U.S. v. Haimowitz

• Citation: 725 F.2d 1561
• Decision Date: 05 March 1984
• Docket Number: No. 82-3009,82-3009
• Parties: 15 Fed. R. Evid. Serv. 441 UNITED STATES of America, Plaintiff-Appellee, v. Harold HAIMOWITZ, Dan Scarborough, George L. Onett, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1561

725 F.2d 1561

15 Fed. R. Evid. Serv. 441

UNITED STATES of America, Plaintiff-Appellee, v. Harold HAIMOWITZ, Dan Scarborough, George L. Onett Defendants-Appellants.

No. 82-3009.

United States Court of Appeals, Eleventh Circuit.

March 5, 1984.

Nathan Dershowitz, New York City, Lacy Mahon, Jr., Jacksonville, Fla., for Haimowitz.

Denis Dean, Miami, Fla., for Scarborough.

Arthur W. Tifford, Miami, Fla., for Onett.

Carlotta Miller, Curtis Fallgatter, Asst. U.S. Attys., Jacksonville, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before FAY and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

Defendants Harold Haimowitz, Dan Scarborough, and George L. Onett were indicted on twenty counts. Count One charged that each of the defendants conspired to defraud by using and causing to be used the United States Postal Service in violation of 18 U.S.C. Secs. 371 and 1341. Count Two charged that each of the defendants conspired to obstruct interstate commerce by extortion in violation of 18 U.S.C. Sec. 1951. Count Three charged that defendant Haimowitz obstructed and attempted to obstruct interstate commerce by extortion in violation of 18 U.S.C. Sec. 1951. Count Four charged each of the defendants with obstructing and attempting to obstruct interstate commerce by extortion in violation of 18 U.S.C. Sec. 1951. Count Five charged defendants Haimowitz and Scarborough with obstruction and attempted obstruction of interstate commerce by extortion in violation of 18 U.S.C. Sec. 1951. Counts Six through Eight and Ten through Thirteen charged defendant Haimowitz with substantive mail fraud in violation of 18 U.S.C. Sec. 1341. Count Nine charged defendants Haimowitz and Onett with substantive mail fraud in violation of 18 U.S.C. Sec. 1341. Counts Eighteen through Twenty charged defendant Onett with perjury in violation of 18 U.S.C. Sec. 1623. ¹

After a bench trial in the United States District Court for the Middle District of Florida, Haimowitz was found guilty on Counts One, Two, Four, Five, Six, Seven, Nine and Twelve, Scarborough was found guilty on Counts One, Two, Four, and Five, and Onett was found guilty on Counts One, Two, Four, Nine, Eighteen, and Nineteen. ² We affirm the conviction of Haimowitz on Counts One, Two, Four, Six, Seven, Nine, and Twelve, of Scarborough on Counts One, Two, and Four, and of Onett on Counts One, Two, Four, Nine, Eighteen, and Nineteen. The convictions of Haimowitz and Scarborough on Count Five are reversed.

I. FACTS

This case involves a scheme by which Haimowitz, Scarborough, and Onett sought to obtain a liquor license from the state of Florida for Peter Abbott, ³ whom they knew was not qualified to receive a license. To accomplish their scheme, defendants committed federal offenses of mail fraud and extortion. While the facts will be brought out in more detail throughout the opinion, we summarize the district court's findings of facts.

Peter Abbott first approached Haimowitz, a practicing lawyer in Jacksonville, Florida, in October or November of 1979. Haimowitz assisted Abbott in finding and purchasing a restaurant, which was to be operated as Abbott's Restaurant (the "restaurant"). In order to purchase the restaurant, Abbott needed a Small Business Administration ("SBA") loan. The loan application first reflected Haimowitz as a 10 percent owner but his interest was removed at the bank's insistence. The loan application then was approved reflecting a 50 per cent ownership interest in each of Peter Abbott and Jean Abbott, Peter's wife. The final loan application, which Haimowitz assisted Jean Abbott in executing, showed her as the 100 per cent owner.

The Articles of Incorporation for the restaurant reflect execution by Jean Abbott on December 10, 1979. The document was not actually signed, however, until January 3, 1980, at which time Jean Abbott's name was forged to the Articles by Peter Abbott in the presence of Haimowitz, and the signature was notarized by Haimowitz's secretary at Haimowitz's request.

Haimowitz also assisted the restaurant in obtaining a liquor license. On December 11, 1979, he accompanied Jean Abbott to the Jacksonville office of the Beverage Department of the State of Florida (the "Beverage Department"), where Jean Abbott executed a personal questionnaire and provided the Beverage Department with her fingerprints. In February, Haimowitz again accompanied Jean Abbott to the Beverage Department to file applications for a temporary liquor license and permanent transfer of the liquor license. The officer in charge of the Beverage Department advised Haimowitz of the procedures for processing the applications, including the fact that all correspondence and applications were mailed from the Jacksonville office of the Beverage Department to the Tallahassee office. An investigator from the Beverage Department made an on-site inspection of the restaurant, at which time Peter Abbott told the investigator that he and his wife, Jean, were divorced. Abbott reported this conversation to Haimowitz, and Haimowitz advised Abbott that he should not tell the beverage officials that he was divorced because they could determine the falsity of that allegation, but rather Abbott should tell them that he and his wife were separated and going to get divorced.

In March, the first temporary liquor license was issued to the restaurant and the restaurant opened for business. Peter Abbott provided Haimowitz with the fee for the temporary license. In April, an investigator for the Beverage Department met with Haimowitz at the latter's office to examine the corporate books of the restaurant. Haimowitz denied that Peter Abbott had any interest, direct or indirect, in the restaurant and advised the investigator that the books were not ready but that they would be provided at a later date. Haimowitz bragged to the investigator about his association with the defendant Scarborough, whose photograph appeared in Haimowitz's office.

Subsequently, Haimowitz filed affidavits with the Beverage Department executed by Peter and Jean Abbott, which provided that Peter Abbott had no interest in the restaurant and would not continue to sign checks on the restaurant account. Nevertheless, Abbott continued to sign many more checks, including some to Haimowitz. Abbott also signed the original check for a second temporary liquor license fee. Haimowitz met with the supervising officer of the Beverage Department and told the supervisor that Peter Abbott had no interest in the restaurant business. The supervisor informed Haimowitz of the statutory requirement of disclosure of all interested parties. Haimowitz told his secretary, upon her inquiry, that the reason for placing everything in Jean Abbott's name was that Peter Abbott was a convicted felon and that this information should remain secret.

Upon the insistence of the supervisor of the Beverage Department, Peter Abbott was taken by Haimowitz to the Jacksonville Beverage Department office to be fingerprinted. Haimowitz advised Abbott to keep quiet and follow his instructions. He also advised Abbott that even if the fingerprint investigation came back positive, they should not be concerned because all of the paperwork reflected that Peter Abbott had no interest in the restaurant.

On April 22, 1980, the Beverage Department disapproved the application for transfer of the liquor license. When Beverage Department officials attempted to pick up the temporary license from the restaurant, Abbott got in touch with Haimowitz, who obtained a temporary injunction from a state court judge. Subsequently, Haimowitz and Louis H. Ritter, Sr. ⁴ met with Charles Nuzum, the director of the Beverage Department, in Tallahassee. Nuzum advised Haimowitz and Ritter of the Beverage Department's concern regarding the liquor license application, and instructed them that the application must be amended to accurately reflect the true source of the funds used to acquire the restaurant, all parties directly or indirectly interested in the restaurant, and the correct marital status of Peter and Jean Abbott.

Thereafter, Haimowitz met with defendant Scarborough in the latter's legislative office. Scarborough at that time was a state senator from the Jacksonville, Duval County, Florida area and was President Pro Tem of the Florida Senate. Scarborough suggested to Haimowitz that Haimowitz talk to defendant Onett, a lawyer engaged in lobbying activities in the state capital, for assistance in obtaining the transfer of the permanent liquor license. Subsequently, Haimowitz advised Abbott that Scarborough would obtain the services of Onett and that Onett had wanted $25,000, but Haimowitz had talked Onett down to $20,000, and Scarborough had further "muscled" Onett down to $15,000.

In May, Onett told Nuzum that he was working with Haimowitz on the Abbott's Restaurant liquor license application. Nuzum advised Onett of the same matters which he had reported to Haimowitz, including the requirements to obtain approval of the license transfer application. Onett advised Nuzum that Peter Abbott had no ownership interest, direct or indirect, in the restaurant operation.

In the meantime, Haimowitz filed an amended application in the Jacksonville office of the Beverage Department for the transfer of the permanent liquor license. Haimowitz accompanied Jean Abbott to the office and instructed her to let him do the talking. Later, Haimowitz met with Peter Abbott and advised him not to tell his wife that he was "paying off" for the liquor license. Haimowitz also advised Abbott how to phrase his conversation with Scarborough when they were to meet with Scarborough later that week. In addition, Haimowitz told Abbott that Scarborough was upset because Abbott had not yet paid the $15,000.

On May 24, 1980, Peter Abbott was videotaped counting $7,500 in denominations of $10 and $20 bills....