U.S. v. Falcone, 277

• Decision Date: 01 November 1976
• Docket Number: No. 277,D,277
• Citation: 544 F.2d 607
• Parties: UNITED STATES of America, Appellee, v. Joseph FALCONE and Joseph Curreri, Appellants. ocket 76-1237.
• Court: U.S. Court of Appeals — Second Circuit

Page 607

544 F.2d 607

UNITED STATES of America, Appellee, v. Joseph FALCONE and Joseph Curreri, Appellants.

No. 277, Docket 76-1237.

United States Court of Appeals, Second Circuit.

Argued Oct. 5, 1976.

Decided Nov. 1, 1976.

George W. F. Cook, U. S. Atty., D. Vt., Rutland, Vt. (Jerome F. O'Neill, Asst. U. S. Atty., Rutland, Vt., on the brief), for appellee.

Irving Anolik, New York City (James W. Murdoch, Burlington, Vt., on the brief), for appellants.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

LUMBARD, Circuit Judge:

Joseph Falcone and Joseph Curreri appeal from convictions entered on April 19, 1975 after an eight day trial before Judge Coffrin in the District of Vermont. Appellants were each found guilty, on five counts, of having violated 18 U.S.C. §§ 152 and 2: ¹ the fraudulent concealment of the property of a bankrupt from the trustee and creditors of Alburg Creamery, Inc. of Alburg, Vermont (count I); the making of a false oath in regard to a bankruptcy proceeding (count II); the fraudulent transfer and concealment of property in contemplation of a bankruptcy proceeding and with the intent to defeat the bankruptcy laws (count III); the fraudulent making of a false entry in a document relating to the property of a bankrupt (count IV); and, conspiring to violate the bankruptcy laws by the doing of the foregoing acts (count V). ² The principal claim of appellants is that there was insufficient evidence to submit the case to the jury and that the trial court erred in denying their motion for judgment of acquittal. We find no merit in any of the claims of error and, accordingly, affirm.

During the period of the alleged offenses, appellant Falcone was an officer of both Falcone Dairy Products, Inc., of Brooklyn, New York (hereinafter "the Dairy") and its wholly owned subsidiary Alburg Creamery (hereinafter "Alburg"); Curreri was the office manager of the Dairy during this time period. Alberg's principal product was mozzarella cheese, most of which was ordinarily sold to the Dairy which marketed the cheese to its customers.

The essence of the government's case was that by placing a false credit of $210,711.05 on the Dairy's books against amounts owed to Alburg, the appellants transferred and concealed Alburg's accounts receivable in contemplation of Alburg's bankruptcy. According to the government, this offense was compounded by the filing with the trustee in bankruptcy of a false Statement of Affairs which failed to disclose that the credit had been taken, and which, as a result of the credit, listed the Dairy as a creditor rather than a debtor of Alburg.

The main factual issue at trial revolved around appellants' claim that the credit, which had been entered on the books on January 31, 1974, was legitimately taken for defective, "fishy"-smelling cheese delivered by Alburg in 1971. The government produced substantial evidence in support of its theory that the credit was fraudulently taken and that the "fishy" cheese story was a fabrication to cover-up the transfer and concealment of Alburg's assets. The government established that on January 22, 1974 Alburg was adjudicated a bankrupt and on that date the Dairy owed Alburg somewhere between $172,000. and $284,000. for shipments of cheese; the exact amount owed was uncertain as most of Alburg's books were lost in a fire that destroyed the Alburg plant on July 13, 1973. On January 31, 1974, pursuant to the instructions of the appellants, a credit against Alburg in the amount of $210,711.05 was placed in the Dairy's books with the notation: "Accounts Payable Alburg. . . . To adjust for credits to customers due to defective cheese from July 1971 thru Dec. 1971." ³ The government further established that as vice-president of Alburg, Falcone executed a Statement of Affairs and filed it with the trustee in bankruptcy on February 14, 1974. The statement did not show the Dairy to be a debtor of Alburg; rather, the statement listed the Dairy as an unsecured creditor of Alburg in the amount of $48,709.31. ⁴ The statement failed to indicate in any way that the Dairy had taken the $210,000. credit just a few days before. The trustee testified that although the Dairy's books had been produced (at his request), the estate was administered on the basis of the debits and credits shown in the Statement of Affairs. Thus, the trustee did not attempt to collect and did not even know of the debt owed by the Dairy.

In support of the government's contention that little or no defective cheese was delivered by Alburg in 1971 Leo Laramee, a cheesemaker and the manager of Alburg up until his resignation in 1973, testified that although Alburg had some problems with "fishy"-smelling cheese up until 1969, this problem was eliminated in 1969. ⁵ Laramee was unaware of any substantial or unusual problems with Alburg's cheese in 1971; he received no complaints from the Dairy, and, in fact, the Falcones had complimented him on the quality of Alburg's cheese. Warren Laramee (Leo Laramee's son, employed as a cheesemaker at Alburg), substantially corroborated his father's testimony.

According to the government's calculations at trial, in order to establish a $210,000. credit, the Dairy must have received more than 400,000 pounds of rancid cheese about 40 per cent of all cheese delivered by Alburg to the Dairy in the last six months of 1971. The government established that Lucille Farm Products, Inc., which bought one-half of Alburg's cheese output in 1971 (about one million dollars worth), received only $1,900. in credits against Alburg for that entire year.

As indicated above, the defense at trial was that the $210,000. credit was legitimately taken for defective cheese that Alburg delivered to the Dairy in the last six months of 1971. Both appellants testified that the Dairy had received large amounts of rancid cheese from Alburg during the period in question and that because of this the Dairy had been forced to give numerous credits to its customers. While the Dairy's books showed that during the last six months of 1971 a number of credits had been given to customers, the entries neither specified the reason the credits were given, nor indicated in any way that the Dairy had received bad cheese from Alburg. Appellants also testified that they had not taken the credits against Alburg in 1971 because they were afraid that to do so would have thrown Alburg into bankruptcy. The appellants also called Joseph Campagna, a Dairy customer, who testified that he had received a good deal of foul cheese from the Dairy for which he received credit. However, Campagna's testimony was indefinite as to the amount of cheese and credits involved and he stated that he did not know who had produced the cheese; this latter admission is significant because the government established that Alburg was not the Dairy's only source of cheese.

Appellants also called their attorney, Joseph Wool, and the Dairy's accountant who testified that they had advised the appellants that it would be permissible to take a credit in 1974 for deliveries of foul cheese made in 1971. In addition, appellants produced an accounting expert who testified that, in his opinion, it was not an improper accounting method to cancel the 1971 purchases in 1974. Of course, if the jury believed that there was no factual basis for the credit, the advice given the appellants was wholly immaterial. ⁶

Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Marrapese, 486 F.2d 918, 921 (2d Cir. 1973), cert. denied, 415 U.S. 994, 94 S.Ct. 1597, 39 L.Ed.2d 891 (1974), it is clear that a reasonable juror might fairly find the appellants guilty. United States v. Rivera, 513 F.2d 519, 528-30 (2d Cir.), cert. denied, 423 U.S. 948, 96 S.Ct. 367, 46 L.Ed.2d 284 (1975); United States v. Freeman, 498 F.2d 569, 571 (2d Cir. 1974); United States v. Taylor, 464 F.2d 240, 243-45 (2d Cir. 1972). There was ample evidence that the $210,000. credit was entered with the intent to transfer and conceal Alburg's accounts receivable and that the "fishy"-cheese story was a fabrication. That the Dairy waited over two years, until its subsidiary had gone bankrupt, before taking the credit is in itself suspicious. Moreover, the Dairy's books nowhere indicate (except, of course in the January 31, 1974 entry taking the credit) that any bad cheese had been received from Alburg during the relevant period. To justify the $210,000. credit, 40 per cent of the cheese sent by Alburg to the Dairy in the last six months of 1971 would have had to have been bad. In contrast, Lucille Farm Products, Inc., which in 1971 bought one-half of Alburg's output, received only $1,900. in credits for the entire year. Finally, Alburg's manager, Leo Laramee, testified that he received no complaints from the Dairy in 1971 concerning "fishy" cheese and was unaware of any unusual problems with Alburg's cheese.

The remaining claims of error merit little discussion. Appellants allege that FBI agents used tactics that were "fundamentally unfair" in obtaining statements admitted over objection at trial. Agent Axton...