U.S. v. Connery

• Decision Date: 13 March 1989
• Docket Number: No. 87-3508,87-3508
• Citation: 867 F.2d 929
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Edmund M. CONNERY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 929

867 F.2d 929

UNITED STATES of America, Plaintiff-Appellant, v. Edmund M. CONNERY, Defendant-Appellee.

No. 87-3508.

United States Court of Appeals Sixth Circuit.

Argued May 3, 1988.

Decided Feb. 10, 1989.

Rehearing Denied March 13, 1989.

James C. Lynch, Asst. U.S. Atty. (argued), Cleveland, Ohio, for plaintiff-appellant.

Edmund M. Connery, Hastings-On-Hudson, N.Y., pro se.

J. Dean Carro, Akron, Ohio, Michael V. Demczyk (argued), Canton, Ohio, for defendant-appellee.

Before KRUPANSKY and NELSON, Circuit Judges, and HACKETT, District Judge. ^*

HACKETT, District Judge.

The United States appeals from the judgment of the United States District Court, Northern District of Ohio, granting defendant's motion for acquittal pursuant to F.R.Crim.P. 29(c). Appellant contends that when the evidence is viewed in the light most favorable to the government, a reasonable jury could have found defendant Edmund M. Connery guilty beyond a reasonable doubt. After a thorough review of the voluminous record in this case, we must find that the jury had sufficient evidence to sustain its verdict. We therefore reverse the judgment of the district court and reinstate the jury's verdict.

PROCEDURAL BACKGROUND

On January 28, 1986, a nine-count indictment was filed against Daniel H. Overmyer and Edmund M. Connery. Overmyer was named in nine counts and charged with six counts of bankruptcy fraud, 18 U.S.C. Sec. 152, two counts of conspiracy to commit bankruptcy fraud, 18 U.S.C. Sec. 371, and one count of mail fraud, 18 U.S.C. Sec. 1341. Connery was charged with five counts of aiding and abetting, 18 U.S.C. Secs. 2 and 152, and one count of conspiracy, 18 U.S.C. Sec. 371.

Prior to trial, the district court granted Connery's motion for severance. The district court also granted the government's motion to dismiss Counts III, IV and V of the indictment.

On February 3, 1987, the case against Connery proceeded to trial on Counts I, II and IX. Prior to submission of the case to the jury, the district court granted Connery's motion for acquittal on Count IX. On February 24, 1987, the jury returned a verdict of guilty on Count I, aiding and abetting the filing of a false bankruptcy claim and not guilty on Count II. Connery then moved for a judgment of acquittal on Count I pursuant to F.R.Crim.P. 29(c) which the district court granted.

THE TEST FOR REVIEWING A RULE 29(c) MOTION

It is well settled that the test to be applied by a trial court in connection with a defendant's motion for acquittal pursuant to Rule 29 of Federal Rules of Criminal Procedure is taking the evidence and inferences most favorably to the government, if there is such evidence therefrom to conclude that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); York v. Tate, 858 F.2d 322 (6th Cir.1988); United States v. Conti, 339 F.2d 10 (6th Cir.1964). The Supreme Court has observed that the granting of a motion of acquittal "... will be confined to cases where the prosecution's failure is clear." Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). See, Blalack v. United States, 154 F.2d 591 (6th Cir.), cert. denied, 329 U.S. 738, 67 S.Ct. 67, 91 L.Ed. 637 (1946).

An appellate court, in reviewing a trial court's decision regarding a Rule 29 motion, applies the same principles to the record it has before it. United States v. Gibson, 675 F.2d 825 (6th Cir.1981). Other circuits have indicated the use of the same test following the trial court's reversal of a guilty verdict pursuant to Rule 29(c). United States v. Martinez, 763 F.2d 1297 (11th Cir.1985); United States v. Hazeem, 679 F.2d 770 (9th Cir.1982); United States v. Brandon, 633 F.2d 773 (9th Cir.1980); United States v. Beck, 615 F.2d 441 (7th Cir.1980); United States v. Varkonyi, 611 F.2d 84 (5th Cir.1980); United States v. Dreitzler, 577 F.2d 539 (9th Cir.1978).

The 11th Circuit in the Martinez case, supra, stated the test for review of a verdict overturned by a judgment of acquittal as follows:

On a motion for judgment of acquittal, the court must view the evidence in the light most favorable to the verdict and, under that light, determine whether the evidence is sufficient to support the verdict. Thus, on this motion, the court assumes the truth of the evidence offered by the prosecution. (Citation omitted).

United States v. Martinez, supra at 1312.

The filing of a false bankruptcy claim is prohibited by 18 U.S.C. Sec. 152 which provides, in pertinent part:

Whoever knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, personally, or by agent, proxy, or attorney, or as agent, proxy, or attorney, ... shall be fined not more than $5,000 or imprisoned not more than five years, or both.

18 U.S.C. Sec. 2 provides:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

THE EVIDENCE BEFORE THE JURY

In its case-in-chief on Count I of the indictment, the government argued that the proof of claim filed in the Overmyer Telecasting bankruptcy was false in three respects:

First, the sum contained a charge of $50,000 per month beginning in January, 1981, for lease payments on equipment not yet installed.

Two, the sum contained a charge in the amount of $249,116.18 for installation charges for new equipment not installed as of February 6th, 1981.

And third, as of February 6, 1981, Telecasting had overpaid Hadar for any leasing obligations it might have had.

In support of these allegations substantially the same evidence presented in United States v. Overmyer, No. CR 86-13, slip op. (N.D.Ohio April 22, 1987) was introduced to establish the underlying scheme. In addition, the following evidence was introduced in support of the government's claim that Connery aided and abetted Overmyer.

Connery is an attorney licensed to practice in the state of New York. He also has a background in accounting. Connery began working for Overmyer in 1964. At that time, his principal duties for Overmyer involved real estate transactions and some general corporate work.

Connery worked for D.H. Overmyer Co., Inc. until it filed under Chapter 11 in the bankruptcy court, at which time he was placed on the payroll of Overmyer Distribution Services. Connery later was placed on the payroll of Intermodal Systems Leasing Inc. (ISLI). Daniel H. Overmyer controlled all of these companies.

Connery left Overmyer's employ in December, 1975, to work for Rockwood Computer Corporation, a non-Overmyer affiliated company. Connery rejoined Overmyer in August, 1977, and did work for Overmyer's various Three Park Avenue companies and for Overmyer personally. He was paid from the payroll of Jeeb's Distribution Services, later of AGG Projects Inc. (AGG) and then of Omega. Connery was head in-house counsel. His office adjoined Overmyer's and the secretarys for Overmyer and Connery shared a reception area. Connery was responsible for the preparation of the corporate minutes for all of Overmyer's companies except R.T. Systems, including Hadar's minutes from 1977 through the time of the bankruptcy proceedings. These bankruptcy proceedings formed the basis for the criminal charges in this case.

In testimony given during related bankruptcy proceedings and read into the record in the present trial, Connery stated that he was aware of the following facts: that there was no written obligation to support Hadar's $400,000 charge for pre-paid rent in the proof of claim; that despite the fact that Telecasting was paying rent for equipment to Hadar, Hadar was not paying its vendors; and, that Hadar collected sales taxes from Telecasting, but never remitted any sales taxes to the state. He also indicated that he represented both Hadar and Telecasting in the One Hundred East Corporation transaction for the transmitter equipment.

Prior testimony of Connery was introduced at trial in which he admitted that he prepared and circulated a board resolution in the last week of March, 1981, purporting to charge Telecasting $50,000 a month rent for the equipment. The resolution had been backdated to bear the date of January 5, 1981. The resolution was signed by Overmyer, Shirley C. Overmyer, David Raible and William Chi in their capacity as Telecasting's board of directors. They signed the resolution even though they had resigned as directors on February 19, 1981, and, therefore, had no authority to act as directors.

Connery also testified that in his role in supervising and giving instructions to counsel for Hadar in the adversary proceeding in the bankruptcy court in Ohio, he instructed counsel to advise the court that Overmyer was in no way connected with, or in control of, Hadar.

David Raible, who at the time of Connery's trial was president of D.H. Overmyer Co. and who had been employed by various Overmyer related entities since 1970, testified that it was Connery who drafted the format for the service contracts which Overmyer had his corporations execute with Hadar in order to transfer funds from Hadar into other Overmyer entities such as AGG, Omega and Jeebs. Raible also testified that it was Connery who actually prepared the proof of claim in question.

E. Thomas Meisner, an accountant for Overmyer, testified that from December, 1978 to August, 1979, Telecasting overpaid Hadar by $269,778. This overpayment, plus other overpayments, created a debit balance on Hadar's books in the amount of $626,003.47. This amount was owed to Telecasting as a result of overpayments. Meisner received...