U.S. v. Ingraldi

• Decision Date: 16 June 1986
• Docket Number: No. 85-1677,85-1677
• Parties: UNITED STATES of America, Appellee, v. Peter F. INGRALDI, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 408

793 F.2d 408

UNITED STATES of America, Appellee, v. Peter F. INGRALDI, Defendant, Appellant.

No. 85-1677.

United States Court of Appeals, First Circuit.

Argued April 9, 1986.

Decided June 16, 1986.

William A. Brown, with whom Brown & Prince, Boston, Mass., was on brief, for defendant, appellant.

Peter A. Mullin, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

Defendant Peter Frank Ingraldi appeals his conviction on two counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and four counts of interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314. Defendant bases his appeal on three grounds: (a) that he was denied the right to a fair trial because the government failed to make timely disclosure of information indicating that its chief witness was a paid government informant; (b) that the district court should have entered a judgment of acquittal on the mail fraud counts of the indictment after the government's opening statement; and (c) that improper remarks made by the government prosecutor in his closing argument warranted the grant of a new trial. We affirm. The material facts are set out below.

Defendant owned a consumer electronics business in New York, Big H Sound, which was plagued by financial difficulties. The business ceased operations on December 22, 1979, after it was sued by several creditors and from that date on defendant began to broker merchandise on his own, working out of a truck. Sometime in 1977, defendant had developed close business ties with one James Studley (Studley), the owner of Sound Room, Inc., a consumer electronics business in Rockland, Massachusetts. When Big H Sound went out of business, defendant asked Studley to help him get back on his feet and to order some merchandise from Samsung Electronics America (Samsung), an Illinois-based firm, on his behalf. Defendant had made an unsuccessful attempt to order merchandise from Samsung for Big H Sound in the past.

On January 6, 1980, defendant and Studley attended a Consumer Electronics Show together in Las Vegas, Nevada. While there, they entered into an agreement with representatives of Samsung to purchase over one million dollars worth of Samsung merchandise between January and June, 1980. The agreement provided that Sound Room would pay for the Samsung merchandise in two stages, paying a fifty percent down payment each time it placed an order and the balance within thirty days. Defendant posed as a newly hired buyer of Studley's company, Sound Room, and was introduced under the alias Ryan Peterson. Studley told the Samsung representatives that defendant would have the authority to order goods on behalf of Sound Room. According to the evidence elicited at trial, defendant and Studley had first arranged between themselves that defendant would order goods from Samsung in the name of Sound Room and then repurchase them after they were delivered, with a small mark up to Studley.

Defendant subsequently gave three separate orders for Samsung merchandise pursuant to the agreement. On January 16, 1980, he ordered $145,198 worth of goods from Samsung representatives when they came to Sound Room's offices in Rockland, Massachusetts. He gave the representatives a Sound Room check signed by Studley for half that amount, to cover the down payment. The goods were shipped from Bensonville, Illinois, to Sound Room on January 29, 1980. On February 6, 1980, defendant ordered $168,583 worth of goods. This time he paid the 50% down payment by Sound Room check signed by him under the alias Ryan Peterson. These goods were shipped to Sound Room in two shipments, one from Seattle, Washington, and the other from Bensonville, Illinois, on February 8, 1980. Defendant's third order was for $275,000 worth of goods and was placed on February 13, 1980. Defendant wrote two Sound Room checks for the down payment and signed both of them Ryan Peterson. This last order was never shipped, however, because the Sound Room checks had begun to bounce. The check for the first order's down payment bounced once before it cleared and the check for the second order's down payment never did clear.

The repurchase agreement between the defendant and Studley fell apart in similar circumstances. Defendant wrote Studley seven Big H Sound checks in the month of February for a total of $352,250 in purported payment for the Samsung merchandise. All seven checks bounced. The evidence at trial showed that Big H Sound had a balance of less than $700 in the bank on which those checks were drawn at the time they were written and that no deposits were ever made to cover them. Defendant never made good on any of the checks.

Defendant was interviewed concerning these activities in June, 1980, by F.B.I. Special Agent Clatanoff (Clatanoff). In response to questioning, he admitted that he had accompanied Studley to Las Vegas, that he had helped him negotiate the agreement with Samsung, and that he had used the alias Ryan Peterson in doing so. He said he used the alias in part to avoid having Sound Room connected to Big H Sound with which his name was associated. When Clatanoff presented him with a copy of the Sound Room check he had signed as Ryan Peterson for the second order of Samsung goods, he admitted that he had written it, though he claimed to have done so with Studley's knowledge and approval. Defendant also admitted that he later exchanged the Samsung merchandise for consumer electronic goods of equal value with a consumer electronics company in New York, and that he then sold the goods obtained in the exchange for cash. He admitted that he had given Studley seven bad checks and had not used the cash subsequently obtained for the goods to repay Studley because he had to pay off some other debts first.

Following this interview, defendant was indicted for interstate transportation of stolen goods and mail fraud. The shipments of the Samsung merchandise formed the basis for the interstate transportation of stolen goods counts, and the mail fraud charges were based on the invoices that accompanied these shipments. At trial, defendant disputed that any of those invoices had ever been mailed. Defendant's position on the other counts was that Studley was the chief perpetrator of the offenses charged, that he was only a minor participant, and that he should not have been indicted when Studley went free.

I. DELAYED DISCLOSURE OF BRADY MATERIAL

Prior to trial, defendant filed a motion for exculpatory evidence which included a request for disclosure of any money or property paid to witnesses. Defendant also filed motions for the disclosure of (1) any rewards, promises or inducements given to any witnesses, and (2) the identity of any informants providing information relied on by the government to arrest the defendant. The government's consolidated response to these motions stated that there were no informants in the case and that no promises, rewards or inducements had been given to any witness.

One day prior to the scheduled start of trial the defendant served subpoenas on the Small Business Administration (SBA) and the Federal Bureau of Investigation (FBI), ordering them to produce documents relating to Studley at trial. The government had previously identified Studley as a prospective witness and provided the defendant with copies of reports of two interviews with Studley, the transcript of his testimony in a related civil case and the results of a criminal-records check. The government moved to have these subpoenas quashed or modified and the court agreed to inspect the material the government deemed answerable to the subpoenas in camera.

After inspecting this material, the court ordered the government to produce a number of files. The files material to this appeal are: an FBI file relating to a 1973 investigation of alleged fraud involving Studley's personal bankruptcy; an FBI file relating to a 1979 investigation of alleged bankruptcy fraud involving House of Radios, a business once owned by Studley's wife and managed by Studley; and an FBI confidential informant file relating to Studley.

The first of these files was opened after the trustee in bankruptcy alleged various false statements by Studley when he filed for personal bankruptcy on January 26, 1973. The investigation did not result in prosecution. The bankruptcy fraud investigation described in the second file was also closed without prosecution because the business had been sold to a third party and remained in operation for a period of time before bankruptcy was declared. The confidential informant file indicated that an informant with the code name "Sparks," identified at trial as Studley, had provided information to Clatanoff on July 19, 1979, about the theft of stereo receivers from Bose Corporation in Framingham, Massachusetts. The file showed that Studley was then designated by Clatanoff as a confidential informant and that he met with Clatanoff on five other occasions between July 19 and December 12, 1979. On those occasions he provided further information on the Bose receivers as well as information about the hijacking of some Whistler radar detectors and the plans of two individuals to perpetrate a bankruptcy "bust-out" scheme. ¹ The file also showed that Studley recovered six of the stolen Bose receivers on December 12, and received $300 from Clatanoff on December 12, for services rendered from July 19 to December 6, 1979.

It was five days into the trial when these files were turned over to the defendant. Defendant promptly moved to dismiss the indictment for failure of the government to produce this information prior to trial. Defendant now appeals the denial of that motion. He maintains that the delayed disclosure of this material prejudiced him in two ways: that it prevented him from making an informed decision as to...