U.S. v. Lamont, 1226

• Decision Date: 28 October 1977
• Docket Number: D,No. 1226,1226
• Citation: 565 F.2d 212
• Parties: UNITED STATES of America, Appellee, v. Anne LAMONT, Defendant-Appellant. ocket 77-1118.
• Court: U.S. Court of Appeals — Second Circuit

Page 212

565 F.2d 212

UNITED STATES of America, Appellee, v. Anne LAMONT, Defendant-Appellant.

No. 1226, Docket 77-1118.

United States Court of Appeals, Second Circuit.

Argued May 26, 1977.

Decided Oct. 28, 1977.

Neal J. Hurwitz, New York City (Segal & Hundley, Douglas F. Eaton, Lawrence S. Bader, New York City, on the brief), for defendant-appellant.

Steven M. Schatz, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., John S. Siffert, Frederick T. Davis, Asst. U. S. Attys., New York City, of counsel), for the appellee.

Before FEINBERG and DANAHER, Circuit Judges, ^* and DOOLING, District Judge. ^**

DANAHER, Senior Circuit Judge:

Basically, the indictment charged that Defendant had devised schemes and artifices to defraud and intended so to defraud, certain victims hereinafter named and from them, to obtain money by means of false and fraudulent pretenses and representations. The respective counts alleged the use of the mails and wire communications in furtherance of her operations in violation of 18 U.S.C. §§ 1341, 1343 and 2314. ¹

During the course of a three-week jury trial, the Government presented its case through some twenty-three witnesses. Testimony The Government argued that Defendant never intended to and never did repay the respective sums, so mulcted. Defendant chose not to testify.

developed that in the successful execution of her plans, ² Defendant obtained from one John Barry of Toronto the sum of $60,000., and, from a West Virginia bank, ³ she further secured a total of $225,000. That she received such funds as stated has never been denied.

Defense counsel through cross-examination and argument sought to inject an element of reasonable doubt and, particularly, to develop a lack of intent on her part in the execution of her plans. Thus, Defendant here has contended that if she "was acting in good faith at the time she obtained the money and at the time she caused the jurisdictional acts, ⁴ she was innocent of the crime charged."

We do not in this case have what Chief Justice Warren identified as the familiar pattern of the "confidence game." ⁵ Rather the jury here could have perceived this Defendant as a glib, sophisticated figure, trained in the financial world and knowledgeable in the techniques and routine of banking and investment practices, even on the international front. We need not at this point interpolate the details of the evidence underscoring such permissible conclusions. But we may turn back a century and a half and note the words of Mr. Justice Story in Wood v. United States, 41 U.S. (16 Peters) 342, 360-361, 10 L.Ed. 987 (1842):

. . . fraud, being essentially a matter of motive and intention, is often deducible only from a great variety of circumstances, no one of which is absolutely decisive; but all combined together may become almost irresistible as to the true nature and character of the transaction in controversy . . . .

. . . it is a general principle of law, that whenever a fraudulent intention is to be established, collateral facts tending to show such intention are admissible proof.

The trial judge here alertly identified the core issue to be resolved by the jury. Taking account precisely of what he perceived to be the strategy ⁶ of Defendant's counsel, the judge instructed the jury:

The defendant in this case argues through her counsel by her plea of not guilty, by her arguments in the case and by the proof in the case that she acted in good faith. It is up to you to decide whether that is the case or not. And if you decide that the defendant did act in good faith throughout all these transactions, it is your duty to acquit the defendant on all counts.

A defendant has no burden to establish a defense of good faith, however. The burden is on the Government to prove However misleading or deceptive a plan may be, it is not fraudulent if it was devised and executed in good faith with an honest belief in the truth of the representations made . . . .

fraudulent intent and consequent lack of good faith beyond a reasonable doubt.

The jury returned a guilty verdict on seven of the eight counts set up in the indictment. ⁷ Unless it shall hereinafter appear that there was error affecting substantial rights of this Defendant, we will be bound to affirm her conviction. We so approach our consideration of the claims urged upon us.

It is not for a reviewing court to weigh the evidence or to determine the credibility of witnesses. The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). See also United States v. Kahaner, 317 F.2d 459, 467-468 (CA 2), cert. denied, 375 U.S. 836, 84 S.Ct. 74, 11 L.Ed.2d 65 (1963).

We turn now to the background.

FACTUAL SUMMARY

A

Compendiously to be stated, the background here may first identify a professor and author, one John Stoessinger, who formerly had been Acting Director of Political Affairs at the United Nations and Director of the Institute of the United Nations at City University of New York. During a developing love affair between Stoessinger and Defendant, the latter convinced Stoessinger that because of her prior employment with RCA, she could and would arrange for RCA to distribute to its employees and clients some 400,000 copies of Stoessinger's book "Nations in Darkness." At Defendant's direction and largely reflecting her own dictation, Stoessinger signed and turned over to Defendant various letters of recommendation.

Prepared on the stationery of United Nations and City University, the letters depicted Defendant's international financing reputation. Such letters additionally "certified that Miss Anne Lamont has been a member of the Peace Research Unit of the Political Affairs Division of the United Nations. . . . " Moreover, it was thus represented that "Miss Lamont has already performed valuable services in this connection." In truth, Defendant had not performed any valuable services for the Peace Research Unit. Some of these letters were to play a part in advancing Defendant's plans.

It developed that over the period of Defendant's dealings hereinafter discussed, Stoessinger received from Defendant some $80,000., ostensibly as advances against the proceeds to be realized from the distribution of Stoessinger's book.

B IN RE VICTIM JOHN BARRY

John Barry had acquired in Toronto, Canada, interests in Studio Center Ltd., hereinafter Studio, a facility for the production of motion pictures and television programs. To bolster the lagging finances of Studio and in an effort to secure current financing in the amount of $600,000., Barry enlisted the services of one Warren Rubel, an investment banker. The latter was already acquainted with Defendant.

Rubel and Defendant met in New York to discuss the Studio project. Defendant then assured Rubel that she saw no real problem and that she could easily provide ⁸ the desired financing with the chief difference that she set up a target, not of $600,000. but of $2,000,000. for Studio.

Defendant early in 1973 visited Studio Center in Toronto, toured the facilities, met with the Manager of the Bank of Montreal and gave assurances that there would be no serious difficulty in arranging the loan.

Shortly after her return to New York Defendant telephoned to Barry requesting him to come to New York. There she supplied details concerning Dr. Stoessinger and his status at the United Nations. She envisioned the latter as serving on Studio's board of directors and contemplated aloud that Studio could make films based upon numerous books which had been authored by Stoessinger. She presented Barry with two of the Stoessinger letters previously mentioned, written on stationery of United Nations and of City University. She told Barry that she had contacts with European banks, had arranged loans for foreign countries, and had millions of dollars in commissions due to her.

It just so happened that Barry joined Stoessinger and Defendant for a dinner evening during which discussion included the possibilities of Stoessinger's doing educational television from the Studio.

The following day after assuring Barry that the "financing was all arranged," Defendant made it clear that for a short period she would need the sum of $50,000. to be used in Europe to clear up financial barriers and that she would require $10,000. as a loan for herself. Not to be omitted, in the background, was her agreement to accept a commission of ten per cent of the finances to be made available to Studio.

So it was that Barry flew to Toronto, there obtaining through the Bank of Montreal a $60,000. draft made payable to himself.

When Barry returned to New York and met with Defendant, she suggested that she needed the funds at once in order to wire funds to Switzerland. She inspired Barry's phone call to Toronto to ascertain how the matter could be expedited. The Bank of Montreal sent a telex to its agency in New York to permit the $60,000. Canadian bank draft to be converted to a $60,000. check in United States currency. That check Defendant caused to be made payable to Operations Multi-National, a company owned by Defendant.

Lamont thereupon told Barry that with the financing so arranged "we are going to sign the papers in Europe," but no such financing had been arranged and Defendant had not wired funds to Europe. ⁹

When Barry and Defendant were about to fly to Europe, Stoessinger at the airport autographed for Barry four of his books. In due time Barry learned from Defendant herself that she had used the $50,000. portion for her own ends.

Barry lodged a complaint with the Postal Inspection Service. When interviewed by an inspector, Defendant told him that she was wiring $64,500. representing $60,000. plus interest. She sent a telex which falsely so stated. Neither Barry nor Studio received from Defendant any part of the...