U.S. v. Hutcher, s. 910

• Decision Date: 05 May 1980
• Docket Number: 919,Nos. 910,D,s. 910
• Citation: 622 F.2d 1083
• Parties: 5 Fed. R. Evid. Serv. 1146 UNITED STATES of America, Appellee, v. Eddie HUTCHER and Stephen Mydanick, Defendants-Appellants. ockets 79-1277, 79-1426.
• Court: U.S. Court of Appeals — Second Circuit

Page 1083

622 F.2d 1083

5 Fed. R. Evid. Serv. 1146

UNITED STATES of America, Appellee, v. Eddie HUTCHER and Stephen Mydanick, Defendants-Appellants.

Nos. 910, 919, Dockets 79-1277, 79-1426.

United States Court of Appeals Second Circuit.

Argued March 20, 1980.

Decided May 5, 1980.

Lewis R. Friedman, New York City (Litman, Friedman, Kaufman & Asche, New York City, Richard M. Asche, Herman Kaufman, Jack T. Litman and Russell M. Gioiella, New York City, of counsel), for defendant-appellant Hutcher.

John H. Doyle, III, Asst. U. S. Atty., New York City (William M. Tendy, U. S. Atty., S. D. N. Y., Lee S. Richards and Gregory L. Diskant, Asst. U. S. Attys., New York City, of counsel), for appellee.

Markewich, Rosenhaus, Markewich & Friedman, P. C., New York City (Daniel Markewich and Gary Brown, New York City, of counsel), for defendant-appellant Mydanick.

Before LUMBARD, MULLIGAN and OAKES, Circuit Judges.

LUMBARD, Circuit Judge:

Eddie Hutcher and Stephan Mydanick appeal from judgments of conviction for conspiring to defraud the United States in violation of 18 U.S.C. § 371, for making false statements to the Small Business Administration (SBA) in violation of 18 U.S.C. § 1001, and, as to Hutcher only, for bribing an SBA loan officer in violation of 18 U.S.C. § 201(b). The judgments were entered in the Southern District of New York by Judge Brieant on November 9, 1979 and July 24, 1979, respectively, following separate jury trials. Hutcher claims that the prosecution improperly cross-examined a defense witness, improperly referred to that cross-examination in its rebuttal summation, and failed to fulfill its obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the Jencks Act, 18 U.S.C. § 3500. Mydanick claims that the district court erred in charging the jury and in relying upon materially incorrect information in sentencing. We affirm both judgments.

I.

Neither Hutcher nor Mydanick questions the sufficiency of the evidence supporting his conviction. We therefore rehearse that evidence synoptically.

Hutcher was a principal of Astor Metal Products, a Brooklyn-based company which in 1973 was seeking an SBA-guaranteed loan. ¹ Mydanick, his law partner Frank Crisona, John Ebbecke, an acquaintance of Mydanick and a former banker, and David Koch, a lawyer with some influence at the Vanguard National Bank on Long Island, all agreed to assure to Astor Metal through fraud and bribery a bank loan, an SBA loan-guarantee, and necessary interim loans. In return, Hutcher agreed to pay them a fee of $35,000, which equalled 10% of the amount of Astor Metal's loan. Thereafter, Hutcher, Mydanick, Crisona, and Ebbecke, in preparing Astor Metal's loan-guarantee application, inflated the company's financial statements, reported only $2,800 of the $35,000 "finders' fee" to be paid, ² failed to report, of course, the intended bribes, and falsely reported Astor Metal's intended use of the loan. Mydanick signed the application as the attorney of record, and Ebbecke submitted it to the SBA.

To the finders' chagrin, the SBA rejected Astor Metal's application. They recommended to Hutcher that he personally talk to the SBA loan-officer in charge of applications from Long Island banks, Kenneth Senhouse. Hutcher did, and offered Senhouse $10,000 to approve Astor Metal's application, which was then re-submitted. Senhouse approved it. At a lunch attended by Hutcher, Senhouse, and Crisona, Hutcher paid Senhouse $5,000 and promised to pay the rest of the bribe upon the loan's closing.

Astor Metal received the $350,000 loan in March 1974. It used the money to satisfy its debt upon another loan not, as stated in the loan-guarantee application, to acquire and repair machinery and it never repaid Vanguard National Bank, which then demanded and received payment from the SBA. Astor Metal entered bankruptcy proceedings in 1976. Because all of Astor Metal's assets were covered by pre-existing liens when it liquidated in 1978, the SBA never recovered any of the $337,628 it paid to Vanguard pursuant to the guarantee. Moreover, Mydanick, Crisona, Ebbecke, and Koch never received their $35,000 fee, for Hutcher, stating that they had not earned it, refused to pay them.

In 1978, Crisona agreed to cooperate with the government in prosecuting this fraud and bribery. Crisona tape-recorded conversations with Mydanick and Hutcher during which each admitted his role in the conspiracy. Crisona also, along with Ebbecke, testified for the prosecution at Hutcher's and Mydanick's trials.

II.

Hutcher claims that the prosecution acted improperly in cross-examining a witness and in failing to make available certain evidence. Mydanick claims that the district court erred in charging the jury and in sentencing. We will recite seriatim the facts material to our discussion of each claim.

A.

Hutcher's first claim is that the prosecution improperly cross-examined Senhouse by asking him whether, in connection with investigations unrelated to Hutcher's trial, he had been questioned by the FBI or before a federal grand jury about his alleged receipt of bribes and that the prosecution improperly referred to that cross-examination in its rebuttal summation.

Prior to the prosecution's cross-examination of Senhouse, the defense pointed out in its opening statement to the jury that Senhouse still worked at the SBA and had never been indicted despite the prosecution's assertion that he accepted Hutcher's bribe. Also, in its direct examination of Senhouse, the defense elicited that neither the FBI nor the United States Attorney's Office had ever asked Senhouse whether he received a bribe from Hutcher, and that Senhouse had not been asked to testify before the grand jury investigating the allegations against Hutcher. During cross-examination, the following occurred:

"Q: Have you been interviewed by the FBI in connection with other allegations about the receipt of bribes?

A: Yes, sir.

MR. HOLLMAN: I will object to that.

COURT: Overruled.

A: Yes, sir."

The prosecution then elicited, without any further defense objection, that before the Hutcher investigation Senhouse had denied five allegations, put to him either by the FBI or before a federal grand jury, that he had received bribes in return for approving loan guarantee applications.

The defense elicited from Senhouse on redirect examination that Senhouse, after his last appearance before the grand jury in March 1976, had always been available to answer questions, but had never been asked whether he knew Crisona. Also, in its summation, the defense suggested that Hutcher had been indicted because the prosecution's "faulty investigation" had failed to discover that Senhouse would deny knowing Crisona and would deny receiving Hutcher's bribe. During rebuttal summation, to none of which the defense objected, the prosecution conceded that Senhouse should perhaps have been questioned, but then rhetorically asked, "(W)hat does that have to do with the guilt or innocence of Eddie Hutcher? What difference would it have made to the FBI or the grand jury if Mr. Senhouse had gone in and given another set of denials?" The prosecution also asked the jury to consider whether, after viewing Senhouse and hearing his testimony, they would be deflected from an investigation by his denials.

Hutcher's claim that the prosecution's cross-examination and rebuttal summation were improper cannot avail him on appeal, for the single, general objection made at trial did not preserve this claim for appeal under Fed.R.Evid. 103(a) and the admission of the prosecution's questioning and statements in summation did not constitute plain error of which we may take notice, even absent objection, under Fed.R.Evid. 103(d) and Fed.R.Crim.P. 52(b). Rule 103(a) states, "Error may not be predicated upon a ruling which admits . . . evidence unless a substantial right of the party is affected and . . . a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context . . . ." This circuit ordinarily applies Rules 103(a) strictly, United States v. Rubin, 609 F.2d 51, 62-63 (2d Cir. 1979); United States v. Maultasch, 596 F.2d 19, 24 (2d Cir. 1979) (the claim of error was "unavailing" because defense "made no objection that clearly stated the specific ground now asserted on appeal"). Indeed, well before Rule 103(a) existed, this circuit followed the principle that Rule 103(a) incorporates: "a general objection, if overruled, cannot avail the objector on appeal." 1 Wigmore on Evidence § 18, at 332 (emphasis original); see, e. g. United States v. Del Llano, 354 F.2d 844, 847 (2d Cir. 1965) (en banc); United States v. Indiviglio, 352 F.2d 276, 279 (2d Cir. 1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

Hutcher's only objection "I will object to that" obviously did not state a specific ground. Nor was the specific ground of objection "apparent from the context," for nothing in the record suggests that the trial judge or prosecution were already aware of the specific ground, Wright & Graham, Federal Practice and Procedure: Evidence § 5036, at 177-78; cf. United States v. Check, 582 F.2d 668, 675-76 (2d Cir. 1978); United States v. Camporeale, 515 F.2d 184 (2d Cir. 1975), that the defense failed to object specifically because the trial judge silently understood the ground, Wright & Graham, supra, at 182; cf. United States v. McPartlin, 595 F.2d 1321, 1353 (7th Cir.) cert. denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979), or that the specific ground of objection was for any other reason apparent from the context.

Hutcher asserts that the first objection must be deemed sufficient because any objection after the first would only have attracted the jury's attention to the purportedly improper evidence. However, that possibility does not suffice to excuse noncompliance with Rule 103(a). Motions to...