U.S. v. Siegel

• Decision Date: 11 January 1979
• Docket Number: No. 78-5006,78-5006
• Citation: 587 F.2d 721
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Saul SIEGEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 721

587 F.2d 721

UNITED STATES of America, Plaintiff-Appellee, v. Saul SIEGEL, Defendant-Appellant.

No. 78-5006.

United States Court of Appeals Fifth Circuit.

Jan. 11, 1979.

Henry Gonzalez, Miami, Fla., for defendant-appellant.

John P. Volz, U. S. Atty., Ernest C. Chen, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before GOLDBERG, Circuit Judge, SKELTON ^*, Senior Judge, and FAY, Circuit Judge.

FAY, Circuit Judge:

On June 10, 1977, appellant, Saul Siegel, was found guilty of violating 18 U.S.C. § 2314 ¹ and on November 16, 1977 he was sentenced to a prison term of eighteen months. Siegel raises the following points on appeal: 1) that the evidence was insufficient to sustain a conviction, 2) that the questioning by the trial judge was prejudicial, 3) that the prosecutor made prejudicial statements expressing his personal beliefs regarding the credibility of appellant, 4) that the trial judge incorrectly gave instructions, unrequested by appellant, concerning impeachment of witnesses which was immediately followed by a prejudicial instruction regarding a defendant testifying on his behalf, 5) that it was error to refuse appellant a continuance in order to secure a witness, and 6) that the indictment was improper because it was based on hearsay evidence and because the testimony of the Government's sole witness was not transcribed. Concluding that appellant received a fair trial, we affirm the conviction.

FACTS

Dale and Darlene Johnston needed capital to buy machinery to increase production and to retire old debts of their coal mining business in Oklahoma, D & D Mining Company. Dale Johnston mentioned his financial difficulties to a coal broker named Joseph Eberhard who in turn contacted Saul Siegel in early 1976 because Siegel had expressed an interest in any sound investments that Eberhard might find in his travels. Eberhard testified that Siegel wanted Johnston and Eberhard to travel to New Orleans with D & D Company's books so that appellant could look over the books to decide whether to help Johnston obtain a $100,000 loan. On February 25, 1976, Dale Johnston traveled from Oklahoma to Arkansas to meet Eberhard for their journey to New Orleans. When Johnston and Eberhard met appellant in New Orleans, they discussed the financial position of D & D Company. Appellant told Johnston that in return for arranging the $100,000 loan for D & D Company, the Johnstons were to make Siegel's son 50% Owner in a corporation to be formed by the Johnstons. In order to carry out the terms of the agreement, the Johnstons' attorney formed the D & D Mining Corporation with the 50-50 stock arrangement.

The $100,000 loan was arranged by Larry Ott, executive vice-president of the Ponchartrain State Bank. This loan was secured by heavy equipment which the Johnstons owned free and clear of any liens. The value of this equipment exceeded the amount of the loan plus interest. In addition, this loan was guaranteed by both appellant and the Johnstons.

The bank account that was set up for D & D Mining Corporation with the Pontchartrain State Bank listed appellant as the only person authorized to withdraw funds. Such money as went to the Johnstons was sent by check and wire. Appellant alleged that the Johnstons deposited the money sent by him in their personal account and that the money was being used to pay off some old debts of D & D Mining Company. There is evidence in the record that at the time appellant signed the $100,000 note, he owed over $750,000.

Before the account for D & D Mining Corporation was opened in Ponchartrain State Bank on March 17, 1976, appellant had withdrawn, through multiple transactions, over $58,000. Of the $58,000 withdrawn before March 17th, $20,000 was in the form of a wire sent by Siegel to D & D Mining Corporation on March 10, 1976. Appellant retained the $38,000 he did not send to D & D Mining. On March 17, 1976, the day the proceeds of the $100,000 loan were credited to the account of D & D Mining, Siegel withdrew over $36,000, of which only $20,000 were wired to D & D Mining. Another $6,900 was sent by Siegel to D & D Mining some time after March 17th. In addition, $3,300 went to the Prudential Bank of New Zealand for credit to the account of Murray Directors Affiliates to pay a compensating balance at the Ponchartrain State Bank. ² Three additional checks totalling $28,000 were sent by Siegel to D & D Mining, but were returned for insufficient funds. In sum, D & D Mining received a total of $46,900 from Siegel. Thus, appellant retained the difference between $100,000 and $50,200 ($46,900 which went to D & D Mining and $3,300 which went to pay for the CD). Appellant had also sent a piece of equipment to D & D Mining Corporation which he claimed was valuable and which he claimed further proved his good intentions toward D & D Mining Corporation. Siegel appeals the jury's verdict finding him guilty of inducing a person to travel in interstate commerce in furtherance of a scheme to defraud by means of false and fraudulent pretenses, representations and promises, in violation of 18 U.S.C. § 2314.

I. SUFFICIENCY OF EVIDENCE

It is settled law in this Circuit that where, as was the case here, a defendant puts on evidence after moving for acquittal under F.R.Crim.P. 29(a), he waives objection to the denial of that motion unless he renews his motion at the close of all the evidence. United States v. Phipps, 543 F.2d 576, 577 (5th Cir. 1976), Cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 564 (1977); United States v. Perez, 526 F.2d 859 (5th Cir.), Cert. denied, 429 U.S. 846, 97 S.Ct. 129, 50 L.Ed.2d 118 (1976); United States v. Edwards, 488 F.2d 1154 (5th Cir. 1974). In Phipps this Court stated that an exception to the above rule "has been suggested where to deny the appeal would further a manifest miscarriage of justice." 543 F.2d at 577. Even under the suggested Phipps test, Siegel's appeal must be denied as we do not believe this denial would further a manifest miscarriage of justice. On the contrary, the record indicates that there was sufficient evidence from which the jury could have concluded that Siegel induced Johnston and Eberhard to travel in interstate commerce in furtherance of a scheme to defraud as set out in 18 U.S.C. § 2314.

There is clear evidence in the record that the reason Johnston and Eberhard traveled to New Orleans was to discuss the Johnstons' financial situation regarding D & D Mining Company for purposes of obtaining a loan for that business. At the time the loan was obtained, Siegel was heavily in debt, owing approximately $750,000. Before the proceeds of the $100,000 loan were credited to D & D Mining Corporation, Siegel had withdrawn over $58,000 from that account. ³ Out of the $100,000, the Johnstons received only $46,900. ⁴ Appellant began withdrawing loan proceeds before the proceeds were even actually deposited in Ponchartrain State Bank. Surely the jury could have concluded that appellant's financial situation at the time Johnston and Eberhard traveled to New Orleans, coupled with the speedy withdrawals by Siegel of these funds, was evidence of Siegel's planned intent to defraud the Johnstons of the money. Very often conduct is the only evidence of subjective intent. These deeds speak rather loudly.

II. CONDUCT OF THE TRIAL JUDGE

The appellant complains that the following questions by Chief Judge Frederick J. R. Heebe were highly prejudicial and must have had an adverse impact on the jury:

THE COURT: Mr. Siegel, let me ask you this question: What did you do with all of the funds that you drew on the corporation's account to your own, to yourself?

THE WITNESS: I used them for my own account, sir, my other businesses.

THE COURT: Did you have authority to do that?

THE WITNESS: Yes, I did.

THE COURT: Listen to me carefully: You had authority, we all know, to write checks?

THE WITNESS: Right.

THE COURT: Did you have authority to write checks for the purpose of using it on your own personal expenses?

THE WITNESS: I don't know, sir, I don't know the law.

THE COURT: You don't know that?

THE WITNESS: No, I don't.

THE COURT: Then, why did you write the checks, these checks to yourself in the amount of something over $30,000?

THE WITNESS: Because, sir, I could put it back into the company; lots of times there are companies that need funds, and I put them in directly.

THE COURT: Have you put it back in?

THE WITNESS: Not yet, sir.

MR. GONZALEZ: Could we approach the Bench a moment?

(The following proceedings were had at the Bench, outside the hearing of the jury or the witness.)

MR. GONZALEZ: At the (sic) time, I would like to move for a mistrial. (T. 241-43)

In reviewing the record we find the experienced trial judge made every effort to see that Siegel had a fair trial. By these questions the trial judge was merely trying to ascertain whether appellant had authority to withdraw the funds and to determine what happened to the funds after they were withdrawn. Furthermore, in the jury instructions the trial judge cautioned the jury to disregard comments by the judge and not to draw any inferences from the judge's questions. The conduct of the trial judge in this case by asking a few questions to clarify matters, coupled with his instructions to the jury not to draw inferences from his questioning, is not comparable to the conduct condemned in United States v. Hoker, 483 F.2d 359 (5th Cir. 1973). It is well settled that a trial judge must use caution in questioning a witness because his position as judge carries overpowering weight before a jury. However, we do not feel this trial judge was overzealous or that his impartial attitude is open to serious question. In Hoker, the number of questions by the trial judge was somewhere around one hundred and fifty-three. But it was "the tenor of the court's questions rather than the bare number" which this Court felt...