U.S. v. Shaoul
| Decision Date | 01 December 1994 |
| Docket Number | D,No. 190,190 |
| Citation | 41 F.3d 811 |
| Parties | UNITED STATES of America, Appellee, v. Jack SHAOUL, Defendant-Appellant. ocket 94-1093. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael S. Sommer, Paul G. Gardephe, Asst. U.S. Attys., Mary Jo White, U.S. Atty., S.D.N.Y., New York City, for appellee.
Michael Kennedy, New York City, for defendant-appellant.
Before: LUMBARD, ALTIMARI and CABRANES, Circuit Judges.
Jack Shaoul appeals from a judgment of conviction entered in the United States District Court for the Southern District of New York (Dominick L. DiCarlo, Chief Judge, United States Court of International Trade, sitting by designation). He makes two contentions on appeal. First, Shaoul argues that the district court abused its discretion in denying his motion for a new trial--a motion based on a juror's inadvertent failure to disclose that the juror's nephew-in-law was an Assistant United States Attorney in the Southern District of New York (who undisputedly was not involved in Shaoul's case). Second, Shaoul claims that the district court's jury instructions on unanimity were plainly erroneous because they opened the door for the jury to return a guilty verdict on his conspiracy and mail fraud charges, even if the jurors did not agree on the factual predicate for each charge. We reject both contentions and accordingly affirm.
Jack Shaoul is an antique dealer who was charged with conspiracy and mail fraud in connection with two schemes to defraud two insurance companies out of about $1.2 million. The overwhelming evidence at trial apparently established the following facts. The first scheme involved a false report that art works had been stolen from Shaoul's unattended car, while the other stemmed from water damage to items stored inside his antique shop. The evidence indicated that no art works were ever stolen from Shaoul's car, and that the valuable painting he claimed to have been stolen was not authentic. Similarly, the proof concerning Shaoul's water damage claim apparently showed that Shaoul sought recovery for glass items that had not been damaged by water, and for a fake Winslow Homer watercolor that he had intentionally damaged.
Each of the mail fraud counts set forth a separate mailing by Shaoul that allegedly furthered his fraudulent schemes. These mailings included claim forms reporting that various pieces of artwork had been stolen or damaged, along with documentation to support Shaoul's valuations of those items.
Shaoul owned a painting entitled "Pirate's Cove" which he attributed to the turn-of-the-century American artist Albert Pinkham Ryder. According to Edward Purcell, a former employee at Shaoul's antique shop who testified for the government at trial pursuant to a nonprosecution agreement, Shaoul had tried unsuccessfully to find a recognized Ryder expert to authenticate the painting. At Shaoul's direction, Purcell attempted to sell the Ryder painting at leading auction houses in Manhattan, but those houses never agreed to list the painting for auction.
On January 6, 1991, Shaoul contacted the police to report a theft from his parked car. The police officer who received the complaint included in his report the notation, "petit larceny from auto," indicating that the value of the stolen items was less than $1,000. The report also indicated that Shaoul had reported the theft of three paintings and three vases. By contrast, when Shaoul reported the theft to his insurer, Firemen's Fund, he claimed that four vases and two paintings had been stolen, and sought $715,000 in compensation.
According to Purcell, Shaoul told Purcell the next day that there had been a theft over the weekend. When Purcell asked what had been stolen, Shaoul pointed to the Ryder painting hanging on the gallery wall, and said, "That." Shaoul then told Purcell to hide the painting in a closet, explaining that Shaoul intended to file an insurance claim for the "stolen" painting and certain other works of art.
Purcell testified that he grew nervous about his role in hiding the Ryder painting. He made an anonymous call to the police and spoke with a detective about the bogus theft; he also contacted a lawyer about the matter. Finally, on January 11, 1991, Purcell photographed the Ryder painting--still hidden inside In other testimony at trial, Purcell described Shaoul's efforts to persuade his insurer that the "stolen" painting was a genuine Ryder worth $1 million. Purcell said that he witnessed Shaoul asking Louis Liskin, his longtime friend, to write a back-dated letter--dated before the alleged theft--expressing interest in purchasing the Ryder painting for more than $800,000. In return, Shaoul allegedly offered Liskin a ten percent share of the insurance proceeds. Shaoul subsequently submitted the letter to his insurer as proof of the painting's value.
the closet in Shaoul's shop--next to that day's edition of the New York Times. These photographs established at trial that the Ryder painting was inside Shaoul's shop six days after Shaoul claimed that the painting had been stolen
Liskin, who also testified at trial pursuant to a nonprosecution agreement with the government, corroborated Purcell's account of the writing and purpose of the back-dated letter. Contrary to his representations in the letter, Liskin testified that he, in fact, believed that the painting was not a genuine Ryder. Indeed, Liskin had co-owned the painting with Shaoul from January 1988 until 1990, when Shaoul purchased Liskin's fifty percent interest in the painting for approximately $18,000.
Finally, an art appraiser who had contacted the leading Ryder expert for Shaoul testified on the government's behalf. The expert had repeatedly advised the appraiser that the painting was not a genuine Ryder, and the appraiser had reported this information to Shaoul.
Shaoul's second allegedly fraudulent scheme arose in February 1991, just one month after the alleged theft of art works from his car. This second scheme stemmed from a water leak in Shaoul's antique shop in downtown Manhattan, which had been caused by a contractor.
Ralph Loffredo, Shaoul's neighbor, twice noticed water in and around Shaoul's shop on a Sunday morning in February 1991. Loffredo contacted Shaoul in Long Island, who, in turn, called Purcell, who lived near the shop. On Purcell's arrival, he, Loffredo and another neighbor entered the shop and turned off the water, which had been leaking from a sprinkler head. Loffredo testified that he noticed one wet painting but saw no broken or damaged vases, lamps, or glassware. Purcell and the other neighbor corroborated Loffredo's testimony. Shaoul arrived about a half-hour later, accompanied by his brother-in-law.
Purcell testified that after the two neighbors left the shop, Shaoul instructed his brother-in-law and Purcell to carry out from the back of the shop numerous broken glass vases and lamps, and to spread these items around the damp part of the shop. This glassware allegedly had been broken over time in the shop--before the leak occurred. Nonetheless, Shaoul allegedly had the broken items moved to the wet part of the shop in order to claim that they were damaged by the water leak.
The wet painting observed by Loffredo and Purcell was a watercolor, bearing the purported signature of Winslow Homer, which Shaoul had obtained from Liskin approximately three years before. The leading expert on Winslow Homer told Liskin in 1987 that the work was not a genuine Winslow Homer, however, and Liskin testified that he had related the expert's opinion to Shaoul prior to selling the work to him in 1988 for $1,000. Purcell also testified that, based on his discussions with Shaoul, he believed that Shaoul knew that the watercolor was not a genuine Homer, and that Shaoul had this fact in mind when he doused the already-damaged watercolor after Loffredo and the other neighbor left the shop. Shaoul subsequently claimed that the "Homer"--whose value he placed at $125,000--had been completely destroyed by the water damage. Ultimately, Shaoul's damage claim for the water leak rose to more than $400,000. He submitted these claims to Greater New York Insurance Company, the insurer of the contractor that caused the initial water damage.
Shaoul caused to be mailed to Greater New York appraisals and invoices for the "damaged" glass and paintings. One of the invoices purported to show that Shaoul had
purchased the putative Winslow Homer work from Leah's Gallery in November 1990 for $34,500. Leah Kleman, the owner of Leah's Gallery, testified that she had known Shaoul for ten years as both a friend and a business associate, but that she had never owned or sold any watercolor by Winslow Homer. Kleman further testified that she had never sold any watercolor to Shaoul. According to Kleman's testimony, in February 1991, several months after she had sold Shaoul three porcelain plaques, Shaoul asked her for an invoice reflecting a sale of a Winslow Homer watercolor. Even though no such sale had ever been made, Kleman prepared an invoice as requested by Shaoul. Both Liskin and Purcell testified that Shaoul obtained the purported Winslow Homer watercolor directly from Liskin.
Prior to jury deliberations, the district court gave the following instruction to the jury concerning the overt act element of the conspiracy charge:
You may not convict unless you are convinced beyond a reasonable doubt that at least one overt act was knowingly and willfully committed by any one of the conspirators in the Southern District of New York....
.... It is not necessary for you to find that all of the overt acts charged in the indictment were committed. Nor is it necessary for you to find that the defendant participated in any particular overt act. It is sufficient if you find...
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