U.S. v. Hutchings, 723
| Decision Date | 25 February 1985 |
| Docket Number | D,No. 723,723 |
| Citation | 757 F.2d 11 |
| Parties | 17 Fed. R. Evid. Serv. 860 UNITED STATES of America, Plaintiff-Appellee, v. Robert HUTCHINGS, Defendant-Appellant. ocket 84-1331. |
| Court | U.S. Court of Appeals — Second Circuit |
Robert Gage, Asst. U.S. Atty., New York City (Rudolph W. Giuliani, U.S. Atty. for the S.D.N.Y., Benito Romano, Asst. U.S. Atty., New York City, of counsel), for plaintiff-appellee.
Phylis Skloot Bamberger, The Legal Aid Society, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.
Before LUMBARD, NEWMAN and KEARSE, Circuit Judges.
Robert Hutchings appeals from a judgment of conviction entered on September 19, 1984 in the Southern District, Robert L. Carter, Judge. After a four-day jury trial, Hutchings was found guilty of interstate wire fraud in violation of 18 U.S.C. Sec. 1343 (Counts One through Three) and making false statements in a loan application to a bank, the deposits of which were insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. Sec. 1014 (Count Four). Judge Carter sentenced Hutchings to consecutive five-year terms of imprisonment on Counts One and Two, a five-year term of imprisonment on Count Three and a two-year term of imprisonment on Count Four. The sentences on Counts Three and Four were to run concurrently with the sentence on Count Two. Judge Carter also imposed fines of $1,000 on each of Counts One through Three and $5,000 on Count Four as well as the costs of prosecution.
Hutchings seeks reversal of his conviction on the ground that certain testimony by a government agent was improperly admitted into evidence. Hutchings also challenges the sentence he received. We affirm Hutchings' conviction but remand to Judge Carter for resentencing.
The government's investigation into the activities of Robert Hutchings commenced when the F.B.I. received a complaint about an attempt by Hutchings to purchase La Jolla Oil and Mineral, an oil company located in Texas. FBI Agent Vincent Wincelowicz posed as a financial consultant from New York City who would assist Hutchings in obtaining the financing for the acquisition of companies through the "rental" of letters of credit and bank loans supported by fraudulent collateral.
In a telephone conversation on March 24, 1983, Hutchings asked Agent Wincelowicz to have created a fraudulent $800,000 standby letter of credit that was to be used to prevent the Clayton Metro Bank in St. Louis, Missouri, from foreclosing on his residence and a fast-food franchise in which he had invested. Hutchings again asked Wincelowicz, on April 12, 1983, to have a fraudulent letter of credit for between $4.5 to $4.6 million created to facilitate the purchase of several companies. Agent Wincelowicz did not produce either letter of credit.
As part of his continuing effort to obtain large sums of money through fraudulent means, Hutchings, with the assistance of Agent Wincelowicz and a William Breen, who was assisting the FBI, participated in negotiations with cooperating employees of Chemical Bank for a $5 million loan. In connection with the loan application, Hutchings completed a "Statement of Financial Condition." He listed his occupation as President of Eagle Pacific Holding Company ("Eagle") and indicated that he owned 100,000 shares of Eagle Stock with a market value of $19,335,642. At trial, the Vice President of Eagle testified that in March of 1983, Eagle had a net worth of zero. Furthermore, Hutchings listed his total assets as $21,584,863 and his net worth as $17,454,863. The documentation submitted by Hutchings in support of his application purported to represent his ownership in various properties but were, in fact, worthless financial documents, geological surveys, stock certificates, leases, engineers' reports, etc., which had been collected by Hutchings during unsuccessful attempts to purchase such properties. 1
Following the submission by Hutchings of the loan application and the financial statement on April 18, 1983, Chemical Bank approved the loan, and a demand note of $5 million was produced which Hutchings executed as guarantor. On the same day, Hutchings was arrested before he could negotiate the note.
The evidence presented at trial by the government included tape recordings of Hutchings' conversations, documentary evidence, and the testimony of the F.B.I. agents and eight businessmen whom Hutchings induced to surrender financial and business records.
Hutchings called no witnesses. 2
Agent Wincelowicz, during his testimony, defined several terms peculiar to confidence schemes involving negotiable instruments which were used by Wincelowicz or Hutchings during recorded conversations. For example, Wincelowicz defined a "player" as a confidence man and "stand-up paper" as financial paper that looked as if it could be negotiated in a bank.
Judge Carter's admission of the testimony as to what the terms meant to Wincelowicz was a proper exercise of his discretion. See United States v. Fayer, 573 F.2d 741, 747 (2d Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978). Hutchings and Wincelowicz were speaking of financial transactions in terms which might well not be understood by many members of the jury. There was good reason for the court to believe that an explanation of the terms used in the conversations would assist the jury in considering and assessing this evidence. See United States v. Carson, 702 F.2d 351, 369-70 (2d Cir.) (testimony of agents as to matters within their expertise held admissible when it assists the trier of fact to understand the evidence), cert. denied, 462 U.S. 1108, 103 S.Ct. 2457, 77 L.Ed.2d 1335 (1983).
Hutchings challenges his sentence on the ground that, in imposing sentence, Judge Carter impermissibly considered Hutchings' decision to stand trial rather than plead guilty. On July 26, 1984, immediately after the jury found Hutchings guilty, Judge Carter stated that the trial had been a Counsel was then asked whether "in view of the fact that this was a needless expenditure of public funds, ... I can consider that in sentencing." Judge Carter also inquired whether Hutchings could be "taxed for the expenses of this prosecution." Defense counsel immediately objected stating that "Mr. Hutchings has a constitutional right to have a trial in a criminal matter." Judge Carter acknowledged the objection but stated that he believed he could take the needless expenditure of funds into consideration.
By letter dated August 17, 1984, the government advised Judge Carter that costs could be imposed and "[a]lthough a defendant may not be penalized for going to trial, the Court may consider the nature of the evidence presented against...
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§ 24.03 Subject Matter: Expertise Not Needed
...(D.C. Cir. 1970).[16] E.g., United States v. Alonso, 48 F.3d 1536, 1541 (9th Cir. 1995) (credit card fraud); United States v. Hutchings, 757 F.2d 11, 13 (2d Cir. 1985) (confidence schemes).[17] E.g., United States v. Amuso, 21 F.3d 1251, 1263 (2d Cir. 1994) (FBI agent's testimony concerning......
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§ 24.03 SUBJECT MATTER: EXPERTISE NOT NEEDED
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