U.S. v. Friedman

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: ROSENN
• Citation: U.S. v. Friedman, 649 F.2d 199 (3rd Cir. 1981)
• Decision Date: 29 May 1981
• Docket Number: No. 80-2149,80-2149
• Parties: UNITED STATES of America v. Albert FRIEDMAN, Appellant.

Page 199

649 F.2d 199

UNITED STATES of America v. Albert FRIEDMAN, Appellant.

No. 80-2149.

United States Court of Appeals, Third Circuit.

Argued Feb. 23, 1981.

Decided May 21, 1981.

As Amended May 29, 1981.

Wilbur Greenberg (argued), Albert J. Olizi, Jr., Sidkoff, Pincus, Greenberg & Green, P.C., Philadelphia, Pa., for appellant.

Peter F. Vaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Elizabeth K. Ainslie (argued), Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Before ADAMS, ROSEN and HUNTER Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

Albert Friedman appeals from his conviction, after a trial by jury, on one count of transportation of checks in interstate commerce, knowing them to be stolen, converted or taken by fraud, 18 U.S.C. § 2314 (1976), and one count of conspiracy to violate the substantive statute, 18 U.S.C. § 371 (1976). In this appeal, Friedman raises questions challenging the indictment procedure, the sufficiency of the evidence, and certain statements of the prosecutor in the course of trial alleged to be improper and prejudicial. We conclude that these contentions are without merit and affirm the conviction.

I.

In November of 1974, defendant Albert Friedman, an insurance agent licensed by the Commonwealth of Pennsylvania, persuaded six persons, ¹ residents of Pennsylvania, to purchase through him life insurance policies issued by Lincoln National Life Insurance Co. The arrangements offered by the defendant and accepted by the six provided that no premiums were payable the first year of the policies. To obtain the policies, the defendant forwarded the applications of the six to broker Stanley Sabolsky, who submitted the applications through an insurance agency, Mindep, Inc., to Lincoln National Life of New York (Lincoln of New York), a wholly-owned subsidiary of Lincoln National Life of Fort Wayne. The New York subsidiary issued the policies and in turn submitted the applications to its parent in Fort Wayne.

In reviewing the policies, a consultant to the parent company concluded that these policies, written in Camden, New Jersey, and sold to Pennsylvania residents, should have issued directly from the parent company and not from Lincoln of New York. In early December at a meeting at Newark Airport, representatives of the two Lincoln insurance companies, including Sabolsky, agreed that the policies issued by the New York company would be recalled and new policies issued by the parent company. Because of differences in the manner in which the two companies compute premiums on policies, the premiums due on the parent-issued policies were less than those due on the New York policies. Believing erroneously that the insureds had actually paid first year premiums, the parent company sought to reimburse the six insureds for their "overpayment." Ultimately, six checks were issued as reimbursement, one to the wife of each insured, the wives named as payees because they were the owners of the policies. These checks, at least three of which passed through Sabolsky's office, were subsequently delivered to Friedman.

Upon receiving the checks, Friedman communicated with one of the insureds, Dr. Saltz, and told him about his reimbursement check. Dr. Saltz accepted it, but at Friedman's "suggestion" Dr. Saltz gave the agent "$2,000 or $3,000" in cash. This transaction is not at issue in this case. Friedman claims that he similarly communicated with each of the insureds and received permission to endorse and cash the other five checks, keeping the money, even though the checks were payable to the insureds' wives. The insureds denied any knowledge of Friedman's receipt of the checks or of their existence. Each wife testified that she had not endorsed a check nor authorized any other person to endorse or negotiate checks on her behalf. The endorsement and cashing of these five checks is the basis for Friedman's conviction.

Friedman admits endorsing the checks and delivering them to Sidney Grossman, a business associate, who cashed them. After certain deductions for debts owed by Friedman, Grossman returned the remainder, nearly $9,000, by check to Friedman. Friedman opened a bank account in which he deposited Grossman's check. The very next day Friedman drew a check on that account to Sabolsky for $5,000, a payment Friedman claims was in settlement of a debt he owed the broker.

On December 4, 1979, a grand jury indicted Friedman on five counts of interstate transportation of stolen, converted or fraudulently taken checks, 18 U.S.C. § 2314 (1976), ² and one count of conspiracy, 18 U.S.C. § 371 (1976), ³ alleging that Friedman conspired with Sabolsky. Following Friedman's motion on January 11, 1980, for dismissal of the indictment, the district court granted the Government leave to obtain a superseding indictment. On February 5, 1980, more than five years after the completion of the alleged crime, the grand jury returned a superseding indictment, charging defendant with one count of the substantive offense and one count of conspiracy. On February 22, 1980, Friedman moved for dismissal of the superseding indictment; the court denied the motion.

The jury returned a verdict of guilty on both counts of the superseding indictment. Various post-trial motions for acquittal or new trial were denied. Friedman was sentenced on July 22, 1980, to three years in prison, all but 10 days of which was suspended, and fined $10,000. This appeal followed.

II.

Friedman argues that certain defects in the successive indictments render his conviction invalid. First, the original indictment against him charged five counts of violating the substantive statute, yet four of the five counts were on their face insufficient: only one met the jurisdictional amount of $5,000. Second, although the Government was able to obtain a superseding indictment, it was lax in having the first indictment dismissed. Thus, the first indictment had not been dismissed officially when Friedman's trial on the second indictment began.

A.

Friedman first asserts that he has been put twice in jeopardy in violation of the fifth amendment by his trial on the superseding indictment before the original indictment was properly dismissed. The argument of Friedman rests on dicta in United States v. Cerilli, 558 F.2d 697 (3d Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 507, 54 L.Ed.2d 452 (1977), a per curiam opinion in which this court stated that

it has long been settled that the Double Jeopardy Clause is not abridged where there are two pending indictments, setting forth largely identical charges, against the same defendants. Only where the government attempts to proceed to trial on both indictments does the double jeopardy protection come into play.

Id. at 701 (footnote omitted). See also United States v. Stricklin, 591 F.2d 1112, 1115-16 n.1 (5th Cir. 1979) (although there may be two indictments charging the same offense outstanding prior to trial, the Government can proceed to trial only on one). Friedman contends that, the original indictment not having been dismissed when trial began, jeopardy attached to the original indictment. Therefore, he argues, he could not be convicted on the superseding indictment.

His argument fails for two reasons. First, although the district court had not dismissed the original indictment when trial began, it does not follow that the Government was proceeding on the original indictment. Rather, the Government contends and we agree that Friedman was tried solely on the superseding indictment. The Government's pre-trial memorandum, submitted two weeks prior to trial, indicates clearly that the Government was proceeding on the superseding indictment, which alleged only two counts. Moreover, the district court believed that only the superseding indictment was being pressed. When the defendant made his double jeopardy motion on the second day of trial, the court observed that the Government's proceeding on the superseding indictment "is obviously what is happening." On the third day of trial, the court informed the defendant, in answer to a renewed double jeopardy motion: "The original indictment is dismissed, whether it has been formally done or not. We are concerned here only with the superseding indictment." Although the original indictment was not formally dismissed when trial began, it is plain that the Government was proceeding with only the superseding indictment.

There is a second problem with Friedman's argument. He cannot explain how jeopardy has attached twice. Initially, he had not shown why it should be presumed that when the trial began jeopardy attached to the original indictment, not the second indictment. On its face, more logically jeopardy attached to the superseding indictment. Further, he does not indicate a second attachment of jeopardy: there was only one jury, only one trial, only one verdict.

B.

Friedman contends further that he could not have been tried on the superseding indictment because it was barred by the statute of limitations. The original indictment admittedly was timely. Following Friedman's motions to dismiss that indictment the Government, with leave of court, obtained a superseding indictment. That indictment, in the absence of the preceding indictment, would not have been timely: the general statute of limitations on non-capital offenses is five years, 18 U.S.C. § 3282 (1976), and more than five years had elapsed between the crime and the second indictment. But the superseding indictment is not time-barred if the timeliness of the original indictment tolls the limitation or triggers some exception.

Friedman, in his brief, expends considerable energy explaining why the Government cannot rely on 18 U.S.C. § 3288 (1976) in its argument that the superseding indictment is not barred. He is correct. Section 3288 permits a superseding indictment only in two instances:

Whenever (1) an indictment is dismissed for any error,...