United States v. Eury, 294

• Decision Date: 06 July 1959
• Docket Number: No. 294,Docket 25508.,294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roger A. EURY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

268 F.2d 517 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. Roger A. EURY, Defendant-Appellant.

No. 294, Docket 25508.

United States Court of Appeals Second Circuit.

Argued May 5, 1959.

Decided July 6, 1959.

COPYRIGHT MATERIAL OMITTED

Arthur E. Rosenberg, Rochester, N. Y., for defendant-appellant.

John O. Henderson, U. S. Atty., W. D. N. Y., Buffalo, N. Y. (Frederick W. Danforth, Jr., Roderick M. Cunningham, Robert J. Plache, Asst. U. S. Attys., Buffalo, N. Y., of counsel), for plaintiff-appellee.

Before CLARK, Chief Judge, WATERMAN, Circuit Judge, and GALSTON, District Judge.

WATERMAN, Circuit Judge.

After a jury trial in the Western District of New York defendant was found guilty under 18 U.S.C. § 1010¹ of knowingly uttering and publishing a false Federal Housing Administration down payment certificate for the purpose of obtaining a loan insured by that agency. From a judgment of conviction and from an order denying a motion for a new trial, defendant brings this appeal.

During 1951 defendant operated a plumbing and heating contracting business in the vicinity of Rochester, New York. In the fall of that year defendant's uncle, John Eury, contemplated an addition to the rear of his home in the town of Chili, New York and discussed the matter with defendant on several occasions. They finally agreed that defendant would be the contractor for this improvement, that John Eury would work part time on it, and that they would seek to have it financed by an FHA loan from the Central Trust Company in Rochester, New York in the amount of $2500. The FHA regulations required that a down payment be made of at least 10% of the cost of the project, and, accordingly, the application for the loan stated that John Eury had made a down payment in the amount of $350 to defendant. This information was also contained in an "FHA Title I Cash Down Payment Certificate," certified as "true and correct" by defendant. It is this certification which constitutes the crime of which defendant was convicted. Defendant, who took the stand in his own defense, did not deny signing the certificate or assert that a cash down payment had been made to him by his uncle. However, he did testify that John Eury had built up credits with him of approximately $350 during the course of their previous relationship and that these credits constituted the necessary down payment. John Eury contradicted defendant. He testified that he had not furnished defendant with a $350 down payment as certified in the down payment certificate either in the form of cash or credits. Defendant does not contend that the jury could not properly have believed John Eury instead of him; nor does he contend that the elements of the crime charged were not proven; but he does raise points, each of which he claims entitles him to a new trial.

In his opening statement to the jury the prosecutor stated that the defendant had received the proceeds of the loan, and John Eury so testified. In addition, defendant was cross-examined on this point. John Eury also gave evidence tending to show that the improvement contract between the parties was incompletely performed and that only a small portion of the loan proceeds were expended upon it. He further testified that the estimated cost of the improvement was $1500 rather than $2500, and that defendant had agreed to give him $600 out of the $2500 so that he could pay some "back bills." On the theory that it bore upon the question of defendant's intent all of this evidence was admitted by the district court over defendant's objections. Appellant's first point is that this evidence was irrelevant and incompetent and therefore was erroneously admitted. It is our belief that this claim of error is without merit, and that the district court was correct in its determination that this evidence was relevant as bearing upon the question of defendant's intent to make a false certification. One cannot be convicted under 18 U.S.C. § 1010 for inadvertently making a mistaken certification; on the contrary in order to convict it must be shown that defendant's false statement was knowingly made. We think the trial judge acted properly in admitting the testimony defendant objected to. For it seems quite clear to us that it all tended to demonstrate that the defendant executed his certificate knowing of its falsity. See McDonold v. United States, 5 Cir., 1952, 200 F.2d 502; United States v. Rubenstein, 2 Cir., 1945, 151 F.2d 915, certiorari denied, 1945, 326 U.S. 766, 66 S.Ct. 168, 90 L.Ed. 462. As this testimony was relevant to proving an aspect of the crime charged it was competent to be given to the jury even though it showed conduct on the part of the defendant characterized by him as degrading and criminal. As we have so often held, evidence relevant to the proof of one crime is not incompetent because it discloses the commission of another. United States v. Kiamie, 2 Cir., 1958, 258 F.2d 924, certiorari denied, 1958, 358 U.S. 909, 79 S.Ct. 236, 3 L.Ed.2d 230; United States v. Glory Blouse & Sportswear Co., 2 Cir., 1947, 158 F.2d 880; United States v. Epstein, 2 Cir., 1946, 154 F.2d 806, certiorari denied, 1946, 328 U.S. 858, 66 S.Ct. 1350, 90 L.Ed. 1629; United States v. Rubenstein, supra; United States v. Davis, 2 Cir., 1945, 151 F.2d 140, affirmed, 1946, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453, rehearing denied, 1946, 329 U.S. 824, 67 S.Ct. 107, 91 L.Ed. 700; Vause v. United States, 2 Cir., 1931, 53 F.2d 346, certiorari denied, 1931, 284 U.S. 661, 52 S.Ct. 37, 76 L.Ed. 560.

Defendant maintains for his second point that the district court erroneously charged the jury. The only significant factual dispute which arose during the course of the trial was whether a credit of $350 had been accumulated. After instructing the jury that it was not necessary for the down payment to have been paid over in cash and that a credit accumulation would have been sufficient, the court went on to say:

If you are convinced by the testimony that that was the fact and that on December 19, 1951 on the date of this transaction when the down payment certificate was filed with the bank that the defendant had previously accumulated for John Eury a valid and bonafide sic credit for funds that were due John Eury from the defendant, and that under that arrangement this credit was to be allocated to this projected improvement, then that would have been properly considered as a cash down payment and would have been compliance with the law and regulation. If that was the fact the down payment certificate would not have been false. That is the disputed question of fact, and it is for the jury to resolve.

It is defendant's contention that though the burden was on the Government to prove that a down payment of $350 was not made, the court by the use of the words "If you are convinced * * *" improperly shifted to defendant the burden of proving that the down payment was in fact made. While we do not approve the district court's choice of language, we cannot say that the use of that ill-chosen phrase constitutes reversible error. The district court had...