U.S. v. Sliker

• Decision Date: 18 March 1985
• Docket Number: Nos. 338,s. 338
• Citation: 751 F.2d 477
• Parties: 16 Fed. R. Evid. Serv. 1089 UNITED STATES of America, Appellee, v. John W. SLIKER, John Carbone, and Theodore Buchwald, a/k/a "Bucky," Defendants- Appellants. to 340, Dockets 84-1198, 84-1200 and 84-1208.
• Court: U.S. Court of Appeals — Second Circuit

Page 477

751 F.2d 477

16 Fed. R. Evid. Serv. 1089

UNITED STATES of America, Appellee, v. John W. SLIKER, John Carbone, and Theodore Buchwald, a/k/a

"Bucky," Defendants- Appellants.

Nos. 338 to 340, Dockets 84-1198, 84-1200 and 84-1208.

United States Court of Appeals, Second Circuit.

Argued Oct. 24, 1984.

Decided Dec. 13, 1984.

Certiorari Denied March 18, 1985.

See 105 S.Ct. 1772.

James R. DeVita, Asst. U.S. Atty., S.D.N.Y., Rudolph W. Giuliani, U.S. Atty., Paul Shechtman, Asst. U.S. Atty., S.D.N.Y., New York City, for appellee.

Frederick H. Block, New York City, for defendant-appellant Sliker.

Stanley A. Teitler, Amy Adelson, Richard H. Levenson, Stanley A. Teitler, P.C., New York City, for defendant-appellant Carbone.

Barry Bassis, The Legal Aid Soc., Federal Defender Services Unit, New York City, for defendant-appellant Buchwald.

Before LUMBARD, FRIENDLY and PRATT, Circuit Judges.

FRIENDLY, Circuit Judge:

John W. Sliker, John Carbone and Theodore Buchwald appeal from their convictions in the District Court for the Southern District of New York, after a trial before Judge Griesa and a jury, on nineteen counts of a twenty count indictment, all related to substantially the same transactions. Excluding the third count, which was dismissed upon the Government's motion, three counts charged the defendants with bank embezzlement in violation of 18 U.S.C. Sec. 656, four counts alleged that they committed bank larceny in violation of 18 U.S.C. Sec. 2113(b), three counts charged them with transporting stolen property in interstate commerce in violation of 18 U.S.C. Sec. 2314, and eight counts alleged that they falsified bank records in violation of 18 U.S.C. Sec. 1005. Finally, there was one count alleging a conspiracy to commit these four offenses in violation of 18 U.S.C. Sec. 371. Both Sliker and Buchwald received concurrent five year sentences on the conspiracy and embezzlement charges and on six of the falsification charges; ten years on each of the larceny and interstate transportation of stolen property charges, also to run concurrently; and five years probation for the remaining two falsification counts after they had served these sentences. Carbone received concurrent five year sentences on each of the first seventeen counts, and five years probation for the final two counts of falsification upon his release from prison. In addition, Carbone was fined $1000 on each of the first ten counts.

The fraud was perpetrated in January, 1981, through the use of checks issued by the "Bahrain Credit Bank" located in Montserrat, West Indies. In fact, the bank was a sham, run from the house of Clive Marks, who would claim to represent the bank and would respond affirmatively to inquiries whether the checks were legitimate. By the time it was discovered that the checks were in fact worthless, they would have been cashed.

The Government submitted evidence to establish the following case: In October or November, 1980, defendant Buchwald and Rocco Saluzzi, an unindicted conspirator who was one of the Government's principal witnesses, traveled together from New York to Brussels and endeavored unsuccessfully to use Bahrain Credit Bank checks for the purchase of diamonds. Shortly after their return, Saluzzi met with defendant Carbone, who had apparently helped to finance Saluzzi's Belgian trip, at On January 5, 1981, Carbone brought Sliker to the Merchants Bank and introduced him to Foster. Carbone told Foster that Sliker was a good friend and a good businessman and would be a good customer of the Bank. Foster opened an account for Sliker, who deposited $300 in cash.

                Carbone's furniture store.  Carbone sought permission to give Saluzzi's telephone number to someone whom Carbone wanted Saluzzi to meet.  According to Saluzzi, Carbone explained that "[h]e's a pretty interesting guy;  he's a good mover of paper and I thought you might want to meet him."    Shortly thereafter, Saluzzi received a call from defendant Sliker, who explained that he had obtained Saluzzi's telephone number from Carbone.  The two met and Saluzzi told Sliker of his ability to obtain offshore bank checks which could "take" a telephone call or telex;  Sliker responded that he had connections for disposing of such checks and encouraged Saluzzi to obtain them as quickly as possible.  At a subsequent meeting in Carbone's store, Sliker told Saluzzi that Sliker could "take care of" the checks at the Merchants Bank.  According to Saluzzi, Sliker claimed that he could work with Bill Foster, a vice-president of the bank, who Sliker stated would be "very cooperative" because Foster was in debt to loansharks for approximately $115,000.  Saluzzi then met with Buchwald in order to obtain the checks.  Buchwald gave Saluzzi two Bahrain Credit Bank checks, one for $48,760 and the other for $51,240;  after Sliker disposed of these as described below, Buchwald gave Saluzzi a third such check for $300,000
                

Sliker returned to the Merchants Bank on January 16, 1981, with a Bahrain Credit Bank check payable to himself in the amount of $48,760, and deposited the check into his account. Foster approved the Bahrain Credit Bank check for immediate credit to enable Sliker to cash a $9,000 personal check; Sliker also opened a savings account by transferring $10,000. Sliker then returned to Carbone's store where Saluzzi was waiting to divide the proceeds. Sliker falsely told Saluzzi he had given $900 to Foster, and another $900 was put aside for Buchwald to give to the source of the checks; the remaining $7200 was divided equally among Saluzzi, Sliker and Buchwald, who was waiting outside Carbone's store to collect his share. Saluzzi and Buchwald then left together to pay $900 to the source of the checks.

Three days later, on January 19, 1981, Sliker returned to Merchants Bank and deposited the $51,240 Bahrain Credit Bank check, payable to himself, into his savings account. He then cashed another personal check for $9,000, used a second personal check to purchase a $15,000 Merchants Bank cashier's check payable to an Anthony Filone, and used a third personal check to wire transfer $4,000 to an account at a Maine bank. After these transactions, all but approximately $3000 of the funds from the first Bahrain Credit Bank check had been removed from Sliker's checking account. Sliker then took the $9,000 he had received in cash and replayed the scenario that had followed the deposit of the first Bahrain Credit Bank check: He met Saluzzi at Carbone's store, falsely told Saluzzi that he had paid Foster $900, put aside another $900 for Buchwald to pay to the source of the checks, and divided the remaining $7,200 in equal shares among himself, Saluzzi and Buchwald; Saluzzi and Buchwald once again left together to pay the source of the checks his share.

On the morning of the next day, January 20, 1981, Foster received a telephone call from an individual purporting to be an officer of the Bahrain Credit Bank, who said he was calling from Montserrat at Sliker's request in regard to three checks the Bahrain Credit Bank had issued to Sliker, the two checks already deposited and another $300,000 check. The caller assured Foster that the checks were properly issued and would be paid on presentation through regular bank channels. That afternoon Sliker went to Merchants Bank with the $300,000 check, payable to himself. He deposited this in his checking account, and Foster approved it for immediate credit. Using a personal check, Sliker purchased five Merchants Bank cashier's checks payable to The scheme was premised on Merchants Bank's sending the checks to Montserrat for processing. The sham bank would then stall or claim never to have received the checks, giving the defendants an opportunity to abscond with the proceeds. With the bad luck which fortunately so often attends criminal enterprises, Foster attempted instead to process the three fraudulent checks through the Federal Reserve Bank. On January 21, 1981, Foster learned that the Federal Reserve Bank, which processes only checks drawn on United States banks, had refused to honor the $48,760 and $300,000 checks deposited by Sliker in his checking account as "not payable in the U.S." Foster also learned that the $51,240 Bahrain Credit Bank check, deposited by Sliker into his savings account, had been refused by the Federal Reserve Bank and, in fact, had already been returned to Merchants Bank. Foster called Sliker who promised to take care of the problem by obtaining new checks or a wire transfer. The next morning, Sliker returned to the Merchants Bank, bringing with him two of the cashier's checks he had obtained on January 20, totalling $42,000. Rather than redepositing these into his checking account, Sliker deposited them into his savings account. He asked Foster to return the $51,240 Bahrain Credit Bank check to him, promising to take it back to the people who had given it to him and obtain a new check on a United States bank or a wire transfer. Foster did so, but agreed to return the other two checks to Sliker when these had been returned to the Merchants Bank only after Sliker had covered the remaining overdraft in the checking account. Foster also asked Sliker to stop writing checks on this account until the matter was resolved. Without Foster's knowledge, however, Sliker returned to the bank that same afternoon and cashed a $7,500 check with approval from another officer. Five days later, on January 27, Sliker brought Foster $7,500 in cash for deposit into Sliker's checking account; he told Foster that he had obtained the money by collecting on a debt. Despite Foster's request, Sliker continued to write checks on this account.

five different payees, totalling $110,200, and a $100,000 Merchants Bank certificate of deposit; he transferred $60,000 from the checking account into his savings account, and directed that a $10,000 Treasury bill be purchased at the next Federal Reserve auction and paid for with funds from his...