U.S. v. Butler

• Decision Date: 07 July 1987
• Docket Number: Nos. 86-3041,86-3051 and 86-3052,86-3047,86-3048,s. 86-3041
• Citation: 822 F.2d 1191,262 U.S.App.D.C. 129
• Parties: UNITED STATES of America v. Roland T. BUTLER, Appellant. UNITED STATES of America v. Norman C. TILLETTE, Appellant. UNITED STATES of America v. Augustine F. BARQUIN, Appellant. UNITED STATES of America v. C. Jimmie VACCARO, Jr., Appellant. UNITED STATES of America v. Charles L. CLAY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1191

822 F.2d 1191

262 U.S.App.D.C. 129

UNITED STATES of America v. Roland T. BUTLER, Appellant.

UNITED STATES of America v. Norman C. TILLETTE, Appellant.

UNITED STATES of America v. Augustine F. BARQUIN, Appellant.

UNITED STATES of America v. C. Jimmie VACCARO, Jr., Appellant.

UNITED STATES of America v. Charles L. CLAY, Appellant.

Nos. 86-3041, 86-3047, 86-3048, 86-3051 and 86-3052.

United States Court of Appeals District of Columbia Circuit.

Argued May 18, 1987.

Decided July 7, 1987.

Appeals from the United States District Court for the District of Columbia (Criminal Nos. 85-00404-04, 01, 03, 08 and 05).

James Sottile IV (Appointed by this Court), with whom Thomas W. White was on the brief for appellants, C. Jimmie Vaccaro, Jr. and Augustine F. Barquin in Nos. 86-3048 and 86-3051.

Deborah Moen (Student Counsel), with whom Steven H. Goldblatt (Appointed by this Court), Samuel Dash and Ellen Pearlman were on the brief for appellant, Norman C. Tillette in No. 86-3047.

Thomas Lumbard (Appointed by this Court) for appellants, Roland T. Butler and Charles L. Clay in Nos. 86-3041 and 86-3052. Frederic R. Kellogg also entered an appearance for appellants.

Mark D. Rasch, Atty., Dept. of Justice, with whom Joseph E. diGenova, U.S. Atty., was on the brief for appellee. Michael W. Farrell, Asst. U.S. Atty., also entered an appearance for appellee.

Before BORK and STARR, Circuit Judges, and EDWARD D. RE, ^* Chief judge.

Opinion of the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

This case arises out of a fraudulent scheme involving mortgage loans that caused many borrowers to lose their homes and to incur ruinous debts. The defendants who appeal their convictions--Augustine F. Barquin, Roland T. Butler, Charles E.L. Clay, Norman C. Tillette, and C. Jimmie Vaccaro--were all associated with the Nationwide Mortgage Company of Falls Church, Virginia. Tillette was the owner and president of the company, Vaccaro acted as the settlement attorney on many of the loans, and Barquin, Butler, and Clay were brokers who solicited customers to obtain mortgage loans from the company.

Nationwide solicited homeowners to borrow money, and, in order to evade the usury laws, got the borrowers to state that the loans were for business purposes, though typically the loans had nothing to do with businesses of any kind. The brokers induced borrowers to sign one-year, interest-only notes that required large back-end payments to be made at the end of the year. The most significant inducements were frequent promises that refinancing would be made available, though typically it was not. On the contrary, borrowers who sought help or advice on their loans usually found that the loan brokers had become very elusive and were difficult if not impossible to reach either at the company or at home. By these and other means, Nationwide ended up charging borrowers an interest rate that was three or four times larger than the 15% limit that the local usury laws prescribed during this period.

These five defendants were charged with conspiracy to violate the Truth in Lending Act, see 15 U.S.C. Sec. 1611 (1982); 18 U.S.C. Sec. 371 (1982), and with various charges of violating, conspiring to violate, or aiding and abetting violations of the Travel Act, see 18 U.S.C. Sec. 2314 (1982), by transporting individuals in interstate commerce in furtherance of a scheme to defraud. A jury convicted each defendant on the charges under the Truth in Lending Act and on several of the charges under the Travel Act. Defendants raise several claims of error on appeal. We affirm the convictions.

I.

Two of the defendants advance procedural objections. Butler argues that the district court erred in refusing to grant his motion for a bill of particulars. Under the Federal Rules of Criminal Procedure, a court "may direct the filing of a bill of particulars." Fed.R.Crim.P. 7(f). A bill of particulars can be used to ensure that the charges brought against a defendant are stated with enough precision to allow the defendant to understand the charges, to prepare a defense, and perhaps also to be protected against retrial on the same charges. See, e.g., United States v. Gorel, 622 F.2d 100, 104 (5th Cir.1979), cert. denied, 445 U.S. 943, 100 S.Ct. 1340, 63 L.Ed.2d 777 (1980). Yet if the indictment is sufficiently specific, or if the requested information is available in some other form, then a bill of particulars is not required.

Butler sought a bill to require the government to state the approximate times and the places at which Butler entered and exited the alleged conspiracy. The indictment did not contain this information, though it did recount the dates of a number of overt acts by which it is alleged that Butler participated in the conspiracy. See Indictment at 10-11. In its response to the motion for a bill of particulars, moreover, the government stated that Butler made loans for Nationwide between March, 1981, and February, 1982, and continued his employment with Nationwide until the end of 1982. See Government's Response to Defendant Butler's Motion for Bill of Particulars at 2. Since the alleged conspiracy revolved around the making of these loans, this response furnished essentially the information that Butler had requested. More specific information about the times and places that Butler participated in the alleged conspiracy was not required by law. See, e.g., United States v. Pollack, 534 F.2d 964, 970 (D.C.Cir.), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976). In any event, the determination of whether a bill of particulars is necessary rests within the sound discretion of the trial court, see id., and we cannot say that the district court abused its discretion here.

Barquin contends that the district court erred by failing to grant his motion for severance. All the defendants in this case were tried jointly, and Barquin claims that he should have been tried separately because the evidence against the other defendants was "far more damaging" than the evidence against him. United States v. Sampol, 636 F.2d 621, 645 (D.C.Cir.1980).

Barquin's contention has no merit. The trial judge is given great latitude to balance the institutional benefits that joint trials confer by preserving judicial and prosecutorial resources against the possibility that a defendant will be erroneously convicted because the cumulation of the evidence against all the defendants may lead the jury to be either confused or prejudiced in assessing the evidence against that particular defendant. See, e.g., United States v. Hines, 455 F.2d 1317, 1334 (D.C.Cir.), cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972). Instructions to the jury to consider the evidence separately against each defendant, such as were given in this case, provide significant safeguards against the dangers of prejudice. See United States v. Slade, 627 F.2d 293, 309 (D.C.Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980). Barquin's claim that a great disparity existed between the evidence against him and the evidence against the other defendants is untrue. He notes that he was named in only 4 of the 17 counts and in only 8 of the 49 overt acts alleged to be in furtherance of the conspiracy. These numbers seem to represent small fractions only because several defendants were charged together in the indictment. In fact, the numbers demonstrate no less involvement by Barquin than by any of the other brokers charged in the indictment. Both Tillette and Vaccaro were charged with more counts simply because their roles in the conspiracy were somewhat broader than those played by the individual loan brokers. Barquin's contention falls well short of demonstrating any abuse of discretion by the district court. ¹

II.

A.

The next claim of error, and the only one joined by all the defendants on appeal, presents a more difficult issue. On the fifth day of the trial, one of the jurors told a deputy marshal that she had a contact with one of the defendants in the courthouse elevator. The juror stated that the defendant, Tillette, approached her and told her that she was a wonderful lady, that he had met a lot of people whom he had tried to help by giving them a check, and that those people had now come to court as witnesses and were causing him trouble. Tr. at 898-99. The juror apparently said nothing and walked away. Tillette denied that any such conversation had occurred.

When the trial judge was informed of the improper contact, he immediately called the juror in and interviewed her in the presence of counsel. The judge had the juror describe the encounter, then asked her if it would have any bearing on her ability to serve as a juror and to render a fair and impartial verdict. She replied that it would not. He also cautioned her not to discuss the matter with the other jurors. She assured the judge that she would not do so. She was then dismissed. The judge did not ask her if she had already mentioned the matter to the other jurors. After the juror had returned to the jury room, one of the counsel asked whether she might have already talked to the other jurors about the improper contact. The deputy marshal, however, firmly stated that she had not done so. The judge then questioned Tillette and another defendant about the matter. See Tr. at 896-903.

Later in the trial, the government's counsel raised the matter again, asking that the juror be excused. The judge considered recalling the juror for further questioning about whether she had discussed the improper contact with the other jurors, but decided not to do so after reiterating the deputy marshal's representation and voicing concern that another interview might only cause the juror to magnify the significance of the contact beyond its true importance. He also decided not to dismiss the juror at that point, which would have required him to use up one of the four available alternates, but invited counse...