U.S. v. Amiel, s. 1021

• Decision Date: 05 September 1996
• Docket Number: 1022 and 751,D,Nos. 1021,s. 1021
• Citation: 95 F.3d 135
• Parties: UNITED STATES of America, Appellee, v. Hilda AMIEL, Defendant, Kathryn Amiel, Joanne Amiel and Sarina Amiel, Defendants-Appellants. ockets 95-1286, 95-1287 and 95-1288.
• Court: U.S. Court of Appeals — Second Circuit

Page 135

95 F.3d 135

UNITED STATES of America, Appellee, v. Hilda AMIEL, Defendant Kathryn Amiel, Joanne Amiel and Sarina Amiel, Defendants-Appellants.

Nos. 1021, 1022 and 751, Dockets 95-1286, 95-1287 and 95-1288.

United States Court of Appeals Second Circuit.

Argued March 28, 1996.

Decided Sept. 5, 1996.

Stanley A. Teitler, New York City (Stanley A. Teitler, P.C., New York City), for Defendants-Appellants Kathryn Amiel and Joanne Amiel.

Bennett M. Epstein, New York City, for Defendant-Appellant Sarina Amiel.

Edgardo Ramos, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney, Eastern District of New York, Peter A. Norling, Shari D. Leventhal and Gary Brown, Assistant United States Attorneys, Brooklyn, NY, of counsel), for Appellee.

Before: NEWMAN, Chief Judge, and OAKES and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Kathryn, Joanne, and Sarina Amiel appeal from a judgment of conviction entered in the Eastern District of New York on May 12, 1995 (Thomas C. Platt, Judge ) following a jury trial. The Amiels were convicted of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, and various counts of mail fraud, in violation of 18 U.S.C. § 1341. These charges stem from the Amiels' alleged distribution of fraudulent artwork attributed to Chagall, Dali, Miro and Picasso, and falsely represented to be pencil signed by those artists.

On appeal, the defendants argue that (1) the evidence upon which their convictions were based was legally insufficient; (2) the district court erred in denying their Rule 33 motion for a new trial based on newly discovered evidence; and (3) their convictions and sentences were barred by double jeopardy, as they had already been subject to civil forfeiture proceedings. Sarina Amiel additionally argues that the judge's derogatory comments to defense counsel in front of the jury deprived her of a fair trial. For the reasons stated below, we reject these arguments, and affirm the defendants' convictions.

I. BACKGROUND

Leon Amiel, father to Kathryn and Joanne, and grandfather to Sarina, was a major force in the art world before his death in 1988. One of the most prominent American publishers of modern art, Leon enjoyed personal friendships with Chagall, Dali, Miro and Picasso. ¹

Leon was President and owner of Amiel Book Distributors Corporation and Leon Amiel Publishing, Incorporated. Through these companies, he possessed and marketed a substantial inventory of print and lithograph art. The government has revealed that it was investigating Leon before his death for circulating fraudulent prints.

After Leon's death in October 1988, his brother Sam briefly ran his companies. However, Leon's wife, Hilda, fired Sam after she discovered that he was stealing paintings. Hilda took over the company's operation with the help of her daughters, Kathryn and Joanne. ² Hilda, Kathryn and Joanne became officers of Leon Amiel Book Distributors Corporation, and of a new company that they founded called Original Artworks, Ltd. Hilda and Kathryn ran both companies full-time, while Joanne worked part-time on sales, bookkeeping, and day-to-day activities. Sarina, Kathryn's daughter and a full-time college student at Boston University, was a periodic employee and account representative for Original Artworks, responsible for sales and customer service.

A. The Civil Proceedings Against the Amiels

In July 1991, following an undercover investigation of the Amiels' sales practices, the government instituted civil forfeiture proceedings against several million dollars worth of the Amiels' real and personal property, alleging that the property was subject to forfeiture under 18 U.S.C. § 981. The Amiels failed to serve any responsive pleadings to the Verified Complaint or any response to the first set of interrogatories, prompting the government to move for a default judgment. After the Amiels failed to file any declarations, affidavits, memoranda of law or other written responses to the government's motion, the district court entered a default judgment, on October 30, 1991. The court rejected the Amiels' motion for an order vacating this decree on the ground of excusable neglect, and the Amiels failed to appeal this decision in a timely fashion.

B. The Criminal Proceedings

On March 2, 1992, the government filed a 30-count criminal indictment against Kathryn, Joanne, and Sarina Amiel charging them with mail fraud and conspiracy to commit mail fraud. Counts 1-3 of the indictment charged the Amiels with mail fraud in connection with their sale of allegedly fake prints to two undercover government investigators, Leung and Hang, who posed as art dealers interested in purchasing authentic works of art. Counts 4-29 also alleged mail fraud, in connection with the Amiels' sales to three art dealers, Coffaro, Wallace, and Groeger. Count 30 of the indictment charged the Amiels with conspiring with Coffaro, Wallace, and Groeger to commit mail fraud.

The Amiels moved to dismiss the indictment on the grounds that the forfeiture judgment created former jeopardy in violation of the double jeopardy clause of the Constitution. The district court denied this motion, and this court affirmed, without prejudice to renewal of the motion by the defendants at the conclusion of trial. United States v. Amiel, 995 F.2d 367, 371-72 (2d Cir.1993).

C. Evidence Presented at Trial

1. The Art Distributors

Philip Coffaro, an art dealer, testified pursuant to a cooperation agreement with the government. Coffaro began purchasing artwork from Leon Amiel on a regular basis in 1979. Initially, Coffaro believed that the works he purchased from Leon Amiel were authentic. However, within approximately two years Coffaro concluded that the artwork he obtained from Leon was "no good," based on criteria such as the quantity of the material available, its color, and the paper. Nevertheless, Coffaro continued to purchase artwork from the Amiels.

Coffaro told the jury that he had seen works of art being printed at the Amiels' Secaucus facility, and had later purchased these prints as limited edition lithographs. Leon once told Coffaro that he purchased some of his counterfeits in Europe. On one occasion, Coffaro had seen Leon fraudulently sign and number pieces of artwork created at his Secaucus facility. Leon also instructed Coffaro on how to place fake edition numbers on the fake prints so as to avoid detection.

The jury also heard replayed a consensually-recorded telephone conversation between Coffaro and another of the defendants' distributors, Zabrin. ³ During that conversation, Coffaro explained to Zabrin that Leon Amiel purposefully kept his inventory of fake prints in an unsigned state, forging the signatures of the artist only when orders were placed. This way, in the event he was discovered, he could explain that he was simply selling the prints as unsigned posters.

Coffaro presented evidence indicating that the defendants continued to fraudulently distribute fake prints following Leon's death. Coffaro described a meeting, after Leon's death, with Hilda, Joanne, and Kathryn, to discuss Coffaro's prerequisites for doing business with them. He complained to the Amiels that the quality of their artwork was "downgrading." He wanted a guarantee that the material he got from them would be "clear. No ink stains. Dimensions ... correct, etcetera, etcetera." Hilda told Coffaro that they had already "taken care of most of that in Secaucus, and the material was looked at and everything that looked bad was thrown out." She also promised him a letter verifying the authenticity of prints he purchased.

Coffaro continued to purchase purportedly limited edition, hand-signed prints from the defendants. He placed orders, often over the telephone, with Hilda, Kathryn, or, on occasion, Joanne. In keeping with the course of dealing he established with Leon, the prints Coffaro purchased were usually pencil-signed by the purported artist, but not numbered.

However, Coffaro continued to be dissatisfied with the quality of the work he received from the Amiels. In particular, he was having problems with the signatures, which Zabrin told him "looked child like and were horrible." On one occasion, when Coffaro complained to Kathryn about the poor signature quality, she assured him that the signatures would be better when Sarina returned from college. On another occasion, Coffaro received a group of prints purportedly by Calder that "were so bad that [he] didn't even want to show them to people." When he confronted Hilda and Kathryn with this problem, Kathryn told him "look, I know the Calders are terrible, my mother had my uncle signing them, but Sarina will be coming home soon and they will be better."

Coffaro testified that he falsely represented the works he purchased from the Amiels as genuine when he sold them, thereby defrauding the public.

Thomas Wallace, an art dealer and a retired New York City police officer, also testified pursuant to a cooperation agreement with the government. Like Coffaro, Wallace purchased purportedly limited-edition, hand-signed prints from Leon that he knew to be counterfeit. Like Coffaro, he also provided numerous details about Leon Amiel's fraudulent practices.

Some time after Leon's death, Wallace met with Hilda, Kathryn, Joanne, and Sarina to discuss his future business dealings with the Amiels. The defendants told Wallace that they would continue selling to him, but Joanne told him that there wouldn't be any certificates of authenticity--that "the product would be sold as is, the way her father sold it." Wallace said that this arrangement would be unacceptable, and the matter was left unresolved.

Around this time, Wallace also helped the Amiels conduct an inventory of their facility in Secaucus, New Jersey. During the course of the inventory, Wallace saw large quantities of prints, some signed, some unsigned. There were stacks of as many as 100 of a particular...