United States v. Colonial Motor Inn, Inc., 7794.

• Citation: 440 F.2d 1227
• Decision Date: 10 March 1971
• Docket Number: No. 7794.,7794.
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellee, v. COLONIAL MOTOR INN, INC., and Maurice Shear, Defendant, Appellant.

440 F.2d 1227 (1971)

UNITED STATES of America, Appellee, v. COLONIAL MOTOR INN, INC., and Maurice Shear, Defendant, Appellant.

No. 7794.

United States Court of Appeals, First Circuit.

Heard March 1, 1971.

Decided March 10, 1971.

John D. Dwyer, Boston, Mass., with whom Lawrence R. Cohen and Newton H. Levee, Boston, Mass., were on brief, for defendant, appellant.

Everett C. Sammartino, Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

A corporation, and Shear, the present appellant, were indicted for making a false statement for the purpose of influencing the Small Business Administration to grant a loan to the corporation. The specific statement was that the corporate defendant owed one John J. Shea $10,000 for work and improvements. As a result of its making the loan, the Small Business Administration forth-with paid $10,000 to Shea. At the trial the government called a Mrs. Lowery, who described herself as being, at the time in question, Shea's business manager and right hand. She testified that Shea was deceased, and that after his death Shear had admitted to her that Shea had never done the work. There was evidence that Shea did not keep the money, but paid it over to a company in which Shear was interested.

On cross-examination defendant inquired whether the witness "filed Mr. Shea's income tax for him?" Upon the government's objection, defendant stated that the purpose was to test the credibility of the witness. At the bench the defendant made an offer of proof that Shea did not keep income tax records, and that the witness was afraid that if it was determined that Shea did the work and was paid, both she and Shea's estate would be in trouble. "There were fraudulent income tax returns." The court ruled that this was "an ingenious argument, but not proper inquiry to impeach credibility."

Thereafter the government argued to the jury as follows:

"You can judge Mrs. Lowery\'s testimony. What reason would she have to lie? She has nothing to gain or lose from this whole affair. Nothing at all. Not one thing."

The defendants were convicted, and Shear appeals.

This is an unusual case, for what the defendant was attempting to show was, in effect, a prior consistent statement, normally a way of supporting a witness, not of attacking him. However, the matter went deeper. What defendant was really seeking was to demonstrate that the...