U.S. v. Benmuhar, s. 80-1252

• Decision Date: 08 September 1981
• Docket Number: 80-1266,Nos. 80-1252,s. 80-1252
• Citation: 658 F.2d 14
• Parties: UNITED STATES of America, Appellee, v. Moises BENMUHAR, Defendant, Appellant. UNITED STATES of America, Appellee, v. William Pacheco NIEVES, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 14

658 F.2d 14

UNITED STATES of America, Appellee, v. Moises BENMUHAR, Defendant, Appellant.

UNITED STATES of America, Appellee, v. William Pacheco NIEVES, Defendant, Appellant.

Nos. 80-1252, 80-1266.

United States Court of Appeals, First Circuit.

Argued May 4, 1981.

Decided Sept. 8, 1981.

Harvey B. Nachman, Santurce, P. R., for appellant Moises Benmuhar.

Carlos V. Garcia Gutierrez, Santurce, P. R., for appellant William Pacheco Nieves.

Mervyn Hamburg, Atty., Dept. of Justice, Washington, D. C., with whom Raymond L. Acosta, U. S. Atty., San Juan, P. R., was on brief, for appellee.

Before COFFIN, Chief Judge, GIBSON, Senior Circuit Judge, ^* CAMPBELL, Circuit Judge.

COFFIN, Chief Judge.

Appellants Moises Benmuhar and William Pacheco Nieves appeal from their criminal convictions. Both were indicted on a count that charged that they conspired with Benmuhar's cousin Charles Benmuhar and with Jose Barlia and Jesus Lazo to insure a Puerto Rican company, Delta International, Inc., for over $2 million. The count further charged that the conspiracy planned the successful destruction of Delta's warehouse by arson. The indictment claimed that the conspiracy violated 18 U.S.C. §§ 2, 371, 1341, 1343 and 1952.

Appellant Benmuhar was also indicted, together with Charles Benmuhar and Jose Barlia, on three additional counts of mail fraud, 18 U.S.C. §§ 2 & 1341, and two additional counts of wire fraud, 18 U.S.C. §§ 2 & 1343. Each fraud count related to the same scheme described in the conspiracy count, but each involved a separate interstate communication with the insurance company, whose main offices were in New York and Massachusetts.

Charles Benmuhar was the "core figure" in the arson scheme, but he fled to Venezuela and has not yet been extradited. Jesus Lazo is still a fugitive. Appellants were tried with Jose Barlia. Appellants were convicted on all counts, while Barlia was acquitted.

I. SUFFICING OF EVIDENCE

A. BENMUHAR

Both appellants argued there was insufficient evidence to support their convictions. Viewing the evidence in the light most favorable to the government, United States v. Ciampaglia, 628 F.2d 632, 637 (1st Cir. 1980), we think there was sufficient evidence to permit a reasonable jury to find Benmuhar guilty beyond a reasonable doubt of both the conspiracy and the substantive mail and wire fraud counts.

Evidence that the jury could have believed showed that Benmuhar was an officer and sales manager of Delta International. Benmuhar's cousin Charles was Delta's president. When Delta's accountant informed Charles that Delta would be facing bankruptcy within months, Charles replied that he would prefer to destroy the company's warehouse than go through bankruptcy.

Charles hired contract arsonists to come from Florida. When they arrived, Charles gave them a tour of Delta's premises, pointing out the electrical controls and the sprinkler system, and introduced them to the appellant Benmuhar. The arsonists returned to Florida.

On their trip to Puerto Rico, the arsonists met with Charles and appellant Benmuhar. One arsonist stated that he would "need some potassium chloride in order to be able to set the fire." Charles replied that he would have appellant Benmuhar drive the arsonists to a place to purchase the chemical. Appellant Benmuhar and the arsonists looked in a telephone book for a location for the purchase. Then the three drove there, and appellant Benmuhar walked in and bought the potassium chloride while the others waited in the car. The three then tried to locate some sulfuric acid. They located some after trying two more places. Appellant Benmuhar again purchased the chemical.

Later, all three assembled with Charles and others at the warehouse, poured drinks, and toasted to "the success of what was about to take place." The arsonists then prepared to light the fire while the others, including appellant Benmuhar, gathered by the exit. After igniting the blaze, the arsonists signaled and all left the building, which burned.

Appellant Benmuhar and Charles subsequently met with the claims adjuster for the insurance company with which Delta's fire insurance claim was filed. Both men participated in providing the insurance company with documents it requested during its investigation.

As this recital makes clear, the evidence is sufficient to establish that appellant Benmuhar joined an arson conspiracy, knowing of its essential and illegal character, and committed overt acts in its furtherance. The government may not have established that appellant Benmuhar knew every detail of the conspiracy, but this is not its burden. E. g., United States v. McCarthy, 611 F.2d 220, 222 (8th Cir. 1979), cert. denied, 445 U.S. 930, 100 S.Ct. 1319, 63 L.Ed.2d 764 (1980).

The evidence similarly shows that appellant Benmuhar both directly and vicariously, see Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed.2d 1489 (1946), participated in devising a scheme to defraud in which use of the mails and interstate telephoning would foreseeably follow in the ordinary course of business. That appellant Benmuhar did not personally mail or telephone any communications makes no difference in this situation. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 361-62, 98 L.Ed. 435 (1954); United States v. Calvert, 523 F.2d 895, 903 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Bannister v. United States, 379 F.2d 750, 752-53 (5th Cir. 1967), cert. denied, 390 U.S. 927, 88 S.Ct. 861, 19 L.Ed.2d 988 (1968).

B. PACHECO

We similarly think that the evidence properly supported appellant Pacheco's conspiracy conviction. The proof at trial showed that at the time of the arson Pacheco was acting director of the Criminal Investigations Corps of the Puerto Rican Police, an office containing within it the arson investigation section. Pacheco had a longstanding social relationship with appellant Benmuhar, Charles, and at least one other Delta employee.

Pacheco intervened in the Delta arson investigation in a number of instances. Immediately after the fire, police refused to permit Charles to remove business documents from a fireproof room. Charles then asked an employee to call Pacheco at his home. Pacheco responded by coming to the scene and securing the documents released.

The day after the fire, Pacheco summoned a staff investigator on the case to his office, where Pacheco was meeting with three representatives from Delta. Before these potential arson suspects, Pacheco questioned the investigator about the progress of his work on the case. He responded that the matter was still under investigation. The investigator said at trial that such questioning of an investigator before potential suspects was unprecedented and at odds with the section's policy about public disclosure. He further testified that it was "very unusual" for persons affected by a fire "to immediately come to our office to know what is going on".

Pacheco made other unusual requests for inside information on the Delta investigation. About two months after the fire, he asked another investigator on the case "if (he) had any suspects, if (he) had any information. What would happen. What (he) found, and what (he) had relating to the investigation." Pacheco made three or four such inquiries of this investigator. The investigator stated that "(n)ever, never before" had Pacheco made such requests, nor was he able to recall any subsequent investigations about which Pacheco had so inquired.

Pacheco's superior also had observed Pacheco meeting with Delta employees after the fire. One of the men the superior knew only as "Mr. Benmuhar". The superior then ordered investigating agents to avoid disclosing information on the investigation to anyone, with specified exceptions that did not include Pacheco. One reason for his order was the fact that Pacheco had met with executives of the Delta Company after the fire. The superior testified that it was against policy to disclose information concerning investigations to persons who might be affected by the investigation.

About two months after the fire, Charles bought a new Pontiac car in Miami for about $6000 in cash. None of the sales documents bore Charles' name, although some were signed in the name of William Pacheco Nieves. The government handwriting expert could neither confirm nor exclude the possibility that Pacheco in fact had penned the signatures. The car was shipped to Pacheco in Puerto Rico, where it was registered under Pacheco's name until it was sold to a third party in 1979.

This evidence, although not overwhelming, is sufficient to support Pacheco's conviction. The jury could have found from the testimony that Pacheco attempted to take advantage of his official position to gain otherwise secret information about the progress of the Delta arson investigation. The unusual character of his meeting with potential defendants immediately after a suspected criminal event could create an inference that conspiratorial activity was afoot, and Pacheco's unprecedented interest in ascertaining the status of this investigation manifested in one instance by improper questioning in the presence of potential suspects could support the accompanying inference that Pacheco intended to relay this information directly or indirectly to his coconspirators. Although the government's failure to prove that Pacheco succeeded in obstructing the investigation weakens its case, this does not conclusively rebut the foregoing inferences since the jury could have believed that Pacheco would have done more, but for the evident vigilance and caution of his superior. Finally, Charles' apparently surreptitious purchase of the car in Pacheco's name provides a credible motive for Pacheco's involvement in the conspiracy. The government therefore produced substantial evidence from which the jury could have concluded that Pacheco, a high police official, undertook unusual and...