U.S. v. Georgalis

• Decision Date: 03 December 1980
• Docket Number: No. 79-5183,79-5183
• Citation: 631 F.2d 1199
• Parties: 7 Fed. R. Evid. Serv. 763 UNITED STATES of America, Plaintiff-Appellee, v. Demetrius Cyrus GEORGALIS, a/k/a Cy Georges, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1199

631 F.2d 1199

7 Fed. R. Evid. Serv. 763

UNITED STATES of America, Plaintiff-Appellee, v. Demetrius Cyrus GEORGALIS, a/k/a Cy Georges, Defendant-Appellant.

No. 79-5183.

United States Court of Appeals, Fifth Circuit.

Unit B

Dec. 3, 1980.

G. B. "Cap" Wilson, II, Gainesville, Fla., for defendant-appellant.

C. Wesley G. Currier, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, KRAVITCH and HATCHETT, Circuit Judges.

HATCHETT, Circuit Judge:

Appellant, Demetrius Cyrus Georgalis, a/k/a Cy Georges, appeals a seven count jury conviction for mail fraud, 18 U.S.C. § 1341. ¹ Georgalis contends that he was victimized by impermissible prosecutorial questioning, that the elements of mail fraud were not proved, that the trial judge erroneously admitted into evidence certain letters and copies of letters, that there was a fatal variance between the charges set forth in the grand jury indictment and the proof offered at trial, and that insufficient evidence was presented to the grand jury upon which to base its factual findings. After a full review of the record, we find Georgalis's contentions without merit, with the exception that mail fraud was not proved as to counts two and six. Thus, we affirm his conviction on counts three, four, five, seven, and eight. We reverse on counts two and six.

FACTS

During part of 1971 and 1972, Georgalis was president of a corporate entity known as Colorflame of Hollywood, Inc. Colorflame's purpose was to develop, market, and have manufactured the Colorflame product line. The chief Colorflame product was a smokeless, odorless fuel for decorative lighting which supposedly burned in all the colors of the rainbow. Colorflame was designed for use in homes and restaurants as table and ornamental decorations, and as fuel to cook flaming foods and desserts. The liquid fuel did not burn in all the colors of the rainbow, however, and was toxic when it burned in green. Nor was a safe and dependable mechanism for burning the fuel ever developed. During 1971 and 1972 Georgalis and others solicited various people to make investments in Colorflame for stock and/or distributorships. Part of the solicitation involved demonstrations of the liquid fuel and an explanation of how a sophisticated program for development, marketing, and distribution of the product would be employed. No such program was ever employed. Georgalis also utilized brochures and news releases to advertise Colorflame products which, save for demonstration purposes, were non-existent. These non-existent products included Colorflame vessels for the burning of the Colorflame liquid fuel, a solid fuel, and Colorflame wax candles with scent additives.

As a result of the solicitations, advertising, and demonstrations, various people invested over one half million dollars in Colorflame. Evidence at trial indicated that Georgalis diverted approximately three out of every five dollars received by Colorflame into other business enterprises in which he was involved. When the Board of Directors of Colorflame realized that the investment money was depleted, they took control of Colorflame from Georgalis in August, 1972. An investigation ensued.

On May 5, 1977, Georgalis was charged with a nine count indictment for mail fraud under 18 U.S.C. § 1341. The indictment resulted from the testimony and information supplied by the sole witness, a postal The government based its mail fraud case upon nine letters that were all mailed after Georgalis received the money resulting from his fraudulent scheme. All such money had been received prior to the applicable five-year statute of limitations. The trial judge permitted the government to introduce into evidence, without establishing a chain of custody, the nine letters, plus certain other letters and copies of letters held in the government's exclusive possession for five years. Several of the incriminating letters on which the government based its case were mailed by employees of Georgalis's Colorflame corporation and by victims of Georgalis's scheme.

inspector. In essence, the indictment charged Georgalis with using the mails in furtherance of a scheme to defraud, wherein he promoted a questionable product, the liquid fuel, as a good product, and promoted other non-existent products. Further, the indictment charged that none of the products were ready to be marketed, as promised by Georgalis to the investors.

At the culmination of the three-week mail fraud jury trial, during cross-examination, the prosecutor questioned Georgalis about a non-existent felony conviction for issuing fraudulent checks. The prosecutor relied on an uncertified copy of a Federal Bureau of Investigation rap sheet and a Florida probation report. Georgalis denied any conviction. Shortly thereafter, the court adjourned for the day. The next morning, the prosecutor began by telling the jury that he was in error and that Georgalis was correct in denying a prior conviction. The trial judge instructed the jury to disregard the prosecutor's question. Georgalis moved for a mistrial on the ground of prejudice resulting from the question. The trial judge denied the motion. Subsequently, the jury convicted Georgalis on seven of the nine counts of mail fraud.

ISSUES

In this appeal, Georgalis raises six issues:

(1) Whether the improper statements made by the prosecutor concerning Georgalis's non-existent felony conviction constituted fatal error requiring a mistrial;

(2) whether the letters were sent after the fraudulent scheme had been completed and were therefore outside the scope of the statute of limitations;

(3) whether there was a fatal variance between the charges in the indictment and the proof offered at trial;

(4) whether there was a question of the letters' authenticity such that the government should have presented a custodian to account for the whereabouts of the letters over the five year period;

(5) whether the jury could reasonably have found that letters not mailed by Georgalis were caused to be mailed by Georgalis so as to support his conviction for mail fraud; and,

(6) whether the indictment should be quashed because there was insufficient evidence presented to the grand jury upon which to base its factual findings.

DISCUSSION

I.

We must initially determine whether Georgalis suffered sufficient prejudice from the prosecutor's violation of Fed.R.Evid. 609 ² to require reversal of the trial judge's denial of a new trial.

At the close of three days of the government's cross-examination of Georgalis, the following exchange took place.

Mr. Currier (prosecutor): Mr. Georges, is it not true sir, that in 1973 you were convicted of the felony of writing worthless checks?

Mr. Georgalis: That is absolutely untrue, sir. I'm shocked that you would say that.

Georgalis's counsel: So am I.

Mr. Currier: You did not receive four years probation and directed to make restitution-

Georgalis's counsel: Your Honor-

Mr. Currier:-on a worthless check charge, sir? ³

The Supreme Court has held that an error is harmless if it had "but very slight effect" upon the jury, "except perhaps where the departure is from a constitutional norm or a specific command of Congress." Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S.Ct. 1239, 1247-1248, 90 L.Ed. 1557 (1946). Here, the violation of Rule 609 arguably constitutes a departure from a "specific command of Congress." Id., at 765, 66 S.Ct. at 1248. The appropriate standard of review in a case involving a violation of Rule 609 was not addressed in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), where the Court held that in cases involving a departure from constitutional norms an appellate court must be convinced "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Twice, the District of Columbia Circuit has left undecided whether the Kotteakos standard, the Chapman standard, or an intermediate standard is proper in reviewing Rule 609 violations. United States v. Dorsey, 591 F.2d 922 (D.C.Cir.1978); United States v. Smith, 551 F.2d 348 (D.C.Cir.1976). This circuit has never held that a violation of the rules may fall outside of Kotteakos, and has felt bound by Kotteakos to uphold a judgment whenever an error has "no substantial influence" and enough "untainted evidence supports the result." E.g., United States v. Rodriguez, 573 F.2d 330, 333 (5th Cir. 1978).

In a case relied on by Georgalis, the Second Circuit identified the following three factors in assessing claims of prejudice from improper prosecutorial questioning: (1) the degree of initial prejudice; (2) the effectiveness of corrective measures; and (3) the importance of the defendant's credibility in view of the strength of the government's other evidence. United States v. Semensohn, 421 F.2d 1206 (2d Cir. 1970).

We have reviewed the trial transcript and have determined that the jury was not aware that the prosecutor had before him an FBI rap sheet. We, therefore, conclude that there was no aggravation of initial prejudice by the presence of the FBI rap sheet. The degree of initial prejudice was aggravated, however, by the absence of any other implied criminal convictions of Georgalis, and the similarity of the implied prior conviction, issuing fraudulent checks, to the current prosecution, for mail fraud. Initial prejudice was mitigated by Georgalis's denial of a conviction and the prosecutor's decision not to introduce any evidence of a prior conviction.

This circuit has frequently relied upon corrective instructions in finding harmless error after impermissible questioning about prior convictions and bad acts. E.g., United States v. Walker, 621 F.2d 163 (5th Cir. 1980). Here, the day after the prosecutor impermissibly asked concerning Georgalis's non-existent check fraud conviction, the prosecutor and the court made the following...