U.S. v. Concemi, s. 91-1241

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before TORRUELLA; TORRUELLA
• Citation: 957 F.2d 942
• Parties: UNITED STATES of America, Appellee, v. Samuel J. CONCEMI, Defendant, Appellant. UNITED STATES of America, Appellee, v. Walter RIBECK, Defendant, Appellant. . Heard
• Docket Number: 91-1249,Nos. 91-1241,s. 91-1241
• Decision Date: 11 September 1991

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957 F.2d 942 UNITED STATES of America, Appellee,
v.
Samuel J. CONCEMI, Defendant, Appellant.
UNITED STATES of America, Appellee,
v.
Walter RIBECK, Defendant, Appellant. Nos. 91-1241, 91-1249. United States Court of Appeals,
First Circuit. Heard Sept. 11, 1991.
Decided March 4, 1992.
As Amended March 16, 1992.

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James E. Carroll, with whom Harvey Weiner, Maureen Mulligan and Peabody & Arnold, Boston, Mass., were on brief for defendant, appellant Samuel J. Concemi.

Reginald L. Marden, Andover, Mass., for defendant, appellant Walter Ribeck.

Margaret R. Hinkle, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for appellee.

Before TORRUELLA, Circuit Judge, TIMBERS, ^* Senior Circuit Judge, and CYR, Circuit Judge.

TORRUELLA, Circuit Judge.

On October 2, 1990, a federal grand jury returned a 35 Count indictment charging defendants/appellants, Samuel J. Concemi ("Concemi"), Walter Ribeck ("Ribeck") and non-appellant Patricia A. Hajjar ("Hajjar"), with one count of conspiracy in violation of 18 U.S.C. § 371, 17 counts of bank fraud in violation of 18 U.S.C. § 1344, 17 counts of making false statements to a federally insured bank in violation of 18 U.S.C. § 1014, all in violation of 18 U.S.C. § 2, aiding and abetting bank fraud and false statements. The jury returned verdicts of guilty on all counts on December 20, 1990. Concemi was sentenced to 36 months of incarceration to be followed by two years of supervised release and ordered to pay restitution and a fine. Ribeck was sentenced to 24 months of incarceration to be followed by two years of supervised release and ordered to pay restitution and a fine.

Appellants raise numerous issues as grounds for reversal. They challenge the propriety of the district court's sequestering the jury after informing it of allegedly prejudicial information; the district court's refusal to admit certain evidence, allegedly denying appellants the right to effectively cross-examine and impeach one of the government's witnesses; the district court's requiring Concemi to answer a question on cross-examination, allegedly in violation of his Fifth Amendment privilege; the district court's alleged unwarranted instructions to the jury regarding a government witness' testimony; the propriety of the trial court's partial denial of a subpoena duces tecum; the sufficiency of the evidence and the district court's refusal to grant a continuance at sentencing so that appellants could make a proof of value of loss. We affirm.

FACTS/BACKGROUND

The indictments stemmed from seventeen real estate transactions involving ComFed Savings Bank ("ComFed"), a federally-chartered bank insured by the Federal Savings and Loan Insurance Corporation. Specifically, it was alleged that Concemi, as the closing attorney, Ribeck, as the real estate broker and Hajjar, as a ComFed employee, ¹ executed and concealed secondary financing agreements on certain

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"Door Opener" loans, ² in violation of ComFed's underwriting policies.

Concemi's and Ribeck's trial lasted fourteen days. During the trial certain events transpired, some fortuitous, which defendants claim deprived them of their right to a fair trial.

DISCUSSION I

Prejudicial Publicity

On the morning of Friday, December 14, 1990, the tenth day of trial, the Federal Deposit Insurance Corporation ("FDIC") seized ComFed. By this time in the trial, the jury had heard testimony from numerous government witnesses and reviewed a myriad of government exhibits, at times, involving complex real estate and banking transactions. Defendant Concemi was to take the stand that same day. The government informed both defense counsel and the district court of the FDIC takeover of ComFed. Defense counsel for Ribeck requested that upon termination of the government's presentation of its case the district court grant a recess until Monday, so that more could be learned about the ComFed takeover and whether it might prejudice the defendants' right to a fair trial. Concemi's counsel joined in the request. The district court suggested sequestering the jury, but defense counsel refused. Finally, the district judge stated, "I am going to keep going today. That is all I am going to say. Do you want me to tell the jury the bank was taken over by the F.D.I.C. and they are not to read the media or listen to it?" (Tr. Vol. 10 p. 8). Defense counsel and the government prosecutor consented to the district court's suggestion. The following instruction was then given to the jury:

Members of the jury, I want to give you an instruction: Today at 10:30 this morning the F.D.I.C. took over ComFed. Now, that will be in the news tonight and tomorrow. So I am instructing you not to read anything that is in the papers and not to watch TV or listen to a radio discussion of the significance of the F.D.I.C. taking over ComFed. And I want you to honor that instruction. It is very important to the people in this case.

(Tr. Vol. 10 p. 9). As scheduled, Concemi's testimony began on Friday, December 14, 1990. Furthermore, the jury was sequestered later that afternoon until the end of the trial. We are to determine whether and to what extent the defendants' right to a fair trial might have been prejudiced by informing the jury of the ComFed takeover by the FDIC.

The district court's decision whether or not to sequester the jury, or how to instruct the jury, falls within the court's broad supervisory discretion. See Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 2555, 45 L.Ed.2d 593 (1975); United States v. Porcaro, 648 F.2d 753, 755 (1st Cir.1981) (citing Mastrian v. McManus, 554 F.2d 813, 818 (8th Cir.1977), cert. denied, 433 U.S. 913, 97 S.Ct. 2985, 53 L.Ed.2d 1099 (1977)). These decisions will be affirmed absent an abuse of discretion. However, "[i]n the absence of a timely objection our review is limited to examining the record for plain error ..." United States v. Munson, 819 F.2d 337, 340 (1st Cir.1987). Under the plain error doctrine, we will "correct only 'particularly egregious errors' ... that 'seriously affect the fairness, integrity or public reputation of judicial proceedings.' " United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)). In the present case, there was no objection by either defense counsel to informing the jury of the alleged prejudicial information. Defense counsel

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did express concern to publishing the FDIC takeover to the jury, but ultimately consented to the district court's instructions. Thus, we must review the record for plain error.

This Court has never reviewed a case where the alleged prejudicial information was published to the jury by the district court itself and then the jury sequestered in order to shield it from prejudice that might result from that same information. We have, however, discussed the proper procedures that a district court should take when potentially prejudicial information may have reached the jury. Although not dispositive on the issue presented here, those cases are instructive.

In United States v. Perrotta, 553 F.2d 247 (1st Cir.1977), we adopted the standard annunciated in Margoles v. United States, 407 F.2d 727 (7th Cir.), cert. denied, 396 U.S. 833, 90 S.Ct. 89, 24 L.Ed.2d 84 (1969):

[W]here prejudicial publicity is brought to the court's attention during a trial ... the court must ascertain if any jurors who had been exposed to such publicity had read or heard the same. Such jurors who respond affirmatively must then be examined, individually and outside the presence of the other jurors, to determine the effect of the publicity. However, if no juror indicates, upon inquiry made to the jury collectively, that he has read or heard any of the publicity in question, the judge is not required to proceed further.

Perrotta, 553 F.2d at 250, (quoting Margoles, 407 F.2d at 735). Of course the district court must first determine whether or not the information is actually prejudicial. ³ Porcaro, 648 F.2d at 757 (citing Perrotta, 553 F.2d at 249-50). Generally, it is incumbent upon counsel to make a timely request that the jurors be polled. However, "there may be cases in which the likelihood of prejudice is so great as to require the trial judge to question the jurors sua sponte ..." Id., (citing Perrotta, 553 F.2d at 251 & n. 9; United States v. Beitscher, 467 F.2d 269, 274 (10th Cir.1972)).

In the case at bar, it is highly unlikely that the jury had any knowledge of the ComFed takeover which took place on the morning of December 14, 1990. ⁴ Thus this case differs from those where the jury already has been or may have been exposed to potentially prejudicial publicity. However, the same principles apply here. In order to assure that defendants are afforded their due process right to a fair trial, the district court should do everything within its authority to insure that prejudicial publicity not reach the jury.

If upon learning of potentially prejudicial information, the district court thinks that sequestration is warranted, the jury should be sequestered. ⁵ However such extreme measures are not always necessary. The district court still has the option of instructing the jury, as it did here, to avoid the publicity, without disclosing its content, in whatever manner the particular circumstances dictate. Here the district court, after conferring with and getting consent from defense counsel, instructed the jury to disregard any news of the ComFed takeover. Appellants cannot now seek reversal for the district court's instruction, of which they were the proponents. Neither can they show that the district court's actions constituted error much less plain error.

II

The Prospectus

During the course of the trial, defendants were denied the opportunity to admit

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