U.S. v. Srulowitz

• Citation: 785 F.2d 382
• Decision Date: 06 March 1986
• Docket Number: D,No. 131,131
• Parties: UNITED STATES of America, Appellee, v. Abraham SRULOWITZ, Defendant-Appellant. ocket 85-1148.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 382

785 F.2d 382

UNITED STATES of America, Appellee, v. Abraham SRULOWITZ, Defendant-Appellant.

No. 131, Docket 85-1148.

United States Court of Appeals, Second Circuit.

Argued Oct. 21, 1985.

Decided March 6, 1986.

Peter A. Norling, Asst. U.S. Atty. for the E.D. of N.Y., Brooklyn, N.Y. (Raymond J. Dearie, U.S. Atty. for the E.D. of N.Y., Allyne R. Ross, Jane Simkin Smith, Asst Alan M. Dershowitz, Cambridge, Mass. (Nathan Z. Dershowitz, Victoria B. Eiger, Dershowitz & Eiger, P.C., New York City, on brief), for defendant-appellant.

U.S. Attys., Brooklyn, N.Y., on brief), for appellee.

Before OAKES, JON O. NEWMAN and KEARSE, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Abraham Srulowitz appeals from a judgment entered in the United States District Court for the Eastern District of New York after a jury trial before John R. Bartels, Judge, convicting him of violating the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. Secs. 1961 et seq. (1982) (count one), and of mail fraud, in violation of 18 U.S.C. Sec. 1341 (1982) (count two). Srulowitz was sentenced to six years' imprisonment on count one and five years' probation on count two. On appeal, Srulowitz argues principally that the evidence was insufficient to support his conviction on the mail fraud count and that he is entitled either to dismissal of the RICO count because it is barred by the statute of limitations or to a new trial on the RICO count because the government suppressed potentially exculpatory evidence. For the reasons below, we reverse the judgment of conviction on the mail fraud count and dismiss that count, and we vacate the judgment of conviction on the RICO count and remand for further proceedings as to the RICO count.

I. BACKGROUND

The government contended that, as one of a "group of individuals associated in fact," 18 U.S.C. Sec. 1961(4), Srulowitz was a member of a RICO enterprise that engaged in arson-for-profit schemes pursuant to which partially occupied residential properties were acquired and insured, their destruction by fire arranged, and insurance payments collected. It contended that Srulowitz's role in the schemes was to take care of purchasing the insurance and to cause the burnings. The evidence focused on four sets of New York City properties, located on Green Avenue in Brooklyn, Rochester Avenue in Brooklyn, Plimpton Avenue in the Bronx, and corner properties at Vyse Avenue and 178th Street (the "Vyse Avenue" properties) in the Bronx. These four groups of properties suffered a total of 13 fires in the 16-month period between May 1976 and August 1977.

Each of the four sets of properties was alleged to have been the subject of a fraudulent scheme involving the mailing of, inter alia, false presentations by the co-schemers to the insurance carriers. Count one of the indictment described each of the four alleged schemes and, for each, listed two or more mailings alleged to be in violation of the mail fraud statute, 18 U.S.C. Sec. 1341. Each of the four schemes, with its attendant mailings, was alleged to constitute one predicate act for the charge that Srulowitz had conducted the enterprise's affairs through a pattern of racketeering activity, in violation of 18 U.S.C. Sec. 1962(c). Count two of the indictment charged that, in furtherance of the fraudulent scheme with respect to the December 23, 1976 burning of the Vyse Avenue properties, Srulowitz had caused a letter to be mailed on September 23, 1978, in violation of Secs. 1341 and 2.

A. The Pretrial Proceedings

The indictments against Srulowitz and his alleged coschemers had been returned on May 11, 1983, but remained sealed until July 12, 1983. Some of the defendants moved to dismiss on statute of limitations grounds, contending that the mailings alleged in their indictments occurred more than five years prior to the unsealing, albeit less than five years prior to the return, of the indictments. Srulowitz, though he moved to dismiss the indictment against him on other grounds, did not make a statute of limitations motion. He asserts that he did not so move because the government conceded that he would prevail on a statute of limitations defense but for the September 1978 letter.

Shortly after the indictments were unsealed, the Assistant United States Attorney ("AUSA") handling the case, Max Sayah, furnished certain documents to Srulowitz. Among these, the only documents relating to Vyse Avenue were government files numbered 14 and 15. Thereafter, Srulowitz's attorney requested that Sayah provide copies of or permit the inspection of various insurance company, adjuster, and broker files that were in the government's possession, and "any documents ... or other evidence or information which ... tends to exculpate" Srulowitz. Sayah responded that the government had "furnished copies of all documents the government intends to introduce at trial." Thereafter, Srulowitz's attorney several times requested all additional documents in Sayah's possession relating to insurance coverage on the buildings mentioned in the indictment. No such documents were forthcoming.

B. The Evidence at Trial

1. The Government's Evidence as to Srulowitz's Involvement in the Arson Schemes

The principal government witness with respect to Srulowitz's involvement in the alleged fraudulent schemes was convicted coschemer Joseph Bald. Bald testified that in January 1976, he formed a partnership with convicted coschemer Abraham Slochowsky and another, and that within the next three years, the partnership caused the burning of some 40 or 45 buildings and collected the insurance money. Bald testified that he first met Srulowitz in the Spring of 1976, and that Srulowitz had boasted, "I burned down buildings for the other people. I could do the same thing for you." Srulowitz first agreed to burn down an unprofitable property on Greene Avenue for the partnership in exchange for 50% of the resulting insurance proceeds. Shortly thereafter, two fires damaged the Greene Avenue property, and Bald submitted the requisite proof-of-loss form to the insurer in order to substantiate a claim for fire insurance proceeds. In January 1977, Bald received insurance proceeds checks totaling $32,500 and paid Srulowitz a total of $12,000 of this amount.

Bald testified that Srulowitz thereafter suggested to him that the partnership purchase the Plimpton Avenue property for $1,500, following which Srulowitz would burn down the building and split the proceeds with Bald. The partnership purchased the building and Bald and Srulowitz obtained insurance on it. At Srulowitz's urging, Jay Hodes of Perry Cohen Associates, a fire adjusters' firm, was retained by the partnership to negotiate with the insurer the amount of damage deemed to have been caused by the fire. Srulowitz arranged for the adjusters to be paid a "wholesale" rate since the partnership anticipated many fires, requiring the submission of many claims. Thereafter, the Plimpton Avenue building suffered fire damage on three occasions between January 16 and January 25, 1977. The partnership received fire insurance payments totaling $67,000.

Bald and his partners found that the buildings they owned on Rochester Avenue were losing money and agreed to sell them to Srulowitz and a partner for $1,000, plus 10% of the fire insurance proceeds to be paid after Srulowitz burned the buildings down. Bald provided Srulowitz with a deed to the property, although there was no contract or closing. Thereafter, in late January and early February 1977, these premises suffered five fires. Srulowitz and his partner never paid Bald his 10% of the fire insurance proceeds, and Bald subsequently bought the building back from Srulowitz for the amount of Bald's unpaid share of the proceeds.

Bald testified that he and his partners purchased the Vyse Avenue properties prior to December 24, 1976, from the 1054 Holding Corporation, a company owned by Philip Holzer and David Gold. Bald and his partners were to pay Holzer and Gold $2,000, plus 25% of the fire insurance proceeds from a planned arson on the buildings. Title to the properties was to remain in the name of 1054 Holding Corporation, but Bald was to make the insurance premium

payments. Bald subsequently promised 50% of the insurance proceeds to Srulowitz in exchange for Srulowitz's burning down the buildings. The Vyse Avenue buildings later suffered three fires between December 23, 1976, and January 16, 1977. With respect to the second and third fires, Bald signed the proof-of-loss statements for submission to the insurance carrier. Srulowitz, who did not want to wait for his share of the insurance proceeds, was paid $2,000 by Bald for his entire interest in Vyse Avenue. Bald thereafter collected insurance payments for those two fires totaling $33,000. With respect to the December 23, 1976 fire, Holzer and Gold eventually received all $12,000 of the proceeds following litigation with the insurance carrier, because the 1054 Holding Corporation was indicated as the owner of the premises on the documentation presented to the insurance adjuster, Perry Cohen Associates.

2. The Evidence of Mailing

Count two of the indictment alleged that on or about September 23, 1978, in furtherance of the scheme with respect to the Vyse Avenue properties, Srulowitz had caused a letter to be mailed to Hodes, the insurance adjuster. The letter, signed by Gold ("Gold Letter"), read as follows:

Dear Jay,

As of this date my attorney Louis Shron of 485 Madison Avenue, New York City advises that you have not been cooperative in forwarding all the necesary [sic ] information on the various fire claims which the insurance company disclaims liability. We cannot commence litigation without the information in your files and I am certain you would not want to be responsible for the lapse of the required time to commence litigation. Please forward the requested documents and information to Mr. Shron at once.

Yours truly,

[/s]

David...