U.S. v. Argentine, s. 85-1917

• Decision Date: 20 March 1987
• Docket Number: 85-1918,Nos. 85-1917,s. 85-1917
• Citation: 814 F.2d 783
• Parties: UNITED STATES of America, Appellee, v. Alfred ARGENTINE, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 783

814 F.2d 783

UNITED STATES of America, Appellee, v. Alfred ARGENTINE, Defendant, Appellant.

Nos. 85-1917, 85-1918.

United States Court of Appeals, First Circuit.

Argued Jan. 7, 1987.

Decided March 20, 1987.

Marc Bogatin, with whom Stanley S. Arkin, P.C., New York City, was on brief, for defendant, appellant.

David R. Collins, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Circuit Judge, ROSENN, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

Alfred Argentine appeals both his conviction on three counts of wire fraud, 18 U.S.C. Sec. 1343, and his conviction on a charge of willful failure to appear at a pretrial hearing, 18 U.S.C. Sec. 3150 (repealed). We reach only those issues which must be considered in order to permit proper disposition of these appeals, and we recount the facts only to the extent necessary to place appellate proceedings into proper perspective.

I.

On August 25, 1983, the appellant was indicted by a grand jury in the United States District Court for the District of Maine. He was charged with seven counts of wire fraud in violation of 18 U.S.C. Sec. 1343. ¹ The heart of the indictment was the accusation that Argentine, who was then managing the Oar House, a seafood restaurant in New York, devised an elaborate scheme to gull Atwood Brothers, Inc. (Atwood), a Maine firm. The essence of the plan, the grand jury alleged, was Argentine's arrangement to have Atwood, a lobster wholesaler, ship 20,000 pounds of the succulent delicacy from Maine to New York, under the false pretense that payment (in the form of a corporate check) would be forthcoming promptly. The purported payor in this "the-check-is-in-the-mail" gambit was to have been Clamico, Inc. (Clamico), proprietor of the Oar House and as such, Argentine's employer. The prosecution limned the appellant's role as comprising, for purposes of the federal criminal code, interstate telephone calls on seven different dates in furtherance of the scam. Each call was alleged to have been a part of the continuing artifice, though separately actionable under the statute.

Following his arraignment, Argentine was admitted to bail pursuant to the provisions of 18 U.S.C. Sec. 3146(a). On February 10, 1984, however, he neglected to appear at a pretrial hearing connected with the case, and so became a fugitive from justice. He was eventually apprehended some eight months later, and indicted on a single count of willful failure to appear--"bail-jumping," in the vernacular--in violation of 18 U.S.C. Sec. 3150 (repealed).

Argentine chose to represent himself, assisted by court-appointed standby counsel (Rose Duggan). He was tried before a jury on the original indictment, with mixed results. The jury heard evidence from witnesses who described the appellant's prominent participation in promoting the interstate lobster shipment and in deflecting Atwood's inquiries as to the promised payment. It is unnecessary for our purposes to restate the details of this chicanery. It suffices to note that Charles O'Brien (an intermediary for Clamico) testified that the defendant instructed O'Brien to place an order for 20,000 pounds of lobster, and pledged that a check for some $53,000, to cover same, was being sent instanter to a Maine bank.

On May 26, 1981, with lobsters at the ready but the anticipated payment from Clamico not in sight, O'Brien testified that he called Argentine--who blithely assured him that the funds had been transferred and would be arriving "any minute." O'Brien further swore that the defendant telephoned him a second time that day, again affirming that the money was on its way. Based on these avouchments, O'Brien gave Atwood's president, Virginia Larsen, a check drawn on the Maine bank, to hold as a kind of security. (O'Brien's check was a token of good faith only; unless and until Clamico's capital arrived, O'Brien's paper would not be worth the powder and shot.) Larsen, thus mollified, released the lobster shipment.

Mrs. Larsen no longer had the lobsters--and she was not to receive the pelf. She testified that she spoke with Argentine on May 27th, 28th, and 29th, each time receiving some (lame) excuse as to the nonappearance of the funds. And her son, David, apparently spoke with Argentine thereafter, with similar (non)results. O'Brien's votive check proved to be nonnegotiable, inasmuch as no funds were deposited by Argentine or Clamico to back it up. To make a tawdry tale tolerably terse, Atwood never received a nickel for its lobsters. Mrs. Larsen (understandably) cried "foul," the matter went before the grand jury, and a true bill ensued.

The trial lasted less than two days. At the close of the case, the jury retired to consider the seven count indictment in light of the evidence adduced. All of the telephone calls between the appellant, on the one hand, and O'Brien and the two Larsens (mother and son), on the second hand, had been interstate. The indictment charged that the purchase of the crustaceans was, from its inception, a scheme to defraud, and that in furtherance of this cozenage Argentine had perpetrated wire fraud on each of the following dates: May 26, 27, 28, 29, June 3, 4, and 5, all 1981. During its deliberations, however, the jury sent the following note to Judge Porter:

We would like to know what dates Mrs. Larsen talked to Mr. Argentine. Also her son David, dates.

The judge then conferred with the prosecutor, the defendant, and the defendant's standby counsel, in chambers but on the record. After some preliminary discussions, the following request was made by Attorney Duggan:

Well, your Honor, I think we're going to have a [sic] to have a transcript of the testimony. I don't think it's our testimony that we should rely on.

When the judge began to ruminate as to his recollection of how the testimony went, standby counsel pointedly observed:

It was some confusion, your Honor, as to what Mr. O'Brien told her Mr. Argentine had said, so I think we're going to have to have the testimony.

Thus, the lawyer requested--at least twice ²--that the response to the jury's inquiry be accomplished by reading back the pertinent testimony. After expressing a tentative willingness to accommodate this entreaty, however, the trial judge concluded that he would take matters at least partially into his own hands, stating:

I'm going to tell [the jury foreman] the 26th and 28 [sic], and on the 28th I'm just going to have [the court reporter] read that portion, and leave it up to them if there was a call on the 28th as to the son. I'm going to tell them he testified it was two or three days after the transaction.

The protagonists debouched into open court, where Judge Porter told the jurors You wanted to know the dates Mrs. Larsen talked to Mr. Argentine, also her son, David. We've checked the record.

Mrs. Argentine (sic) talked to him on the 27th and the 29th, and in between her testimony about what she said on the 27th and 29, there's a little record that is not real clear, and we're going to have to leave it up to you to determine whether she also--from the reading of the record, as to whether or not there was also a conversation on the 28th. She did talk on the 27th and 29th, and I'm going to ask the reporter to read the part of her testimony in between what she said, and what he said, on those two dates, to see whether--and leave it up to you to decide whether she--they also had a conversation on the 28th. Okay?

The court reporter then read the testimonial excerpt, whereupon the court added:

And as far as her son, he testified he talked to Mr. Argentine two or three days after the transaction.

As soon as the jury retired to resume deliberations, Attorney Duggan voiced her objection. She opined that the procedure which the court had utilized was misleading, and reaffirmed the defense's position that "[t]he entire testimony of Mrs. Larsen should have been read so [the jury] could have made a factual determination." The objection was overruled.

Eventually, verdicts were returned. The jury acquitted the defendant on four of the counts, but found him guilty on counts 2, 3, and 4 (relating to the telephone calls of May 27, 28, and 29, respectively). Subsequent to the rendition of these verdicts but prior to the imposition of sentence, Argentine pled guilty to willful failure to appear at the February 10, 1984 pretrial hearing. When the plea was taken by Judge Carter (who had not presided at the wire fraud trial) on September 23, the government acknowledged that its oral bargain with Argentine on the bailjumping charge included a promise to "stand silent at the time of sentencing and make no recommendation to the Court."

On October 18, 1985, Judge Carter held a sentencing hearing which spanned all of the convictions. At this session, the prosecutor--who was, of course, under no inhibition with respect to his recommendations anent the wire fraud convictions--made telling mention of Argentine's prodigious record of criminal activity. He then pointed out the defendant's failure to have made restitution for Atwood's large loss. The prosecutor concluded that,

[u]nder these circumstances, the government feels and recommends to the Court that a significant prison term is appropriate of at least five years and suggests to the Court that the bailjumping charge on which he also stands convicted could be part of that as part of a concurrent disposition of the case.

Neither the appellant nor his standby counsel protested at the time this reference was made. To the contrary, immediately after the Assistant United States Attorney had finished his remarks, Duggan and Argentine each spoke in mitigation of punishment without mentioning in any way the casual allusion to the bail-jumping charge. When the allocution was completed, Judge Carter sentenced Argentine to concurrent three year prison terms on each of the wire fraud counts and to an...