Our need to discuss the issue in some detail should not obscure the fact that, during a long and complicated case, the district judge addressed the many other issues and problems presented to him with considerable skill and professionalism. But we do find that, as problems surrounding the application evolved, an appearance of partiality arose that made it inappropriate for him to continue to preside. See Chase Manhattan Bank v. Affiliated FM Ins. Co., 343 F.3d 120 (2d Cir.2003).

In addition to recusal, several other issues are raised. Since further proceedings will be required, we address only those issues calling for guidance on remand. They are: (1) whether the judge improperly failed to require the recording of side-bar discussions and chambers conferences; (2) whether statements made by Robert Jr. to his Probation Officer in a prior case should have been suppressed; (3) whether the fraud charge was adequate; and (4) whether there was sufficient evidence to convict Richard of mail fraud.

BACKGROUND

In December 2000, the Amico brothers, their father, Robert A. Amico ("Robert Sr."), Patrick McNamara, and others were charged in a multiple count indictment with conspiracy to defraud banks and private mortgage lenders by falsifying loan applications and misrepresenting the value of properties offered as collateral. The indictment also alleged that the defendants submitted false information on loan applications for borrowers, including themselves. The government alleged that Patrick McNamara, a mortgage broker, and Robert Sr., a builder, were the driving forces behind the scheme, which originated around 1993. During the course of the scheme, mortgages were obtained from various lenders on more than 100 homes based on false documentation. In many cases, the mortgage amounts were greater than the value of the properties being purchased. Some of the purchasers were apparently willing participants in the fraud, while others did not know that false information had been submitted on their behalf. At trial, Richard's main defense was that he was not involved in the scheme and that he too had been mislead by McNamara, who typically prepared false documents without Richard's knowledge.

In January 2001, McNamara entered into a plea agreement and agreed to cooperate, to fully disclose his criminal activity, and to testify. Because of his prominent role in the fraud, his cooperation and testimony were central to the government's case. Trial commenced on November 18, 2002.¹ On March 31, 2003, the jury convicted Robert Jr. of one count of engaging in a continuing financial crimes enterprise in violation of 18 U.S.C. § 225; one count of conspiracy to commit bank and mortgage fraud in violation of 18 U.S.C. § 371; four counts of mortgage fraud in violation of 18 U.S.C. § 1014; and sixteen counts of mail fraud in violation of 18 U.S.C. § 1341. Richard was convicted of one count of mail fraud in violation of 18 U.S.C. § 1341 and one count of conspiracy to commit bank and mortgage fraud in violation of 18 U.S.C. § 371. In addition, Robert Jr. and Richard each pleaded guilty to one count of tax evasion in violation of 26 U.S.C § 7206(1), and the remaining tax counts were dismissed.

The recusal issue arose from allegations by McNamara that he had helped prepare a fraudulent application in 1987—before the beginning of his scheme with the Amicos—for Judge Siragusa, who was then the First Assistant Monroe County District Attorney. Because the appearance of partiality stems from a cumulative series of events over a number of months, we review them in some detail. This review is complicated by the fact that during pretrial proceedings, as well as during the trial itself, numerous chambers and side bar conferences were not recorded.

The issue first surfaced on January 10, 2002 when the government wrote the judge and defense counsel that "during a debriefing, . . . Patrick J. McNamara advised the government that he believes he assisted your honor in obtaining a mortgage loan in the late 1980s (years before he met Robert A. Amico)." McNamara's claim was addressed the next day, first in an unrecorded chambers conference and then in open court. Richard's attorney, Peter Jacobson Esq. (who does not represent Richard on this appeal) stated that, while he was not suggesting any impropriety on the judge's part, he believed that McNamara had falsified documents on numerous occasions without the borrower's consent and may have done so with the judge's mortgage application. The judge volunteered that the property he purchased was worth more than the loan he had obtained and, consequently, any examination of McNamara on this loan would be irrelevant because the loans underlying the indictment involved inflated appraisals. The judge explained that he had no recollection of meeting McNamara, and assured the parties that "this will in no way affect [the judge's] ability to sit on the case." The judge concluded that, given the absence of evidence of any real conflict, "[r]ight now there's nothing to consider."

One week later, on January 18, 2002, counsel met with the judge in an unrecorded chambers conference. Although the precise exchange is disputed by the parties, the government informed the court that McNamara had changed his story. He was now claiming that in 1987 he had submitted a mortgage application on behalf of the judge which may have falsely indicated that the judge was married, when he was separated at the time—a fact that could have influenced his creditworthiness. During the conference, the judge called home and had a letter contained in his old divorce file faxed to chambers. The letter was sent to Gold Post Mortgage (Robert McNamara's employer at the time of the application), apparently accompanied by a copy of the judge's separation agreement, demonstrating that the broker was aware of his marital status. In view of the contents of the letter, the judge concluded McNamara's allegations were not an issue.

One week after this conference, the government wrote the court indicating that McNamara had changed his version of the events yet again. McNamara now stated that he was certain that he did not say that the judge was married on the application. In addition, the letter reminded the court that in the unrecorded January 18 conference, the government had disclosed that McNamara had told the government that while in detention between December 2000 and January 2001, McNamara had discussed the judge's application with Robert Sr. The government requested that defense counsel be precluded from questioning McNamara at trial about the judge's application.

On April 23, 2002, Jacobson submitted a proposed subpoena to the court requiring Key Bank of New York, the lender to which Gold Post had forwarded the judge's application, to turn over its files relating to the judge's mortgage. In response, the court informed Jacobson in an off-the-record telephone conversation that the subpoena was too broad given the confidential nature of the information that could be disclosed.

The subpoena issue resurfaced at an unrecorded chambers conference on September 6, 2002. Jacobson told the judge that he would be subpoenaing the judge's entire mortgage file in an effort to ascertain whether McNamara had falsified the judge's application. By this time it was apparent that Jacobson was intent on pursuing this issue for the ostensible purpose of showing that McNamara had devised the scheme underlying the indictment prior to, and independently of, the Amicos' involvement. Although the record is unavailable, apparently Jacobson also raised the possibility of reassigning the case. Later, on the record, the judge expressed his disapproval of Jacobson's intention to subpoena the mortgage file and cautioned him that no basis existed for recusal.

On October 9, 2002, the court learned during a...