U.S. v. Previte, s. 80-1444

• Citation: 648 F.2d 73
• Decision Date: 07 May 1981
• Docket Number: 80-1608,Nos. 80-1444,s. 80-1444
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Anthony F. PREVITE, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 73

648 F.2d 73

UNITED STATES of America, Plaintiff, Appellee, v. Anthony F. PREVITE, Defendant, Appellant.

Nos. 80-1444, 80-1608.

United States Court of Appeals First Circuit.

Argued Jan. 7, 1981.

Decided May 7, 1981.

Jeanne Baker, Cambridge, Mass., with whom William J. Genego, Washington, D. C., and Baker & Fine, Cambridge, Mass., were on brief, for defendant, appellant.

Alan D. Rose, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for plaintiff, appellee.

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

COFFIN, Chief Judge.

Anthony Previte appeals on numerous grounds his conviction on two counts of conspiracy to defraud the United States or to give or receive gratuities. His arguments may be classed in three general categories: challenges to the sufficiency of the indictment, attacks on the content and manner of the district judge's instructions to the jury, and a renewal of a motion for a new trial based on an alleged prosecutorial failure to disclose exculpatory information. Each of these categories in turn comprises a number of subsidiary arguments and issues, some of which require rather careful analysis. After setting forth the relevant facts, we address each of the defendant's challenges in turn. Finding no reversible error in any of the issues raised, we affirm both the judgment of conviction and the denial of the motion for a new trial.

I

Defendant-appellant Anthony F. Previte ("Previte") was indicted on five counts of official misconduct by a grand jury in the District of Massachusetts. Each count charged wrongdoing by Previte in his capacity as Chief of the Portfolio Management Division of the Boston office of the United States Small Business Administration (the "SBA"). Counts I, II and III ("the Aver counts") related to alleged dealings with Peter R. Aver ("Aver"), for whom the SBA had twice guaranteed bank loans: Count I charged that Previte had conspired with Aver both to defraud the United States, in violation of 18 U.S.C. § 371, and to commit violations of 18 U.S.C. § 201(f) and (g), proscribing the giving and receiving of gratuities by public officials, while Counts II and III each charged Previte with the receipt of separate $2500 bribes from Aver, in violation of 18 U.S.C. § 201(c). Counts IV and V ("the Pandy counts") related to alleged dealings with George R. Pandy ("Pandy"), who had obtained four SBA loan guarantees and one direct SBA loan; Count IV charged that Previte had conspired with Pandy to commit the same offenses charged in Count I, while Count V charged that Previte aided and abetted Pandy in the submission of false information to the SBA, in violation of 15 U.S.C. § 645 and 18 U.S.C. § 2. After a three-week jury trial, Previte was convicted on the two conspiracy counts, I and IV, and acquitted on the three substantive counts; he was sentenced to concurrent one-year prison terms on Counts I and IV. Previte subsequently filed a motion for a new trial based on an alleged failure of the government to disclose exculpatory evidence; the district court denied the motion, and Previte appeals from that denial along with his appeal from the judgment of conviction.

The evidence at trial, viewed in the light most favorable to the government, United States v. Davis, 623 F.2d 188, 195 (1st Cir. 1980), showed among other things the following, beginning with the evidence relevant to the Aver counts. Aver, who had learned that Previte had helped Aver's business partner with an earlier SBA loan in return for certain gratuities, approached Previte for his assistance in obtaining an SBA guarantee for a $100,000 loan Aver was then seeking from a bank. Previte assured Aver that he would push the guarantee through the SBA so long as Aver "took care" of him, and proposed several falsifications and omissions in Aver's application. After the application was submitted Previte told Aver he needed $2500, which Aver paid him; the application was approved shortly thereafter. Subsequently after the restaurant for which the loan was made had been burned by Aver for insurance purposes, Previte took steps to have the bank continue servicing the loan despite Aver's failure to make certain payments due on it. Aver then sought a second loan, for which Previte again recommended and approved various falsifications, and Aver paid Previte another $2500 prior to approval of the guarantee. Previte again took steps to prevent bank foreclosure on the second loan after the bank discovered that Aver had filed false information with his loan application. In addition to the two cash payments, Aver paid for numerous dinners for Previte during this period and arranged for free visits to massage parlors and other services. Finally, after the FBI began to investigate the matter, Aver became an informant and recorded a conversation in which Previte made highly incriminating statements.

With respect to the Pandy counts, the evidence showed a similar pattern. Previte approached Pandy shortly after Pandy had applied for an SBA loan guarantee, and offered to "take care of" Pandy's application. At Previte's suggestions, Pandy then paid for dinner and the services of a prostitute for Previte, and Previte assured Pandy that the application would be approved. In fact, however, the application was initially declined by another SBA official, but was subsequently approved after Previte intervened. Over the next three years, Previte and Pandy discussed Pandy's loan situation frequently; Previte assisted in a variety of ways with four other SBA applications submitted by Pandy totalling about $1,000,000; and Pandy paid for numerous dinners, car repairs and rentals, and massage parlor services totalling about $3600, usually at Previte's request. Their relationship ended at about the time Pandy's business closed.

The principal thrust of the defense case was to impeach the credibility of the government's principal witnesses, Aver and Pandy. The defense introduced evidence showing Aver's prior criminal record, and emphasized that both witnesses were testifying under a grant of immunity. In addition, defense counsel elicited testimony, primarily in cross-examination of government witnesses, as to the defendant's reputation for truthfulness and integrity; the nature and extent of this testimony is of significance with respect to one of the challenges to the jury instructions to be considered below.

II

Previte challenges the indictment as unable to support his convictions in two respects, one addressing the relationship between the counts as stated on the face of the indictment and the other deriving from the particular pattern of convictions and acquittals returned by the jury. First, he argues that the conspiracy counts of the indictment, the only counts on which he was convicted, violated Wharton's Rule by charging him only with "conspiring to agree". Second, he contends that, because of the particular relationship between the facts alleged in the substantive counts and those alleged in the conspiracy counts, the jury's acquittals on the former serve as a matter of law as acquittals on the latter as well.

A

Wharton's Rule is a historical, common law doctrine that prevents the state in a few limited instances from convicting any person of both a conspiracy and the substantive offense that is the conspiracy's objective. It applies when the substantive offense is of a sort that necessarily requires the active, or culpable, participation of the same two people for its successful completion. The leading American case, for example, prevented a prosecution for conspiracy to commit adultery brought after the state had failed to obtain a conviction for the substantive offense. Shannon v. Commonwealth, 14 Pa. 226 (1850).

The Supreme Court explained the rule in Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975), setting forth several principles of interpretation. First, the Court noted that ordinarily one can convict a defendant of both conspiracy to commit a crime and the substantive crime itself. The old common law notion that the conspiracy "merged" into the substantive offense has been discarded in light of the fact that a criminal agreement poses dangers to society distinct from the dangers posed by simple commission of a crime. Wharton's Rule is, to some extent, a relic of the discredited merger doctrine and should be interpreted narrowly. Second, the Court made clear that the Rule applies only to those offenses that "require concerted criminal activity". (Emphasis in original.) ¹ Thus, presumably, the Rule does not apply to robbery even if a particular indictment charges a scheme that requires two robbers for its success for the crime of robbery does not itself require two culpable participants (though it does require a robber and a victim).

Third, the Rule may not apply even to those crimes that fit within its technical requirements. For one thing, the Rule is a judicial presumption, serving only as an indication of legislative intent. It is subject to rebuttal by contrary indications. For another thing, the Court suggests that it may not apply outside the area of victimless crimes, for only where the direct consequences of the crime fall on the parties themselves are the added dangers that a conspiracy poses to society minimal. Finally, the Rule does not forbid charging both a conspiracy and the substantive offense, even when it applies. It merely forbids sentencing on both counts, "for the real problem is the avoidance of dual punishment." Id. at 786 n.18, 95 S.Ct. at 1294 n.18.

These principles make clear that Wharton's Rule does not apply to this case. The offense charged in the indictment is conspiracy to violate two separate statutory provisions: 18 U.S.C. § 201(f) and 18 U.S.C. § 201(g). The first of these provisions makes it a crime if a person "gives, offers, or promises" anything of value to a public official...