U.S. v. Duncan
| Decision Date | 02 December 1994 |
| Docket Number | No. 1444,D,1444 |
| Citation | 42 F.3d 97 |
| Parties | UNITED STATES of America, Appellee, v. Vinal S. DUNCAN, Defendant-Appellant. ocket 93-1402. Second Circuit |
| Court | U.S. Court of Appeals — Second Circuit |
David T. Grudberg, New Haven, CT (Ira B. Grudberg, Jacobs, Grudberg, Belt & Dow, P.C., of counsel), for defendant-appellant.
Carl Schuman, Asst. U.S. Atty., Hartford, CT (Christopher F. Droney, U.S. Atty. D. Conn., New Haven, CT, Amy B. Lederer, Asst. U.S. Atty., Hartford, CT, of counsel), for appellee.
Before: FEINBERG, PIERCE and MINER, Circuit Judges.
Vinal S. Duncan appeals from a judgment of conviction entered on May 28, 1993 in the United States District Court for the District of Connecticut (T.F. Gilroy Daly, Judge ), following a jury trial. On October 1, 1992, Duncan was charged in a multi-count indictment with conspiracy, bank fraud, and making corrupt payments to public officials. Specifically, Count One charged Duncan with conspiring (1) to impair and impede the lawful functioning of the Internal Revenue Service ("IRS"), (2) to impair and impede the lawful functioning of the Federal Home Loan Bank Board ("Federal Bank Board"), and (3) to commit bank fraud, all in violation of 18 U.S.C. Sec. 371. Count Two charged Duncan with bank fraud, in violation of 18 U.S.C. Sec. 1344. Count Four charged Duncan with conspiring to make corrupt payments to public officials, in violation of 18 U.S.C. Sec. 371. Count Five charged Duncan with making The jury convicted Duncan on Counts One, Two, Four and Five. On May 21, 1993, the district judge sentenced Duncan to sixty months incarceration on Count One and sixty months incarceration on Count Two (pre-guideline counts). Judge Daly concluded that the United States Sentencing Guidelines ("U.S.S.G.") applied to Counts Four and Five and imposed a four-level upward adjustment for Duncan's leadership role in the corrupt political payment scheme pursuant to U.S.S.G. Sec. 3B1.1(a). He adjusted Duncan's sentence upward an additional two points for perjury pursuant to U.S.S.G. Sec. 3C1.1. Consequently, the court sentenced Duncan to sixty months imprisonment on Count Four and sixty-five months for Count Five. All sentences were ordered to run concurrently. In addition, supervised release was imposed for a three-year term. Duncan was ordered to pay concurrent fines of $100,000 on Counts Four and Five and a $200 special assessment.
corrupt payments to public officials, in violation of 18 U.S.C. Sec. 666(a)(2). 1
On appeal, Duncan contends that (1) the district court erred by admitting the expert testimony of an IRS agent which stated a legal conclusion; (2) his conviction on Counts One and Two were barred by the Ex Post Facto Clause and Count One is time-barred; and (3) the district court erred by upwardly adjusting his sentence for a leadership role in conjunction with the political corruption charge. For the reasons stated below, we reject all of appellant's claims and we affirm the judgment.
The charges in this case arise from two separate criminal schemes. The conspiracy, bank fraud and tax-related charges (Counts One and Two) stem from defendant's involvement in the fraudulent acquisition and sale of property on Meriden Road while a director of Security Savings & Loan Association ("SSLA"). The corrupt political payoff charges (Counts Four and Five) stem from payments made by The Taft Group, Inc. (the "Taft Group"), a corporation comprised of Duncan and two others, to Joseph J. Santopietro, the former Mayor of Waterbury, Connecticut and to Santopietro's family and associates.
The basic facts of the Meriden Road transaction are undisputed. In November of 1980, Duncan and approximately thirteen other investors formed the bank, SSLA. Duncan was a bank director and later a member of the bank's loan committee.
In 1983, SSLA planned to open a new branch on the east side of Waterbury. Bank officials identified two adjoining parcels of land located on Meriden Road in Waterbury as a potential site. The five directors on SSLA's loan committee--Duncan, Richard Barbieri, Mario Albini, Domenic Daddona and Francis Campion--discussed purchasing the properties for themselves and leasing the properties to the bank. Barbieri, who was also SSLA's president, informed the other committee members that the Federal Bank Board regulations prohibited such a purchase unless all of the bank's directors were involved in the transaction. Nevertheless, in February of 1983, the five committee members, without disclosing their intentions to the bank's other directors, purchased the properties secretly through a nominee, John Colucci--a longtime personal friend of Duncan. Colucci obtained a $200,000 purchase money mortgage from SSLA to buy the properties. Without informing the other directors of their interest in the properties, Duncan, Barbieri, Daddona and Campion, as members of the loan committee, voted to grant Colucci the loan. Thereafter, Colucci leased one of the two parcels to the bank to use as a branch office. Duncan was a partner along with the other four beneficial owners of the subject Meriden Road properties (hereinafter collectively, the "beneficial owners") in a separate partnership called Shaw Management. Through Shaw Management In their capacity as SSLA directors, Duncan and the other beneficial owners voted to purchase one parcel from Colucci without disclosing their interest to the other directors. Colucci sold the property to SSLA for $200,000 and used the proceeds to pay off the remainder of the mortgage. In 1985, under similar circumstances, SSLA bought the remaining parcel for $135,000. Thereafter, Colucci paid $20,000 to each of the beneficial owners, including Duncan, in several checks of less than $10,000 each. 2 Once again, Duncan and the other beneficial owners did not inform SSLA's other directors that they were the true owners of the purchased property. In addition, Duncan did not report his profits from the sales of these properties on his tax returns.
Duncan managed the properties for Colucci and reimbursed him for any tax liabilities incurred as a result of his nominal ownership.
The Government presented evidence at trial that in the Spring of 1990, Duncan, Barbieri and Campion learned that bank regulators and investigators were probing banking practices at SSLA. Barbieri and Campion testified that they and Duncan met shortly thereafter and agreed to continue to conceal their involvement in the Meriden Road properties. Duncan did not deny his involvement in the Meriden Road transactions. Rather, he asserted that he lacked the necessary intent to defraud the bank, the Federal Bank Board, or the IRS.
In July 1990, federal regulators forced Barbieri and John Corpaci, SSLA's executive vice president, to resign from their positions at SSLA. Subsequently, three separate investigations were commenced: an investigation into SSLA's bank practices by the Office of Thrift Supervision ("OTS"), a criminal inquiry into the bank's practices by the FBI, and a political corruption and tax investigation by the FBI and IRS. The IRS case agent, Thomas Mulligan, ("Agent" or "Agent Mulligan"), who would later testify about the Meriden Road transactions and the general functioning of the tax system at Duncan's trial, participated in the investigation.
In 1986, Duncan along with Barbieri and Corpaci formed the Taft Group. Duncan was the president, Barbieri, the vice-president, and Corpaci, the secretary-treasurer. The Taft Group was primarily involved in real estate development and investments.
The record evidence discloses that Joseph Santopietro was elected Mayor of Waterbury in 1985. Shortly after taking office, he struck a deal with the Taft Group wherein he and his associates would profit from the Taft Group's real estate and investment opportunities in exchange for favorable treatment by the Administration and city agencies. Between 1986 and 1990, many payments and benefits were extended to Santopietro and his associates. Specifically, Santopietro was often permitted to participate or benefit financially from the Taft Group's real estate deals and he and his associates were given favorable treatment at SSLA. In addition, the Taft Group made payments to Santopietro, frequently funneling payoffs to him through his associates or through sham transactions.
At trial, Duncan did not deny that public officials were given corrupt payments. However, Duncan contended that he lacked guilty knowledge and intent to make improper payments. In contrast, Duncan's partners, Barbieri and Corpaci, each of whom had pleaded guilty and had agreed to testify for the Government, provided testimony concerning Duncan's guilty knowledge and intent.
Duncan contends on appeal that: (1) the expert testimony of Agent Mulligan invaded the province of the jury by stating a legal conclusion; (2) his conviction on Counts One and Two were barred by the Ex Post Facto Clause and Count One is time-barred; and (3) the sentencing judge clearly erred in adjusting upward Duncan's sentence, because
Duncan contends that there is no evidence that he played a leadership role in the political corruption scheme. We address each of these contentions in turn.
Duncan's contention that the expert testimony of Agent Mulligan was erroneously admitted lacks merit. As a general proposition, the decision of whether to admit expert testimony is left to the discretion of the trial judge and should not be set aside unless "manifestly erroneous." United States v. Schwartz, 924 F.2d 410, 425 (2d Cir.1991). Generally, expert testimony may be admissible if it is helpful to the trier of fact. See Fed.R.Evid. 702. Expert witnesses are often uniquely qualified in guiding the trier of fact through a complicated morass of obscure terms and concepts. Because of their specialized...
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