U.S. v. Petzold, 85-5593

• Citation: 788 F.2d 1478
• Decision Date: 09 May 1986
• Docket Number: No. 85-5593,85-5593
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank P. PETZOLD, Jr., a/k/a Skip Petzold, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1478

788 F.2d 1478

UNITED STATES of America, Plaintiff-Appellee, v. Frank P. PETZOLD, Jr., a/k/a Skip Petzold, Defendant-Appellant.

No. 85-5593.

United States Court of Appeals, Eleventh Circuit.

May 9, 1986.

Bruce Rogow, Ft. Lauderdale, Fla., for defendant-appellant.

Leon Kellner, U.S. Atty., John M. Owens, Sp. Atty., U.S. Dept. of Justice, Miami, Fla., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, TJOFLAT, Circuit Judge, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from a conviction on one count of obstruction of justice in violation of Title 18 U.S.C. Sec. 1503 ¹ and one count of perjury in violation of Title 18 U.S.C. Sec. 1623. ²

BACKGROUND

A federal grand jury in Fort Lauderdale, Florida was investigating a real estate development called Stonewal Estates, and its developer, Thomas Waldron. The investigation The investigation of the Stonewal sales commenced in May, 1984. Some witnesses testified that they paid $62,000 for the lots, and then signed, or were asked to sign, promissory notes reflecting that Waldron had lent them $13,000.

focused upon loan applications which had been submitted to Sunrise Savings and Loan, a federally insured savings and loan association, in connection with about a dozen sales of Stonewal lots to buyers who were close friends or business acquaintances of Thomas Waldron. The applications reflected a $75,000 purchase price for Stonewal lots, with $13,000 cash deposits, thus inducing Sunrise to lend $62,000 to the purchasers. The government contended that the actual purchase price was $62,000 and that the bank was being fraudulently induced by applications to lend the full purchase price, rather than the 85% maximum provided for by the loan contract.

On September 7 and October 26, 1984, appellant Frank P. "Skip" Petzold appeared before the grand jury. Petzold, a friend and business associate of Waldron, appeared as a witness in connection with the grand jury's examination of the sale of Lot 146, which had been sold to Alfred Reynolds, Petzold's neighbor.

During the spring of 1984, Alfred Reynolds purchased Lot 146 through Petzold, a licensed real estate broker. The purchase agreement reflected a purchase price of $75,000 with a $13,000 cash deposit. When the agreement was executed, no $13,000 deposit had been made. Sometime prior to closing, Petzold informed Reynolds that the purchase price would be $65,000 rather than $75,000. Reynolds then submitted a loan application to Sunrise for $62,000. On March 17, 1984, Reynolds gave Petzold a personal check in the amount of $3,000 as a deposit on Lot 146.

Prior to the closing on April 16, Sunrise Savings and Loan called Reynolds and requested more information about his loan application. Reynolds eventually obtained the $62,000 from another bank. This loan was secured by other property owned by Reynolds.

The closing statement showed a $75,000 selling price and a $13,000 deposit. It did not show the $3,000 which Reynolds paid Petzold on March 17. Reynolds presented a cashier's check for $62,686.84, bringing to $65,000 the amount Reynolds paid for the lot plus the closing costs.

On June 2, 1984, Petzold asked Reynolds to exchange $13,000 checks. Reynolds gave Petzold a $13,000 check payable to Skip Petzold Realty Escrow Account, noting "purchase of Stonewal." Petzold gave Reynolds a check for the same sum. This check was drawn on his personal account rather than his real estate escrow account. Petzold claims that Reynolds agreed to the exchange of checks because of his trust in Petzold and that there was no discussion of rebates, or promissory notes or discounts. The government describes this exchange as a series of sham transactions designed to give the impression that Reynolds had signed a $13,000 promissory note and then paid it off to cover the $13,000 deposit on his purchase of Lot 146.

After completing the exchange of checks, Petzold wrote a letter to Waldron dated June 3, 1984 on Skip Petzold Realty, Inc. letterhead. The letter stated:

Dear Tom,

I am in receipt of Mr. Reynolds $13,000 to cover your demand note.

Please execute the note, satisfied, on Lot # 146 and I will deliver to you the funds in my escrow acct. to cover this payment in full.

Thank you,

Skip Petzold.

The letter bears a "Received" stamp dated June 6, 1984.

Petzold wrote another letter to Waldron bearing the date June 8, which reads:

Dear Tom,

Just for your records, I left your Sec'y, my escrow check in the @ of $13,000 to close out Mr. Reynolds' purchase of lot # 146 Stonewal.

Mr. Reynolds thanks you for the additional time and he loves his lot. I think he will build.

Sincerely,

Skip

This letter bears a "Received" stamp dated June 8, 1984.

Petzold also executed a check drawn on the Petzold Realty, Inc., escrow account, check no. 131, dated June 8, 1984, in the amount of $13,000 payable to "Stonewal Dev. Inc." The face of the check had a note stating: "Note Pd, in full Bal due to close #146 Reynolds." The check was deposited to the account of Stonewal Development, Inc. at Sunrise Savings and Loan Association.

On June 22, approximately two weeks after the exchange of $13,000 checks with Reynolds, the issuance of the Petzold Realty escrow check to Stonewal and the writing of the two letters of explanation, Frank Petzold received two checks on behalf of Thomas Waldron, totaling $13,000. However, neither check was written on a Stonewal account and neither was deposited into the Petzold Realty escrow account. Rather, one check was made payable to Frank Petzold from the Diamond C. Enterprises, Inc., account in the amount of $8,750. That check was deposited to the account of Frank Petzold. The other check was drawn on the account of Village Liquidators, payable to Frank Petzold in the amount of $4,250 and deposited to the account of Frank Petzold. Thus, there was a clear swap of checks.

Appellant first testified before the grand jury on September 7, 1984. In describing the Reynolds purchase, he testified:

Al Reynolds was to buy the lot for $65,000 if he got his own financing. That would be a discounted price, because it was my understanding that the lots were being offered for $70-5 thousand.

* * *

* * *

If he paid, you know--used his own financing, whether it was borrowing money or whatever, he would buy the lot for $65,000. That was his purchase price.

At one point, the prosecutor asked, "Sir, did it ever come to your attention that in connection with the sales to insiders a number of promissory notes were typed and prepared?" Appellant responded, "No, sir."

On October 26, appellant appeared a second time. His testimony at the second appearance is the basis of the perjury charge.

During his second appearance before the grand jury, appellant reaffirmed the truthfulness of the answers given during his September 7 appearance. The following is an excerpt of relevant testimony: ³

Q. In any event, I take it then you haven't discussed with Mr. Reynolds executing a $13,000 promissory note or anything like that?

A. That is correct.

Q. And you're clear in your own mind that the $13,000 check on or about June 8th, that you gave back to Stonewal, was not in payment of any promissory note?

A. That's correct.

Q. Did Mr. Reynolds indicate to you that he had signed a promissory note in connection with the purchase of lot 146?

A. Never discussed the promissory note with Mr. Reynolds.

Q. But you certainly never indicated to Mr. Waldron at that time that check 131 was in payment of a note?

A. No. Really, I don't think there was any correspondence on it at all.

Q. Ok. But in any event, it was the check, it was, as you understood it, like a rebate, that was a series of checks to reflect a rebate. It was not in payment of any promissory note.

A. Right.

The specifications of perjury are set out below, with the specific false declarations underlined.

Q. ... Now, you also say here, though, on the top there--in the lower left legend, "Note paid in full." Now, what did you mean when you wrote on there "Note paid in full"?

A. ... Now I also wrote under here, "balance to close number 146 Reynolds." That was a note for my bookkeeping purposes as to what these funds were being paid out for. This was the notation to me that this was to correct the accounting that I assume was incorrect--incorrectly done at the time of closing.

Q. I see, I take it then that the check number 131 was in payment of a note, a demand note?

A. No, it was not.

Q. Did you ever indicate that check number 131 was in payment of a note, a demand note?

A. No. I didn't.

* * *

* * *

Q. But you certainly never indicated to Mr. Waldron at that time that check 131 was in payment of a note.

A. No. Really, I don't think there was any correspondence on it at all. ⁴

Q. Did you ever discuss with Mr. Waldron any promissory note for $13,000 in relation to the Reynolds purchase.

A. No.

The basis of the obstruction of justice charge is Petzold's alleged participation

... in the creation of false documents and an exchange of checks to create the false and misleading appearance that the purchaser of Lot 146 had received a loan for the amount of the down payment set forth in the purchase price ... and giving false, evasive and misleading testimony before the grand jury about the Reynolds transaction.

The trial court denied appellant's motion for judgment of acquittal.

ISSUES

(1) Whether the literal truth defense articulated in Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), precludes appellant's perjury conviction.

(2) Whether there is sufficient evidence to support appellant's obstruction of justice conviction.

DISCUSSION

I. Bronston v. United States

Appellant cites Bronston for the proposition that "a witness may not be convicted of perjury for an answer, under oath, that is literally true but not responsive to the...