U.S. v. Coast of Maine Lobster Co., Inc.

• Decision Date: 30 June 1977
• Docket Number: No. 76-1498,76-1498
• Citation: 557 F.2d 905
• Parties: UNITED STATES of America, Appellee, v. COAST OF MAINE LOBSTER CO., INC., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 905

557 F.2d 905

UNITED STATES of America, Appellee, v. COAST OF MAINE LOBSTER CO., INC., Defendants, Appellants.

No. 76-1498.

United States Court of Appeals First Circuit.

June 30, 1977.

Richard E. Valentino, Saco, Me., with whom George F. Wood and Smith, Elliott, Wood & Nelson, Saco, Me., were on brief, for defendants, appellants.

John B. Wlodkowski, Asst. U. S. Atty., Portland, Me., with whom Peter Mills, U. S. Atty., Portland, Me., was on brief, for appellee.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, and MARKEY, ^* Judge.

MARKEY, Judge.

Appellants, Jonathan M. Singer and Coast of Maine Lobster Co., Inc. (CMLC), were convicted of twenty-nine counts of mail and wire fraud in violation of 18 U.S.C. §§ 1341 ¹ and 1343 ² following a six-day

                jury trial.  3  Singer was sentenced to a one year term of imprisonment under each count, the terms to be served concurrently.  CMLC was fined $1,000 under each count, but the fine was remitted in view of CLMC's inability to pay
                

ISSUES

The issues presented on appeal are whether the trial court erred in (1) admitting into evidence a stipulation that appellants had not filed for bankruptcy; (2) denying appellants' motion for a mistrial based on the prosecutor's interruption of defense summation and on the related jury instruction; (3) refusing a requested instruction on the legal theory of the defense; (4) presenting to the jury an altered form of indictment without resubmission to the grand jury; (5) engaging in a colloquy with the jury which coerced or unduly hastened its verdict; and (6) accepting a verdict not supported by the evidence. Finding no basis for any of appellants' assignments of error, we affirm.

BACKGROUND

CMLC was incorporated on April 21, 1972, the articles of incorporation listing Singer as incorporator, clerk, director, and sole stockholder.

During the first weeks of June 1972, appellants conducted an extensive promotional campaign, through advertisements in prominent newspapers, primarily in southern and western portions of the United States, and through brochures mailed to individuals, offering guaranteed delivery of live Maine lobsters and clams at "irresistible prices" which included the cost of air freight. The offer was limited to the month of July 1972; orders and checks had to be received by June 18, 1972, to guarantee July delivery.

Eleven prosecution witnesses testified that they had responded to appellants' offer and mailed an order form accompanied by a check or money order for the purchase price to CMLC, ⁴ paying amounts varying between.$39.95 and $64.45. Instead of lobsters, however, all received a lulling letter or telephone call informing them that their order could not be filled as requested, but the goods could be reordered for delivery at a later date, or the purchase price could be refunded. ⁵

Inability of CMLC to deliver was blamed on an attachment of its bank account and on a theft of its operating capital. Mrs. Ichie Dozier testified that she received a telephone call from CMLC during which she was told that, as a result of the attachment and theft, the corporation would be going into bankruptcy.

Singer's bank accounts, personal and corporate, were attached on June 27, 1972, during a civil action for damages brought by Salt Water Farms, Inc. (SWF), York Harbor, Maine. SWF, also in the mail-order lobster business, based its suit on appellants' possession of several thousand preaddressed labels bearing names of prospective customers and a computer printout listing 40,000 customers' names and addresses, the labels and listing having been reported stolen from SWF in September 1971. The labels and customer list were used in carrying out appellants' promotional campaign.

On the morning of July 1, 1972, the approximate date of the first air delivery of lobsters, Singer reported to the Portland, Maine Police Department that his office safe had been peeled open, and that $23,000 in customers' money had been stolen therefrom. However, Philip McDonough, an evidence Regina Schueler, who worked as a secretary-office clerk for appellants from the end of May 1970 to June 30, 1972, testified that during her employment the office safe was never used and its door was always open. She testified further that her services were terminated at the end of June by Singer because "he hadn't done as well as he had expected to do," notwithstanding that daily orders were averaging $1,000.

technician whose qualifications as an expert in the field were stipulated at trial, testified that he investigated Singer's complaint and that the undisturbed coating of dust on all inside surfaces of the safe evidenced the absence of money or corporate papers in the safe at the time it was peeled open.

Subpoenaed records of the corporation reflected 572 orders received by CMLC. Shippers' receipts documented that lobsters had been sent to 37 individuals. None of the eleven prosecution witnesses received either lobsters or a refund. Four of the eleven had mailed checks to CMLC on or after June 30, 1972, the day prior to the alleged theft. Singer admitted that the monies of these four witnesses could not have been included in the amount allegedly stolen from the safe on July 1, 1972.

(1) The Stipulation That Appellants Had Not Filed For Bankruptcy

Under the general rule, relevancy of evidence is within the sound discretion of the trial judge, whose ruling will not be disturbed unless an abuse is shown. United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975). One element of the violation charged in the present indictment was that appellants "devised . . . (a) scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent . . . representations." The stipulation that neither appellant had filed for bankruptcy was clearly relevant, and thus admissible, in light of Mrs. Dozier's testimony that CMLC had told her it was going into bankruptcy. We find no abuse of discretion in admitting the stipulation.

(2) Interruption of Defense Summation

During a one-and-a-half hour defense summation, the prosecutor twice objected to counsel's "putting himself as a witness." The rule that counsel must refrain from interjecting personal beliefs into the presentation of his case, United States v. Cotter, 425 F.2d 450 (1st Cir. 1970), applies equally to defense counsel and prosecutors, and the prosecutor acted within his rights in raising these objections.

The prosecutor also objected to this statement to the jury by appellants' counsel:

Now, the computer printout list has been right in here in this case so much, has the Defendant ever been charged with the crime for doing that? I haven't heard any evidence to that effect. None. None. And you can bet your life if he had, it would be before you.

The basis for objection was that the statement permitted a false jury inference that the government could have brought charges for other crimes but had not done so.

In response to the objection, the trial judge gave the following instruction:

Well, Ladies and Gentlemen, I must instruct you that certain crimes are within the jurisdiction of the State Courts, certain crimes are within the jurisdiction of the Federal Court. A burglary of the type with which we are here concerned would be a matter which, if a criminal charge would be filed, would be within the jurisdiction of the State Courts in Maine and not the Federal Court.

Appellants' argument that the objection and instruction disparaged or interfered with appellants' defense are unpersuasive. Counsel resumed his summation along the same line pursued prior to the objection, and, as will appear below, appellants' theory of defense was clearly communicated to the jury in the court's general charge. The

trial court has broad discretion in controlling the scope of closing argument, United States v. Sawyer, 143 U.S.App.D.C. 297, 443 F.2d 712 (1971), and the trial judge's clarifying instruction was well within his discretionary powers.

(3) Refusal to Instruct

Upon completion of the charge to the jury, the court refused appellants' requested instruction that "a scheme to defraud is not necessarily to be inferred from business adversity or unprofitable ventures."

Appellants contend that their theory of defense focused on exercise of poor business judgment, as opposed to a specific intent to defraud, and that the court's failure to give the requested instruction effectively precluded appellants from presenting their theory of defense to the jury. We disagree.

As this court pointed out in New England Enterprises, Inc. v. United States, 400 F.2d 58 (1st Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969), a failure to instruct in the precise words sought by counsel is not determinative. The relevant inquiry is whether the instruction as given communicates to the jury the substance of the request.

In the present case, the court's relevant instruction was:

If you are satisfied from the evidence beyond a reasonable doubt that as the Government contends Mr. Singer devised a scheme to defraud persons who could be induced by his promotional campaign to order lobsters from him and to make payment before delivery and that he made use of the mails or interstate telephone communications in execution of that scheme, you should find the defendant guilty. But if, on the other hand, you are not so satisfied or, it goes without saying, you believe the testimony of Mr. Singer that he acted in good faith and was prevented from fulfilling his commitments by the attachment of his bank accounts and burglary of his office, then you should find the defendants not guilty.

The last sentence of the foregoing charge is clearly tantamount to that requested by appellants. Though expressed in terms of "good faith" rather than "business adversity," the particular events on which appellants based their defense, i. e., the attachment and burglary, were specifically mentioned. The...