U.S. v. Inserra

• Decision Date: 01 September 1994
• Docket Number: Nos. 1627,D,1628,s. 1627
• Citation: 34 F.3d 83
• Parties: UNITED STATES of America, Appellee, v. George A. INSERRA; John Inserra and John Giura, Defendants, Dennis Giorgi, Defendant-Appellant. ockets 93-1658, 93-1659.
• Court: U.S. Court of Appeals — Second Circuit

Page 83

34 F.3d 83

UNITED STATES of America, Appellee, v. George A. INSERRA; John Inserra and John Giura, Defendants, Dennis Giorgi, Defendant-Appellant.

Nos. 1627, 1628, Dockets 93-1658, 93-1659.

United States Court of Appeals, Second Circuit.

Argued May 19, 1994.

Decided September 1, 1994.

John J. Brunetti, Syracuse, NY, for defendant-appellant.

Joseph A. Pavone, Asst. U.S. Atty., Syracuse, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., Kevin E. McCormack, Asst. U.S. Atty., of counsel), for appellee.

Before: LUMBARD, MESKILL and MINER, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant Dennis Giorgi appeals from a judgment of conviction and sentence entered on September 21, 1993 in the United States District Court for the Northern District of New York (Munson, J.), after a jury trial, convicting him of two counts of making a false statement in a matter within the jurisdiction of a department or agency of the United States, in violation of 18 U.S.C. Sec. 1001. The district court sentenced Giorgi to concurrent eight-month prison terms and imposed a $100 special assessment. Giorgi also appeals from a judgment revoking his probation on a 1989 conviction for tax evasion and sentencing him to a four-month prison term for the underlying tax evasion offense consecutive to the eight-month sentence. On appeal, Giorgi raises numerous challenges to his conviction and revocation of probation, including (1) the inapplicability of section 1001 to the false statements made in this case, (2) the erroneous admission of evidence, and (3) the impropriety of the court's reasonable doubt instruction. For the reasons that follow, we affirm.

BACKGROUND

Giorgi was convicted in 1989 of various offenses in connection with a scheme to defraud a local teamsters' union and its pension fund. These offenses included participating in a RICO conspiracy, in violation of 18 U.S.C. Sec. 1962(d), soliciting and conspiring to solicit kickbacks in connection with the pension fund, in violation of 18 U.S.C. Sec. 1954, tax evasion, in violation of 26 U.S.C. Sec. 7201, and making false statements to the United States Department of Labor, in violation of 18 U.S.C. Sec. 1001. The section 1001 violation involved an oral misrepresentation made by Giorgi to a Labor Department investigator.

In June of 1989, Giorgi was sentenced to an eighteen-month prison term and fined $10,000 on the RICO count. On the section 1001 and kickbacks counts, he was sentenced to eighteen-month prison terms to run concurrent with the RICO count. Also, Giorgi was sentenced on the tax evasion count to a one-year-and-one-day prison term and fined $10,000. However, the district court suspended the service of the prison term on this count. Finally, Giorgi was sentenced to a three-year term of probation to follow his release from prison. Included in the conditions of probation were the requirements that Giorgi "refrain from violation of any law (federal, state or local)" and "follow the probation officer's instructions and report as directed." Special conditions of probation also required Giorgi to pay the total $20,000 fine within six months of the commencement of probation.

In an indictment filed on May 6, 1993, Giorgi was charged with three counts of making false statements and representations, in violation of 18 U.S.C. Sec. 1001. Each of the counts in the indictment alleged that the statements were made as to "a matter within the jurisdiction of the United States Probation Office for the Northern District of New York, an agency of the United States." According to the allegations in the indictment, Giorgi falsified his monthly probation supervision reports in March, April and May of 1992 by indicating that he neither owned nor drove any vehicles, when, in fact, he both owned and drove a 1978 Porsche worth $25,000.

At trial, the Government produced substantial evidence demonstrating that Giorgi had filed false reports with the Probation Office regarding his ownership and operation of a motor vehicle. Three Probation Officers, Deputy Chief Probation Officer Paul DeFelice, Deputy Probation Officer Kathryn Warner and Deputy Probation Officer Ronald Hess, testified about their supervision of Giorgi and the requirement that probationers submit a monthly probation report known as a "Probation Form 8." The Government also introduced certain documentary evidence, including the Conditions of Probation document signed by Giorgi prior to his release from prison in 1990 and the three Probation Form 8 reports submitted by Giorgi for the months of March, April and May 1992. Each of the reports required Giorgi to "list all vehicles owned or driven by [the defendant]." On the March form Giorgi listed "N/A" and on the April and May forms he listed "None." The indictment and judgment from the 1989 case also were introduced by the Government.

The Government produced five witnesses who testified that Giorgi owned or drove a 1978 Porsche before and during the time in question. In particular, Yvonne Kelly testified about a meeting that she and her husband had with Giorgi in January of 1992. The purpose of the meeting, according to Kelly, was to discuss "a land deal that kind of went sour." During the meeting, Giorgi informed the Kellys that "he owned a very expensive sports car" and that "he had it stashed in a garage somewhere because he couldn't have ownership of it because of the fact that he had a problem with taxes, or something like that." Upon prompting by the prosecutor, Kelly explained that while she and her husband had invested $18,000 in a partnership with Giorgi to purchase a piece of property adjacent to Kelly's lumber yard, they had nothing to show for it.

Giorgi did not testify in his own defense but called three witnesses. John Gorea, general manager of the car dealership where Giorgi worked during the time in question, testified that the Porsche was listed in the dealership registry. Special Agent William F. Yetman, Jr. of the Federal Bureau of After the presentation of evidence, the district court instructed the jury. In its instructions on the issue of reasonable doubt, the court stated that "[i]f you as a jury view the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, you as a jury should, of course, adopt the conclusion of innocence." On July 22, 1993, the jury convicted Giorgi on all three counts. The district court later dismissed Count 1 of the Indictment on August 3, 1993 for insufficient evidence, having determined that the response of "N/A" on the March 1992 probation report did not constitute a false statement or representation under section 1001. On August 4, the Probation Office filed a petition for revocation of Giorgi's probation on the 1989 tax evasion conviction.

Investigation described his investigation of Giorgi. Deputy Probation Officer Lori Albright testified about her supervision of Giorgi as a probationer and described certain United States Probation Office procedures.

On September 21, 1993, the district court sentenced Giorgi to concurrent eight-month terms of imprisonment on the section 1001 counts and imposed a $100 special assessment. Immediately following the sentencing hearing, the court held a probation revocation hearing. The court found that Giorgi had violated Condition 1 of the Conditions of Probation imposed after his 1989 conviction by his "failure to 'refrain from violation of any law', which is evidenced by [his] July 22, 1993 conviction of Counts 2 and 3 of Indictment 93-CR-152, both charging Making False Statements." The court revoked Giorgi's probation and imposed a four-month prison term consecutive to the eight-month prison term for the section 1001 violations and ordered that the $10,000 fine on the tax evasion count be paid immediately.

DISCUSSION

1. Submission of False Statements and 18 U.S.C. Sec. 1001

Giorgi asserts that he did not make false statements in a "matter within the jurisdiction of any department or agency of the United States" within the meaning of 18 U.S.C. Sec. 1001. He first argues that the United States Probation Office for the Northern District of New York is not a "department or agency." We disagree.

The terms "department" and "agency," as used in Title 18, are defined in section 6 as follows:

The term "department" means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government.

The term "agency" includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.

18 U.S.C. Sec. 6. It is clear that the terms "department" and "agency" in the context of section 1001 include all three branches of the government. See United States v. Bramblett, 348 U.S. 503, 509-10, 75 S.Ct. 504, 508, 99 L.Ed. 594 (1955). Moreover, in addressing section 1001 the Supreme Court has admonished that the statutory language "calls for an unrestricted interpretation," id. at 509, and that it should not be given a narrow or technical meaning, see United States v. Rodgers, 466 U.S. 475, 480, 104 S.Ct. 1942, 1946, 80 L.Ed.2d 492 (1984). Indeed, "[s]ection 1001 is a statute of general applicability, designed to protect a 'myriad [of] governmental activities.' " United States v. Hansen, 772 F.2d 940, 943 (D.C.Cir.1985) (Scalia, J.) (quoting Rodgers, 466 U.S. at 480, 104 S.Ct. at 1946); see United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598 (1941) (section 1001 designed "to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described").

The statute has been applied in cases involving the...