U.S. v. Lang

• Decision Date: 28 June 1990
• Docket Number: No. 88-6223,88-6223
• Citation: 904 F.2d 618
• Parties: 30 Fed. R. Evid. Serv. 819 UNITED STATES of America, Plaintiff-Appellee, v. Phillip Bruce LANG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 618

904 F.2d 618

30 Fed. R. Evid. Serv. 819

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Bruce LANG, Defendant-Appellant.

No. 88-6223.

United States Court of Appeals Eleventh Circuit.

June 28, 1990.

Phillip Bruce Lange, Marianna, Fla., pro se.

Leonard J. Cooperman, Miami, Fla., for defendant-appellant.

Dexter W. Lehtinen, Linda Collins-Hertz, Lynne Lamprecht, David I. Mellinger, U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and KAUFMAN ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

Phillip Bruce Lang appeals his conviction on two counts of mail fraud in violation of 18 U.S.C. Sec. 1341 and five counts of interstate transportation of falsely-made securities in violation of 18 U.S.C. Sec. 2314. Lang contends that the district court erred in admitting the grand jury testimony of a government witness under Fed.R.Evid. 804(b)(5), the catchall exception to the hearsay rule. He also claims that the court's jury instructions regarding the mail fraud counts were improper under the Supreme Court's ruling in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987).

BACKGROUND

Phillip Lang's ("Phillip" or "appellant") convictions stem from various acts performed in furtherance of a scheme involving fraudulent and worthless checks drawn on banks in California and cashed at banks in Florida. Phillip was employed by his father, Gerald Lang ("Gerald"), who operated a courier service, P.D.Q. Couriers of Florida ("P.D.Q. Couriers"). In April 1981, Phillip called his cousin Sharon Kostich in California and asked her to forward him the information necessary to open a business bank account in California. Kostich obtained forms for opening a business account at the Independence Bank in California, together with a list of documents the bank required. The documents requested by the bank included a copy of the business's articles of incorporation and a signature card.

Phillip mailed the completed forms back to Kostich and she delivered the forms to the Independence Bank. The signature card from P.D.Q. Couriers contained the names "Paul Rose" and "George Silvers." At trial, however, Elaine Friedman, Phillip's former wife, testified that she recognized both of the names on the signature card as being in Phillip's handwriting. The signature card had been notarized by Phillip's father, Gerald Lang.

Independence Bank opened an account for P.D.Q. Couriers and Phillip subsequently endorsed checks drawn on this account by Paul Rose as payor. Phillip deposited these checks in accounts that he had opened in his name at two Miami banks, Southeast Bank and Pan American Bank. Phillip then made substantial withdrawals from the Miami banks against the balances artificially created by the Independence Bank checks, which were ultimately determined to be worthless. Phillip's fingerprints and handwriting appeared on checks deposited in both the Pan American account and the Southeast Bank account. Before Phillip's Pan American and Southeast Bank accounts were closed, the banks sustained losses of $6,166.27 and $7,500 respectively.

Meanwhile, in May 1981, Phillip, again through Sharon Kostich, set up a business account at the Union Bank in California using the same type of fraudulent signature cards. Gerald Lang again appeared as the notary on the signature card. In accordance with his established pattern, Phillip endorsed checks drawn by Paul Rose on P.D.Q. Couriers' account and deposited them in two other Florida banks, South Florida Savings and United National Bank. Before the accounts were closed, South Florida sustained a loss of approximately $9,800 and United National Bank lost $11,759. ¹

The appellant was finally apprehended when he attempted to cash a check at the drive-in window of United National Bank. A bank official invited Phillip inside and alerted the police. When the police officer arrived, appellant stuffed the check he had sought to cash in his mouth and unsuccessfully attempted to eat it.

In August 1985, appellant was indicted on seven counts: Counts I and II alleged mail fraud in violation of 18 U.S.C. Sec. 1341 based on appellant's causing Sharon Kostich to place in the mail the two signature cards which were used in furtherance of the scheme to defraud. Counts III through VII, charging the appellant with the interstate transportation of falsely-made securities, were based on the appellant's role in causing various fraudulent checks to be sent through the mail from Florida to California.

At trial, the appellant's former wife, Elaine Friedman, identified the handwriting on all of the checks as that of the appellant. She further testified that she had lived at Gerald Lang's home during 1981 and that she had never seen any individuals named George Silvers or Paul Rose. Bank officials of both the California and Florida banks testified as to the various transactions involved in the scheme, and Sharon Kostich testified concerning the opening of the accounts. An FBI fingerprint specialist testified that Phillip's fingerprints were found on the documents used to establish the California bank accounts. Another FBI special agent testified that his investigation into the matter had failed to develop any information establishing the existence, or verifying the identities of either Paul Rose or George Silvers. The court also allowed the government to present the grand jury testimony of Gerald Lang, Phillip's father. The substance of that testimony and the circumstances surrounding its admission are discussed below.

The defense case consisted of the testimony of Richard Lang, Phillip's brother, who testified that the only person at P.D.Q. Couriers who had access to checks and documents was Gerald Lang; that he had never seen Phillip sign any business checks; that he knew that his father had dealt with loan sharks, had financial problems in his business, and had corresponded with the Independence Bank in California. He also identified Paul Rose as someone who had been in the P.D.Q. Couriers' office. Barbara Lang, Richard's wife, also testified that she had worked for P.D.Q. Couriers and had never seen Phillip write any checks.

ADMISSION OF THE GRAND JURY TESTIMONY

A. Background

Prior to trial, the government subpoenaed Phillip's father, Gerald Lang, to appear as a witness. Although he agreed to appear, he failed to arrive at court on the first day of trial. Gerald was brought to court the next day under a warrant. At that time, he presented a letter from his physician stating that it would be detrimental to his health to testify. He himself informed the judge that he was recuperating from a massive heart attack, was under medication and medical care, and would not be able to testify. The court, finding that Gerald would be physically unable to undergo the rigors of examination, discharged him, and, over the objections of defense counsel, allowed Gerald's grand jury testimony to be used instead under 804(b)(5). ²

Counsel for the government read to the jury the transcript of Gerald's testimony given before the grand jury ten months earlier. Gerald had testified that he had been the founder of P.D.Q. Couriers, and that his son Phillip had been in charge of the financial aspects of the business. He stated that although he himself had not been involved in any transactions involving P.D.Q. Couriers' bank accounts in California, he had frequently notarized documents for his son without paying attention to the content of the papers. He also testified that he had never met any individual named George Rose or George Silvers. Furthermore, he stated that his son "had a knack of being able to sign names" and that he had never discussed with Sharon Kostich anything regarding signature cards used in establishing California bank accounts.

B. Admissability under Rule 804(b)(5)

The appellant argues that the district court abused its discretion in allowing the government to introduce Gerald's grand jury testimony. The admissibility of hearsay in cases where the declarant is unavailable as a witness is governed by Rule 804(b) of the Federal Rules of Evidence. Parts (b)(1) through (b)(4) of Rule 804 list specific types of hearsay evidence which are admissible as exceptions to the general rule prohibiting the use of hearsay evidence at trial. Under Rule 804, testimony given at a prior trial, statements of a belief of impending death, statements against interest, and statements of personal or family history, are admissible when the declarant is unavailable. This is because "[t]hese categories or information have attributes of trustworthiness not possessed by the general run of hearsay statements that tip the balance in favor of introducing the information if the declarant is unavailable to testify." United States v. Fernandez, 892 F.2d 976, 980 (11th Cir.1989); see also Fed.R.Evid. 804 advisory committee's note (hearsay, if of the specified quality, is preferred over complete loss of the declarant's evidence).

Rule 804(b)(5) is a catchall provision that provides for the admission of statements not specifically covered by the exceptions enumerated in Rule 804(b)(1-4) but "having equivalent circumstantial guarantees of trustworthiness." Such statements are admissible if the court determines that:

(A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to...