U.S. v. Bruckman

• Decision Date: 01 March 1989
• Docket Number: No. 88-1035,88-1035
• Citation: 874 F.2d 57
• Parties: UNITED STATES of America, Appellee, v. Neal R. BRUCKMAN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 57

874 F.2d 57

UNITED STATES of America, Appellee, v. Neal R. BRUCKMAN, Defendant, Appellant.

No. 88-1035.

United States Court of Appeals First Circuit.

Heard March 1, 1989.

Decided May 9, 1989.

Jeffrey M. Kaplan with whom Stanley S. Arkin, New York City, was on brief, for defendant, appellant.

Martin F. Healey, Asst. U.S. Atty., with whom Frank L. McNamara, Jr., U.S. Atty., Boston, Mass., was on brief, for U.S.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and FUSTE, ^* District Judge.

FUSTE, District Judge.

Appellant-defendant Neal R. Bruckman ("Bruckman") appeals his conviction after jury verdict on twenty-five counts of mail fraud under Title 18, United States Code, Section 1341. The indictment alleged that Bruckman and others schemed to defraud various persons and entities by inducing them to enter into business combinations with Aetna Properties, Inc. ("Aetna") and Oxford Capital Corp. ("Oxford"). The scheme was carried out in part through the use of fraudulent financial statements for Aetna and Oxford. Such statements were mailed in the course of the intended acquisition of South Shore Vending, Inc. ("South Shore").

Appellant Bruckman raises three issues on appeal: 1) whether there was sufficient evidence to support his conviction under 18 U.S.C. Sec. 1341, for knowingly causing the mailings in furtherance of a scheme to defraud; 2) whether the conviction must be reversed due to violation of the Speedy Trial Act; and 3) whether the trial court erred in denial of his motion to correct or exclude certain victim impact assessment information included in the presentence report. We discuss each of appellant's arguments in turn, and for the reasons set forth below, we affirm Bruckman's conviction, but remand for a clarification of the record pursuant to Fed.R.Crim.P. 32(c)(3)(D).

I. SUFFICIENCY OF THE EVIDENCE

In reviewing Bruckman's claim, we must view the evidence in the light most favorable to the government to determine whether there was sufficient evidence to permit a reasonable jury to find Bruckman guilty of the alleged mail fraud violations. ¹ United States v. Martin, 694 F.2d 885, 889 (1st Cir.1982); United States v. Benmuhar, 658 F.2d 14, 16 (1st Cir.1981), cert. denied 457 U.S. 1117, 102 S.Ct. 2927, 73 L.Ed.2d 1328 (1982); see United States v. Gonzalez Sanchez, 825 F.2d 572, 587 & n. 51 (1st Cir.), cert. denied --- U.S. ----, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987). We look to the inferences to be drawn from the facts in light of the precept that "the jury is free to choose among varying interpretations of the evidence, as long as the interpretation they choose is reasonable." United States v. Delgado Figueroa, 832 F.2d 691, 692-93 (1st Cir.1987) (citations omitted). We find that the evidence reveals that the jury could have reasonably concluded that Bruckman violated the mail fraud statute.

In 1982, individuals associated with Bruckman attempted to purchase South Shore, which was already under the protection of the U.S. Bankruptcy Court, through a reorganization plan under Chapter 11. The purchase of South Shore was to be effected by Oxford, using cash and Aetna stock. Additional Aetna stock was to be used to purchase the claims of South Shore's creditors. In the context of discussions concerning the acquisition, Bruckman and others represented to Dennis Nixon, the owner/debtor in possession of South Shore, that Aetna was a shell company started and principally owned by Bruckman, with stock valued at $3.50 to $4.00 per share. The record illustrates that Bruckman participated in negotiations wherein the inflated value of Aetna was discussed in context of another intended acquisition by Oxford, that of Myimpa Exports, Inc., a creditor of South Shore. The jury also could reasonably have concluded that Bruckman was a consultant or advisor to Oxford and to the individuals representing Oxford, who were pursuing the acquisition of South Shore. Based on the evidence presented, a trier of fact could reasonably infer that Bruckman was responsible for the preparation of the fraudulent Aetna financial statement and that he supplied such document to others to be filed with the Bankruptcy Court in furtherance of the intended acquisition of South Shore. To effect the purchase of South Shore, the fraudulent financial statements of Oxford and Aetna were submitted to the Bankruptcy Court as attachments to the reorganization plan, and these documents were mailed to the 25 creditors of South Shore. such mailings serve as the basis for the 25 counts charged in the indictment.

In order to constitute a violation of the mail fraud statute, a defendant must have knowingly caused the mails to be used in furtherance of a scheme to defraud. See 18 U.S.C. Sec. 1341. The statute does not require that the scheme actually contemplate the use of the mails, but a person is deemed to have "caused" the mails to be used "[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended...." Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-63, 98 L.Ed. 435 (1954); accord, United States v. Delgado Figueroa, 832 F.2d at 696-97 (government not required to show actual intent that mail be used or to violate statute). It is not necessary to prove that the defendant personally executed the mailings, but merely that the defendant "caused the mailing by doing some act from which it is reasonably foreseeable that the mails will be used." United States v. Gonzalez-Sanchez, 825 F.2d at 588 & n. 54-55. The fact that an innocent third party, i.e., the Bankruptcy Court herein, sent the mailings, is sufficient where the use of the mails would foreseeably follow in the ordinary course of business. United States v. Fermin Castillo, 829 F.2d 1194, 1198 (1st Cir.1987); United States v. Benmuhar, 658 F.2d at 16-17. In other words, the causation requirement is met so long as some use of the mails was reasonably to be anticipated in the course of the scheme. United States v. Fermin Castillo, 829 F.2d at 1198.

Bruckman contends that there is insufficient evidence that he had knowledge of the mailings or that such mailings were reasonably foreseeable. Upon a review of the evidence, we disagree. We note that Bruckman was not a naive, unsuspecting participant in the South Shore endeavor, but rather a sophisticated investor and businessman, with a principal role in the overall elaborate scheme to defraud. The jury could reasonably have found that Bruckman had knowledge of the submission of the fraudulent financial statements to the Bankruptcy Court in furtherance of the scheme to defraud. In any event, the question of whether Bruckman had actual knowledge that the Court would issue a mass mailing of the fraudulent statements to creditors is not dispositive as to the question of whether Bruckman knowingly caused the mailings within the meaning of the mail fraud statute. There was ample evidence from which the jury could conclude both that Bruckman participated in the scheme to defraud, and that some use of the mails was to be anticipated in the course of such scheme. The jury could reasonably infer that mailings would be foreseeable in the course of the bankruptcy reorganization proceedings related to the intended acquisition of South Shore by Bruckman and others. Accordingly, there is sufficient evidence from which the jury could have reasonably concluded that Bruckman knowingly caused the mailings which are the subject of the indictment in violation of 18 U.S.C. Sec. 1341.

II. THE SPEEDY TRIAL ACT

The "linchpin" provision of the Speedy Trial Act, 18 U.S.C. Secs. 3161-3174 (1974) (amended 1979), mandates that the accused be brought to trial within seventy days after indictment or initial appearance (Sec. 3161(c)(1)), as enlarged by certain excludable intervals (Sec. 3161(h)), or the court must order dismissal upon motion of the defendant (Sec. 3162(a)(2)). See United States v. Hastings, 847 F.2d 920, 924 (1st Cir.), cert. denied --- U.S. ----, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988). Bruckman urges reversal of his conviction based upon the allegation that eighty-four non-excludable days had passed ² before the commencement of his trial. Because we agree with the government that the thirteen-day contested period of February 17 through March 1, 1987 is excludable, we find Bruckman's conviction was not rendered in violation of the Speedy Trial Act.

This thirteen-day time period is excludable due to a motion for continuance filed by the government on January 23, 1987 and "allowed" by the district court on February 3, 1987. ³ The motion requested a continuance of the trial date from February 17, 1987 to at least March 2, 1987, based upon an accompanying memorandum. In the memorandum, the government submitted that due to the complexity of the case and the number of potential witnesses, a continuance would be justifiable based upon the "ends of justice" (18 U.S.C. Sec. 3161(h)(8)(A)), or the "unavailability of witnessses" (18 U.S.C. Sec. 3161(h)(3)(B)) exceptions to the Speedy Trial Act. The memorandum sets forth an unassailably compelling reason for the requested continuance: the December 29, 1986 death of the sole prosecuting attorney who had been assigned to this complex case during its three-year investigation and preparation. The record reveals that Bruckman's defense counsel at that time joined in the motion for continuance filed by the newly assigned government attorney. ⁴ In any event, Bruckman does not object to the validity of the reasons for the continuance as articulated by the government, nor would such challenge be fruitful. Appellant Bruckman argues that the district court ruling, which merely "allowed" the continuance motion, is insufficient to exclude any days under the Speedy Trial Act due to its failure to adequately explain the factual basis for the continuance or to specifically...