U.S. v. Valenti, 1510
| Decision Date | 06 July 1995 |
| Docket Number | D,No. 1510,1510 |
| Citation | 60 F.3d 941 |
| Parties | 42 Fed. R. Evid. Serv. 825 UNITED STATES of America, Appellee, v. John VALENTI, Defendant-Appellant. ocket 94-1462. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael M. Milner, Milner & Daniel, New York City (Emily R. Daniel, Michele Stolls, of counsel) for defendant-appellant.
Douglas R. Jensen, Asst. U.S. Atty., S.D.N.Y. (Mary Jo White, U.S. Atty., Alexandra Rebay, Asst. U.S. Atty., of counsel) for appellee.
Before: McLAUGHLIN, CABRANES, and PARKER, Circuit Judges.
John Valenti was the treasurer of Caravanserai Owners Association (the "Association"). He was charged with interstate transportation of stolen property, in violation of 18 U.S.C. Secs. 2314 and 2, in connection with the embezzlement of Association funds. Valenti was convicted following a jury trial in the United States District Court for the Southern District of New York (Robert P. Patterson, Jr., Judge ). He was sentenced to 24 months' imprisonment, and was ordered to pay restitution of $122,466. Valenti appeals his conviction and sentence. For the reasons that follow, we affirm.
From 1982 to 1992, John Valenti was the treasurer of the Association, an organization of approximately 40 United States residents who owned apartments in the Caravanserai Hotel on the Dutch part of the island of St. Maarten. The Association was managed by a Board of Directors elected by the members, and by two officers in addition to Valenti--a chairman and a secretary. Most significantly, the weight of evidence at trial suggested that none of the officers received any compensation. The chairman of the Association was Morris Shamos.
The Association had a checking account in its name at Chase Manhattan Bank in New York, where Valenti worked before he retired in 1990. Valenti kept the checkbook, and Chase mailed account statements to him. He had authority to issue checks on his own signature only up to $1,000. For larger amounts, the signature of a second officer of the Association was required.
In an indictment filed December 29, 1992, Valenti was charged with interstate transportation of stolen property, in violation of 18 U.S.C. Secs. 2314 and 2, arising out of his embezzlement of Association funds. The time frame specified in the indictment was from April 1991 to May 1992.
The embezzlement
According to the government, in April 1991, Valenti began writing checks on the Association's account, payable either to himself or his wife, Martha Valenti, and depositing those checks in his own bank account in New Jersey. Between April 21, 1991 and May 8, 1992, Valenti wrote 65 checks totalling $63,466 to himself or his wife--each for an amount slightly under $1,000. He deposited 60 of those checks (more than $58,000) into the New Jersey account. The other checks were deposited into a personal account maintained by Valenti and his wife at Chase Manhattan Bank in New York.
On numerous occasions, Valenti wrote several checks to himself in a single day, each for an amount just under $1,000. In contrast, when Valenti wrote checks for the Association's expenses, he issued one check for the full amount, and, when the amount exceeded $1,000, he presented the check to Shamos for the requisite co-signature. None of the checks written by Valenti to himself was reflected in his annual report to the members of the Association for 1991.
Valenti's fraud came to light in May 1992, when a $20,000 check drawn on the Association's account was returned for insufficient funds. To explain the bounced check, Valenti told Shamos that it had been returned because the bank had erroneously made certain wire transfers out of the Association's account. Valenti assured Shamos that he would have the error corrected. After several weeks of foot-dragging by Valenti, Shamos became suspicious. Shamos himself contacted Chase on June 12, 1992 and learned that there had been no wire transfers out of the Association's account during the period of the alleged bank error. Shamos also obtained photocopies of several of the checks Valenti had written to his wife.
The next morning, June 13, 1992, happened to be the date of the annual meeting of the Association. Valenti announced to Shamos, the board, and the membership that he had written the checks to his wife to reimburse himself for paying the premium for the Association's insurance policy in St. Maarten out of his own pocket. This was a lie, as Valenti had not paid the premium at all. Suspiciously, although at every annual meeting before 1992 Valenti furnished a financial report setting forth the Association's financial status and the balance in the Chase account, he did not provide such a report at the June 1992 meeting.
The defense case
Valenti's defense was that Shamos had agreed to pay him $2,000 per month for certain "consulting work" performed for the Association, and that the contested funds were actually legitimate payments owed to him. He called three witnesses.
Lucia Trifan, employed by Valenti as the supervisor of a St. Maarten apartment building apparently unconnected to the Caravanserai Hotel, testified that she attended a meeting with Valenti, Shamos and Shamos' wife in February 1990 at the Caravanserai Hotel, during which she overheard Shamos and Valenti talking "about $2,000 for salary monthly for Mr. John Valenti."
Martha Valenti, defendant's wife, recalled that, in early 1990, Valenti received a telephone call from Shamos, during which she overheard Valenti say "something about receiving a salary for or being reimbursed for--being reimbursed for expenses and also for something about his time, he was going to be paid for his time." Martha Valenti also stated that she "heard something about $2,000 per month." She further testified that in June 1991 she overheard Valenti's side of another telephone conversation with Shamos, in which Valenti said he expected "his salary to continue" but "since he was going to be spending considerably more time on the island [of St. Maarten] that the expenses would no longer need to be reimbursed."
Finally, Laura Rose, who ran a restaurant on St. Maarten, testified that she once overheard a snippet of a conversation between Valenti and Shamos at her restaurant in February 1990. She recalled that Shamos asked Valenti if the $2,000 included expenses, that Valenti said "I think it should," and that Shamos said "Oh, OK."
In rebuttal, the government re-called Shamos and asked if he ever had any conversation with Valenti about payment of compensation by the Association. Shamos answered, "None whatever." The district judge then questioned Shamos about the specific occasions mentioned by the defense witnesses where Shamos and Valenti allegedly discussed compensation. Shamos testified that the conversations never took place.
Valenti moved for a judgment of acquittal under Fed.R.Crim.P. 29 on the ground that the government failed to prove that he transported the checks knowing that they were stolen. (He had made a similar motion at the close of the government's direct case.) The district court denied the motion.
The jury convicted Valenti. At sentencing, the district court calculated a base offense level of four under U.S.S.G. Sec. 2B1.1(a). Nine levels were added pursuant to Sec. 2B1.1(b)(1) because the loss totalled $122,466. That figure included $59,000 from seven wire transfers predating the time frame specified in the indictment, plus $63,466 from the period covered by the indictment. Two points were added for abuse of a position of trust under Sec. 3B1.3, and two additional points were added for more than minimal planning, Sec. 2B1.1(b)(5). These calculations yielded a total offense level of 17. With a Criminal History Category I, the sentencing range was 24 to 30 months. The district court sentenced Valenti to 24 months' imprisonment, and ordered restitution of $122,466. Valenti now appeals.
Before trial, Valenti was contemplating a defense that some of the funds he took from April 1991 to May 1992 were to repay himself for a $24,000 "loan" he had made to the Association in 1990. The government indicated that, if he pursued this defense, it would introduce evidence of seven wire transfers Valenti made from the Association's account to his wife, his mother, and his business partner in 1989 and 1990, all of which predated the purported loan. The government proffered this evidence to show that, while he had indeed put $24,000 into the Association's account, it was hardly a loan to the Association, but rather an attempt to return some of the money Valenti had stolen through the wire transfers.
Valenti moved in limine to preclude the government from offering, under any circumstances (and regardless of whether he testified), evidence of the seven wire transfers. The district judge declined to rule prior to trial, stating that he was "going to see how the evidence is portrayed by counsel for the defendant and the prosecution and make my ruling at the time it becomes germane." Valenti never attempted to prove the loan; and the government never offered evidence of the seven wire transfers.
Valenti now contends that it was reversible error to leave open the possibility that the government might be allowed to introduce the evidence. His argument appears to run as follows: if he were to testify, the issue whether the funds he took from April 1991 to May 1992 were in repayment of the alleged $24,000 loan would "inevitabl[y] ... have been raised." Once the issue was "raised," Valenti faced the possibility that the government would be permitted to introduce evidence of the seven wire transfers. Since Valenti could not run that risk, he was effectively precluded from testifying. This argument is meritless.
In the first place, Valenti's briefs and appendix contain no indication that he renewed at trial his request for a ruling, a step...
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