U.S. v. Hockridge, s. 441

• Decision Date: 27 March 1978
• Docket Number: Nos. 441,443,522,D,s. 441
• Citation: 573 F.2d 752
• Parties: 2 Fed. R. Evid. Serv. 1330 UNITED STATES of America, Appellee, v. William H. HOCKRIDGE, Charles Petri and Stephen K. Easton, Appellants. ockets 77-1243, 77-1258, 77-1285.
• Court: U.S. Court of Appeals — Second Circuit

Page 752

573 F.2d 752

2 Fed. R. Evid. Serv. 1330

UNITED STATES of America, Appellee, v. William H. HOCKRIDGE, Charles Petri and Stephen K. Easton, Appellants.

Nos. 441, 443, 522, Dockets 77-1243, 77-1258, 77-1285.

United States Court of Appeals, Second Circuit.

Argued Dec. 14, 1977.

Decided March 27, 1978.

Irving Anolik, New York City, for appellant Hockridge.

Robert S. Cohen, Lans Feinberg & Cohen, New York City (Deborah E. Lans, New York City, of counsel), for appellant Easton.

Daniel J. Kornstein, New York City, for appellant Petri.

Dominic F. Amorosa, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., David W. O'Connor, Richard Weinberg, Asst. U. S. Attys., New York City, of counsel), for appellee.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and BARTELS, District Judge. ^*

OAKES, Circuit Judge:

The principal issue raised in this appeal is the propriety of the district court's refusal to permit two jurors to impeach a partial verdict. Questions of sufficiency of the evidence with respect to appellant Hockridge, jury bias, adequacy of the conspiracy instructions, purported withholding of evidence by the Government, and erroneous evidentiary rulings are also presented, but each merits only limited discussion.

Appellants Hockridge, Petri and Easton challenge the judgments of conviction entered after an eight-week jury trial in the United States District Court for the Southern District of New York before Dudley B. Bonsal, Judge. Under Count One of the indictment all three appellants were convicted of conspiracy ¹ (a) to misapply moneys of the Chemical Bank (Chemical), Hockridge's employer, (b) to prepare and submit false financial statements for the purpose of obtaining loans from Chemical and from the Bank of New York, and (c) to make false entries in Chemical's books and reports. They also were found guilty of a substantive count Count Two charging misapplication and assisting in the misapplication of approximately $1,145,000 in Chemical funds. ² Petri, the owner of various shell companies and a borrower from Chemical, was also convicted of substantive Count Eight for preparing a false financial statement of the Oceanic Drug Co. for the purpose of influencing Chemical to loan $75,000 to that company. ³ Hockridge and Easton were acquitted on the Oceanic Drug count, as were all three appellants on Counts Three, Four, Ten through Fourteen, Seventeen, Twenty and Twenty-one. The jury was discharged on February 18, 1977, without having reached verdicts on the remaining counts. ⁴

I. FACTS

From September, 1971, through the middle of June, 1972, Petri borrowed in excess of $1,300,000 from Chemical. ⁵ On over twenty occasions, loans were made to worthless corporations owned in whole or in part by a "mini-conglomerate" controlled by Petri known after November 24, 1971, as Cine-Prime Corp. Chemical ultimately lost over $1,100,000 on these loans.

Petri effected his scheme with the assistance of Hockridge who, as an assistant vice president and loan officer at Chemical, used his authority ⁶ to grant unsecured loans to Petri's corporations. Petri originally enticed Hockridge into the conspiracy by satisfying $35,000 in loans which the latter had previously approved to one Daniel Sheddrick. ⁷ Petri subsequently paid off $23,000 in overdue personal loans that Hockridge had approved to a codefendant, George Whitney. Petri also remunerated Hockridge more directly by diverting $14,000 of a $75,000 loan Hockridge had approved for one of Petri's companies to Hockridge's checking account in March, 1972. ⁸ Petri also provided Hockridge with other bribes and gratuities including, but not limited to, stock in Cine-Prime Corp. held by a nominee, a $3,000 mink coat for Hockridge's wife, sexual favors of a woman paid for the purpose, a pool table and golf clubs.

For all but two of the corporate loans approved by Hockridge, Easton, an officer in several of Petri's worthless companies, prepared unsigned corporate financial statements submitted to Chemical. Some of these listed non-existent assets. For example, Cord Automobile Co., acquired in bankruptcy for $100, was shown to have more than $260,000 in assets. One statement, that of Todays Stores Services, was dated even before the corporation was formed. Others were false in various particulars.

II. DISCUSSION

A. Sufficiency as to Hockridge

Only Hockridge disputes the sufficiency of the Government's proof. 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. Falcone, 544 F.2d 607, 610 (2d Cir. 1976), cert. denied, 430 U.S. 916, 97 S.Ct. 1329, 51 L.Ed.2d 595 (1977), we conclude that the evidence supports Hockridge's conviction on both the conspiracy and the substantive counts.

The Government's proof at trial focused on four areas. First, the evidence permitted the jury to find that Hockridge knew that the financial statements submitted on behalf of Petri's corporations were false. ⁹ Second, the jury properly could have found that Hockridge completed false or fictitious documents in connection with several of the loans. ¹⁰ Third, the Government's proof demonstrated that Hockridge knowingly violated the bank's "group credits rule" by approving loans in excess of his credit authority to two or more corporations controlled by the same party without approval of other lending officers. And finally, Hockridge received the substantial bribes and gratuities detailed above. ¹¹ Clearly, the evidence was more than sufficient.

B. Alleged Jury Bias or Misconduct

All three appellants assert that the jury was infected with prejudice before the deliberations even began. On the fifth day of an eight-week trial, Juror Number Three reported to the judge that several other jurors had remarked that the defendants were guilty. She noted, however, that the jurors were "not speaking about the case per se," whatever that meant. The district judge proceeded to interview each juror individually in camera. Several said that they had heard nothing of the kind, although six reported that someone had made a passing reference, in jest, to the subject of the defendants' guilt. Each averred that he or she would not form any opinion of guilt or innocence until all the evidence was presented. Each further recognized the necessity of not talking about the case.

In treating charges of jury misconduct, the trial judge is accorded broad discretion. United States v. Panebianco, 543 F.2d 447, 457 (2d Cir. 1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1129, 51 L.Ed.2d 553 (1977); United States v. Flynn, 216 F.2d 354, 372 (2d Cir. 1954), cert. denied, 348 U.S. 909, 75 S.Ct. 295, 99 L.Ed. 713 (1955); see Note, The United States Courts of Appeals: 1975-1976 Term Criminal Law and Procedure,65 Geo.L.J. 203, 370-71 (1976). A criminal trial is of course no place for bias or prejudice, even "in jest." And faced with the threat of bias, Judge Bonsal acted properly in conducting the in camera interviews. If one juror had been contaminated, the district judge's prompt action could have contained any spread of the taint. United States v. Torres, 519 F.2d 723, 727-28 (2d Cir.) ("expeditious" voir dire after defendants seen in handcuffs minimized harm where all jurors but one assured judge of continuing impartiality; unsure juror excused), cert. denied, 423 U.S. 1019, 96 S.Ct. 457, 46 L.Ed.2d 392 (1975); cf. United States v. Lord, 565 F.2d 831, 837-39 (2d Cir. 1977) (in camera individual interrogation of juror exposed to prejudicial publicity during trial required); United States v. Pfingst, 477 F.2d 177, 186 (2d Cir.) (individual jurors examined on exposure to prejudicial publicity), cert. denied, 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973); but cf. United States v. Taylor, 562 F.2d 1345, 1359-60 (2d Cir.) (omission to conduct individual voir dire where jury may have seen defendants in manacles not plain error), cert. denied sub nom. Salley v. United States, 432 U.S. 909, 97 S.Ct. 2958, 53 L.Ed.2d 1083 (1977).

Likewise, on the basis of the jurors' interview statements, it was not an abuse of discretion to continue the trial upon concluding that the jurors were not prejudiced, a determination which the district judge was in the best position to make. See United States v. Bando, 244 F.2d 833, 838 (2d Cir.), cert. denied, 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53 (1957); cf. United States v. Chiarizio, 525 F.2d 289, 293 (2d Cir. 1975) (factual findings at pretrial suppression hearing are reversible on appeal only if clearly erroneous); 3 C. Wright, Federal Practice and Procedure § 678, at 143 (1969) (same).

C. Juror Impeachment of Partial Verdict

Appellants' principal contention is best understood in its specific factual context. The jury began deliberations on Friday morning, February 11, 1977, and continued until 9:30 that evening. Reconvening on Monday morning, February 14, it deliberated until about 6:30 p. m. when the court informed counsel that it would exercise its prerogative under Rule 31(b) of the Federal Rules of Criminal Procedure ¹² to ask the jury whether it had reached a partial verdict. The jurors responded affirmatively, announcing their verdict of guilty on Count One. After the jurors were polled, the guilty verdicts were recorded. Deliberations resumed on Tuesday, February 15. At about 5:00 p. m., the judge received a note from Juror Number Four asking to see him, a request with which he did not immediately comply. The following morning at about 9:30 a. m. he received a note from Juror Number Three. She also sought a meeting with the judge, fearing that she had committed "a grave injustice" by rushing into the verdict.

With consent of counsel, the judge conducted an on-the-record in camera interview with Jurors Three and Four. During the questioning both jurors expressed their concern with the partial verdict. Juror Number Three believed that "there was not...