U.S. v. Bradley

• Decision Date: 23 February 1987
• Docket Number: D,No. 1480,1480
• Citation: 812 F.2d 774
• Parties: UNITED STATES of America, Appellee, v. Harold T. BRADLEY, Defendant-Appellant. ocket 86-1123.
• Court: U.S. Court of Appeals — Second Circuit

Page 774

812 F.2d 774

UNITED STATES of America, Appellee, v. Harold T. BRADLEY, Defendant-Appellant.

No. 1480, Docket 86-1123.

United States Court of Appeals, Second Circuit.

Argued July 15, 1986.

Decided Feb. 23, 1987.

Nanette Dembitz, New York City, for Defendant-Appellant.

Helen Gredd, Asst. U.S. Atty. (Bruce A. Green, Asst. U.S. Atty., and Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City, of counsel), for Appellee.

Before WINTER and MAHONEY, Circuit Judges, and CABRANES, District Judge. ^*

JOSE A. CABRANES, District Judge:

Harold T. Bradley was found guilty after a jury trial before Judge Robert J. Ward in the United States District Court for the Southern District of New York on one count of making false statements in connection with a loan application to a federally insured bank in violation of 18 U.S.C. Sec. 1014 and one count of bank larceny in violation of 18 U.S.C. Sec. 2113(b). He was sentenced by Judge Kevin Thomas Duffy to two years on the first count and ten years on the second, the sentences to run concurrently. ¹ On appeal Bradley argues (1) that Judge Ward erred in his charge to the jury on 18 U.S.C. Sec. 2113(b) by failing to require a finding by the jury that the bank actually relied upon his false statements in making the loan; (2) that 18 U.S.C. Sec. 2113(b) is not applicable to a taking of bank funds by a person who made false statements on a loan application in order to receive such funds; (3) that even if Section 2113(b) may be applied to Bradley's conduct, he cannot be charged under both statutes because Section 1014 is a lesser included offense of Section 2113(b); (4) that Congress intended that in the circumstances presented only Section 1014 be applied; (5) that Judge Duffy's comments regarding the leniency of the judges who had previously sentenced Bradley and the effect of Bradley's crimes on his victims reflected reliance upon improper sentencing considerations; and (6) that Judge Duffy did not make findings or determinations with respect to controverted items in the presentence report prior to imposing sentence as prescribed by Fed.R.Crim.P. 32(c)(3)(D).

We affirm Bradley's conviction, and we find no error in Judge Duffy's comments on the defendant's prior record and on the effect of his crimes; however, we remand to Judge Duffy for the entry of findings, or disclaimers of reliance, upon disputed items in the presentence report pursuant to Fed.R.Crim.P. 32(c)(3)(D).

BACKGROUND

The facts proved at trial and largely undisputed on appeal may be briefly summarized.

On May 23, 1984, Bradley telephoned the office of Alfred Brittain, the Chairman of the Board of Directors of Bankers Trust Company ("Bankers Trust"), a federally insured bank in New York City, and spoke to Brittain's secretary, Christine Powell. Bradley told her that he was relocating from the West Coast and wanted to open a personal account and obtain a loan for the purchase of real estate in New Jersey. In the course of the conversation, Bradley suggested to Powell that he was acquainted with John Brooks, a member of the board of directors of Bankers Trust. Powell reported Bradley's telephone call to the Private Clients Lending Group, a unit of Bankers Trust which specializes in loans to high-income individuals.

As a result of that referral, Robert Davis, a vice president of Bankers Trust assigned to the Private Clients Lending Group, telephoned Bradley and arranged to meet with him on May 29, 1984. The meeting took place at a Park Avenue location which Bradley identified as his office. At that meeting Bradley informed Davis, as he had informed Powell, that he had just relocated from California and was seeking a loan for the purchase of real estate in New Jersey. Bradley also told Davis that he was currently living on a "family compound" in New Jersey, but that he wished to buy his own home on the Jersey shore and would require a loan of $85,000 in order to do so.

When questioned by Davis about his financial status, Bradley stated that he had a net worth of at least $2 million, and that his brother would repay him a substantial amount of money in four to six months, thus enabling him to repay the Bankers Trust loan. In response to an inquiry from Davis about whether it had been Alfred Brittain who had recommended Bradley to Bankers Trust, Bradley replied in the affirmative At the close of the meeting, Bradley signed a demand note and account signature cards, and was given a blank financial statement with the request that he complete it and submit it to the bank. Instead of returning the financial statement, a day or two later Bradley submitted to Davis a balance sheet listing assets of $2,805,700 and liabilities of $34,430, for a total net worth of $2,771,270. On May 31, 1984, Davis approved the loan of $85,000, crediting that amount to the newly-opened Bankers Trust checking account in Bradley's name.

stating that "Al and I go back a long way together."

This loan provided the only funds ever deposited in the checking account. Bradley wrote checks totalling $32,221.10 on the checking account--including $18,000 in checks made out to "cash"--over a period of several months before the bank closed the account. He made no repayments either before or after the issuance of the indictment on November 1, 1985.

At trial the Government presented evidence to show that Bradley had never met Alfred Brittain; that his only brother had never borrowed any money from him; that the office at which Bradley had met Davis had been occupied by Bradley two weeks earlier with no down payment of rent; that the only rental payments Bradley made in connection with that office were with two checks drawn on the Bankers Trust account in early June 1984; and that Bradley subsequently abandoned the office space, leaving behind accrued rental charges totaling $11,715.

In addition, evidence was presented that in April 1983, thirteen months before Bradley's meeting with Davis, Bradley filed a petition in bankruptcy in the United States Bankruptcy Court for the District of New Jersey, in which he had stated that his liabilities exceeded his assets by more than $100,000, and that in May 1983 Bradley filed a supplemental bankruptcy document providing a twenty-four page list of judgments that had been entered against him and his wife. The Government also offered sworn testimony given by Bradley in the Bankruptcy Court on December 6, 1984, stating that as of October 1983, after not having worked for two years, he was starting from "ground zero" financially, and that for the next six or seven months--i.e., through at least April 1984--he had had no income whatsoever. Immediately before resting, the Government offered a stipulation between the parties indicating that intent and knowledge were not at issue in the case.

At sentencing, counsel for Bradley challenged several assertions in the presentence report: that Bradley had been charged with two earlier offenses and convicted of one of them (counsel did not challenge a number of other convictions); that he had not graduated from college; that he had abused his son; and that he liked to dress up in women's clothing.

DISCUSSION

I.

The Jury Instruction on 18 U.S.C. Sec. 2113(b)

Title 18, U.S.C. Sec. 2113(b) prohibits the "tak[ing] and carry[ing] away, with intent to steal or purloin, [of] any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, management, or possession of any bank." The statute is not limited to common-law larceny but also includes obtaining money under false pretenses. Bell v. United States, 462 U.S. 356, 361, 103 S.Ct. 2398, 2401, 76 L.Ed.2d 638 (1982) ("Bell ").

The trial judge instructed the jury that the elements of the offense were (1) that the bank was federally insured; (2) that the defendant took and carried away money that had been in possession of the bank; and (3) that the defendant took the money intentionally, knowing that he was not entitled to it and with an intent to steal it. He also explained to the jury that the statutory phrase "steal and purloin" could include "obtaining money under false pretenses." The parties had stipulated that the bank was federally insured and that the defendant had the requisite criminal intent, and the trial judge also instructed the jury On appeal, Bradley argues for the first time that Judge Ward committed "a grave error of law" in failing to charge that he could be found guilty only if the bank relied on his false statements in turning over funds to him. Even if we assume for the argument that 18 U.S.C. Sec. 2113(b) does require proof that the bank relied on Bradley's false statements in extending him credit, defense counsel at trial neither objected to the charge that the statutory phrase "steal and purloin" includes obtaining money by false pretenses nor requested an instruction incorporating the reliance element. ² See Fed.R.Crim.P. 30. Accordingly, Bradley is barred from raising the issue on appeal unless Judge Ward can be said to have committed "plain error" in his instructions. Fed.R.Crim.P. 52(b). "Plain error" is error going "to the very essence of the case," United States v. Calfon, 607 F.2d 29, 31 (2d Cir.1979) (per curiam) (citation omitted), cert. denied, 444 U.S. 1085, 100 S.Ct. 1044, 62 L.Ed.2d 771 (1980), and "so 'plain' the trial judge and prosecutor were derelict in countenancing it, even absent the defendant's timely assistance in detecting it." United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). The labeling of a trial judge's instruction as "plain error" is, of course, "a power to be exercised most sparingly." United States v. Wilkinson, 754 F.2d 1427, 1432 (2d Cir.) (citation omitted), cert. denied sub nom. Shipp v. United States, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985).

that "if you find that the defendant knowingly made false statements to the bank in connection with his loan application for the...