U.S. v. Yefsky

• Decision Date: 07 December 1992
• Docket Number: No. 90-1174,90-1174
• Citation: 994 F.2d 885
• Parties: UNITED STATES of America, Appellee, v. Sheldon Arthur YEFSKY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 885

994 F.2d 885

UNITED STATES of America, Appellee, v. Sheldon Arthur YEFSKY, Defendant, Appellant.

No. 90-1174.

United States Court of Appeals First Circuit.

Heard Dec. 7, 1992.

Decided May 3, 1993.

Theodore L. Craft, Boston, MA, for appellant.

Louis M. Fischer, Atty., Dept. of Justice, Washington, DC, with whom A. John Pappalardo, U.S. Atty., Boston, MA, was on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

COFFIN, Senior Circuit Judge.

Sheldon Yefsky was convicted by a jury of a dual-object conspiracy, in violation of 18 U.S.C. §§ 371 and 1341, and of four counts of mail fraud, unrelated to the conspiracy, in violation of 18 U.S.C. § 1341. On appeal, Yefsky raises a number of challenges to his conviction. After an exhaustive review of the record, we affirm.

I.

We begin with a brief description of the facts and proceedings.

The Greater Boston Police Council (GBPC) was formed in the early 1960s as a mutual aid society for various metropolitan area law enforcement agencies. The GBPC enabled its members to purchase equipment at reduced prices pursuant to collective purchase agreements. As an unincorporated association, the GBPC relied on one of its members to act as its fiduciary agent.

At all times relevant to this case, the Town of Newton, whose police chief William Quinn served as the chair of the GBPC, fulfilled that role. Quinn, in turn, relied heavily on Timothy Coogan, a civilian employee of the police department, to conduct the daily operations of the GBPC. Coogan became a full-time employee after graduating from law school and ended his affiliation with Newton in mid-1985, when the offenses underlying this case surfaced.

A primary concern of the GBPC was the inability of the member police departments to communicate with each other by radio. To solve this problem, the GBPC undertook a project to develop an integrated radio system for its members. This system became known as the Boston Area Police Emergency Radio Network (BAPERN).

In 1975, the GBPC hired a Chicago-based firm, Computer and Engineering Services (CES), of which Yefsky is president, to assess the existing radio systems. One year later, CES was awarded a bid contract of $31,000 to design and implement BAPERN. The system used Motorola equipment, which was available at a discount through a GBPC collective purchase contract.

By June 1978, BAPERN was fully operational, connecting 23 cities and towns, and Coogan had became the BAPERN project director and general counsel and administrator for the GBPC. In these capacities, Coogan exercised financial and administrative control of GBPC affairs, including the BAPERN project. He encouraged organizations to join BAPERN and recommended CES to them for engineering and design work. Coogan alone received shipping orders from BAPERN members to the GBPC, prepared GBPC/Newton shipping orders to CES and Motorola, approved invoices from these businesses to the GBPC/Newton for payment, prepared bills from the GBPC/Newton to the BAPERN members, and received the members' payments. Newton officials, including Quinn, merely rubber stamped his work. Coogan was, in many respects, the person most identified with the GBPC.

In 1985, the Internal Revenue Service (IRS) began an investigation of Coogan, which revealed large amounts of income that he had not reported to the IRS. The unreported income stemmed from two sources. First, Coogan had become a paid consultant to International Telecommunications Service, Inc. (ITS), a subsidiary of CES, to perform engineering field work on the BAPERN system. Second, Coogan had overcharged GBPC members for radio equipment and had diverted the overcharge to a secret bank account for his personal use.

In 1989, Coogan, Yefsky, his son Michael Yefsky, the president of ITS, and Samuel Diamond, the financial officer and tax preparer for CES and ITS, were charged with numerous criminal violations stemming from their involvement in the BAPERN project. The indictment charged the existence of two separate schemes to defraud members of the GBPC and charged Coogan alone with tax fraud for concealing his illicit profits from both schemes (Counts 2-4).

The first scheme charged was a conspiracy involving all four defendants (Count 1). The goals of the conspiracy were to pay Coogan kickbacks for sending engineering work to CES and to help him hide that income from the IRS. The kickbacks were the payments ITS made to Coogan, allegedly for his field services. At trial, the government explained that the kickbacks were financed by charging GBPC members for engineering services that were unnecessary or never were performed or by overcharging for work actually done.

The second intrigue implicated Coogan and Yefsky in a mail fraud scheme based on the equipment overcharge and diversion of funds for Coogan's personal use (Counts 5-14). The government consistently has admitted that this was a scheme distinct from the engineering conspiracy. The mailing of ten payments for equipment, maintenance fees, and BAPERN expansion fees by member organizations comprised the individual mail fraud counts.

A tedious and rambling trial stretching 86 days ensued. Over 1000 exhibits were admitted, with more than half subjected to limitations as to the various counts and defendants. The government alone consumed 44 days and 878 exhibits to present its case-in-chief. Yefsky used another 24 days and 376 exhibits to present his defense. The thrust of his defense was that he did not join in either the conspiracy or the equipment scheme but was a pawn of Coogan.

At the trial's conclusion, the jury convicted Coogan of all 14 counts against him. It convicted Yefsky of the conspiracy count and 4 of the 10 mail fraud counts. It also convicted Michael Yefsky and Diamond of the conspiracy count, the only charge against them.

During the proceedings below, Yefsky made many motions, the decisions of which form the bases of this appeal. These motions include a motion for acquittal based on insufficiency of the evidence; a motion to dismiss the indictment for insufficiency and double jeopardy; a motion for severance; and an omnibus motion for a new trial that reiterated many of these issues as well as errors at trial.

Yefsky, his son, and Diamond appealed their convictions. The government then conceded the insufficiency of the evidence supporting the convictions of Michael Yefsky and Diamond, and the verdicts against them were set aside and dismissed. United States v. Yefsky, Memorandum and Order, Nos. 90-1222, -1240 (1st Cir. Jan. 29, 1993). Coogan did not appeal his conviction. Yefsky's appeal remains, and we turn now to the issues he raises.

II.

Yefsky contends that the district court erred in denying his motion, renewed at close of trial, for acquittal based on insufficiency of evidence. When reviewing a motion for acquittal, we consider the evidence in the light most favorable to the prosecution. United States v. Torres Lopez, 851 F.2d 520, 527 (1st Cir.1988). We, therefore, "draw[ ] all legitimate inferences and resolv[e] all credibility determinations in favor of the verdict." United States v. Angiulo, 897 F.2d 1169, 1197 (1st Cir.1990).

A. The Conspiracy Count

To support a verdict of guilt, the evidence must prove each element of a conspiracy beyond a reasonable doubt. These elements are the existence of a conspiracy, the defendant's knowledge of it, and his voluntary participation in it. United States v. David, 940 F.2d 722, 735 (1st Cir.1991). To prove voluntary participation, the government must show that the defendant intended both to agree with his co-conspirators and to commit the substantive offense. Id. Moreover, when the commission of mail fraud is a goal of the conspiracy, the government must show either an intent to use the mails or the reasonable foreseeability of such use. United States v. Dray, 901 F.2d 1132, 1137 (1st Cir.1990). We turn now to the facts that the jury reasonably could find in support of the verdict.

In 1979, the relationships among the GBPC, Coogan, and Yefsky changed, allowing the conspiracy to germinate. First, Coogan was forced to leave regular employment with the Newton Police Department because he was maintaining a private law practice. He became instead a consultant to the Department and, in 1980, to the GBPC. His duties, however, remained the same: assistant to Quinn (as police chief and GBPC chair), administrator of and general counsel to the GBPC, and project director of BAPERN. In addition, his contracts permitted him to engage in other telecommunications consulting work.

Second, government funding and oversight of the BAPERN project ended. Coogan then prepared an open-ended consulting contract for CES that defined its role during the expansion of BAPERN. The new contract called for CES to provide engineering services as requested by shipping orders issued through Newton on behalf of the GBPC members.

The CES contract did not permit CES to use subcontractors without written consent from Newton. Nonetheless, in December 1979, CES entered a contract with ITS by which ITS would perform field implementation studies and services for various CES projects, including BAPERN, and CES would pay ITS's salaries and overhead expenses.

At some point during this period, Coogan approached Yefsky, proposing to become CES's local "clerk of the works" for the BAPERN project. In December 1979, Coogan entered a contract with ITS to provide field engineering; site, installation and testing supervision; and training for the BAPERN expansion. Unlike Yefsky's other subcontractors, Coogan was paid a fixed price for each project on which he worked and was not required to submit time sheets to corroborate his fee. Neither Yefsky nor Coogan ever revealed their subcontracting relationship to the GBPC. Coogan, in fact, repeatedly denied to Chief Quinn engaging in any outside telecommunications consulting work.

From 1980 to...