United States v. Fassoulis, 355

• Decision Date: 19 July 1961
• Docket Number: No. 355,Docket 26684.,355
• Citation: 293 F.2d 243
• Parties: UNITED STATES of America, Appellee, v. Satiris Galahad FASSOULIS, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

293 F.2d 243 (1961)

UNITED STATES of America, Appellee, v. Satiris Galahad FASSOULIS, Appellant.

No. 355, Docket 26684.

United States Court of Appeals Second Circuit.

Argued May 22, 1961.

Decided July 19, 1961.

William F. Hamilton, New York City, for appellant.

David R. Hyde, Asst. U. S. Atty., Southern District of New York, New York City (Robert M. Morgenthau, U. S. Atty., and George I. Gordon, Asst. U. S. Atty., S.D.N.Y., New York City, on the brief), for appellee.

Before CLARK, HINCKS and WATERMAN, Circuit Judges.

HINCKS, Circuit Judge.

After trial from October 3 to October 11, 1960, before Judge Kaufman, a jury having been duly waived, the appellant was found guilty of having devised a scheme to defraud one A. Mitchell Liftig by means of false representations and having caused the transmission of a communication by interstate wire for the purpose of executing the fraudulent scheme. This appeal is from the resulting judgment of conviction.

The facts as he found them were set forth in a lucid statement by Judge Kaufman at the close of the trial.¹ This statement, since not elsewhere published, we will include in full as an appendix to this opinion. Without restatement or repetition, we will assume familiarity with the contents of that statement.

The appellant asserts — and rightly so — that to warrant a conviction the government had to prove beyond a reasonable doubt (a) that the defendant devised a scheme to defraud Liftig by means of false representations and (b) caused a communication by interstate wire for the purpose of executing said scheme. His main ground of appeal is that in several aspects such evidence was wanting. Thus he contends that there was no proof of an intent to defraud Liftig — that numerous false representations he had made to Liftig in the course of their business relations were in fact made in the hope of preventing Fox, his friend and creditor, from foreclosing on the Whitehead Company stock which he had pledged with Fox to secure his debt to Fox. The evidence, however, and especially the testimony of Liftig, Moraites and Purcell, fully warranted the inference that Liftig was the intended victim of a scheme to bring about a merger of four corporations in which Liftig had substantial interests with the hollow corporate shell of the Continental Chartering & Shipping Corporation then owned by the appellant and that, contrary to appellant's contentions, the loan by the First National Bank of Akron, Ohio to Continental on the security of $346,000 in American Telephone and Telegraph debentures (which shortly thereafter proved to be spurious) was brought about by the appellant, who had provided the debentures, for the purpose of executing said scheme. It is true that some of the testimony of the appellant's witness Fox tended to absolve the appellant of fraudulent intent. Nevertheless, there was ample testimony to support the underlying facts recited in the trial judge's findings and on these facts the inferences and conclusions reached were reasonable and, indeed, highly convincing. At the trial it was admitted that in the course of his dealings with Liftig the appellant in unsuccessful efforts to achieve the objective of the scheme had made several false representations and the falsity of still others was established by necessary inferences. It was reasonable to find that the loan from the Akron bank was still another such effort.

The appellant also attacks the sufficiency of the evidence to prove the making and the interstate character of the telephone call on December 15, 1955 by Heller of the Akron bank to Rommel of the Chemical Corn Exchange Bank at New York instructing him to pay to Continental $350,000 on the receipt of $346,000 face value A. T. & T. debentures. He contends that the evidence on this issue was inadequate in that Heller did not testify in detail as to the mechanics in placing the call and that neither he nor Rommel testified that either was able to identify the voice of the other as it came over the wire. But of course such testimony is not a requisite to the admissibility of the call when the parties at both ends of the line testify to the call. Perhaps somewhat more substantial is the appellant's objection that there was no evidence of the geographical location of each participant when the call went through from which the interstate character of the wire carrying the communication might be determined. As to this, Heller testified that on the morning of December 15, "there was received by us" through Continental's loan broker Continental's note for $350,000, a certificate of the corporate vote authorizing the loan with a letter dated December 14 addressed to "First National Bank of Akron, Akron, Ohio," and that on December 15, after receipt of these papers covering the loan, he "called the Chemical Bank, Mr. Rommel." Especially in the context of his testimony followed by Rommel's, we think it reasonable to infer that he was in Akron when he had this telephone talk with Rommel at the Chemical Bank in New York. Moreover, there was in evidence both Akron's office copy of a telegram, also dated December 15, confirming the telephone conversation, which was expressly directed to the Chemical Bank, "NWYK," and Chemical's copy of this same telegram as received by Rommel, according to his undisputed testimony, via Chemical's main office at 30 Broad Street. We find no deficiency in the proof of the interstate character of the telephone call: it is corroborated by the written evidence of the telegram copies. The appellant cites McCormick on Evidence, pages 404 and 405. We find nothing in that text in conflict with our conclusions. Indeed, irrespective of the telephone call the proof of the telegram was enough to establish a communication by interstate wire within the purview of 18 U.S.C.A. § 1343. Our conclusion is not vitiated by the fact that in the telegram, and perhaps in the telephone call, Continental was designated as "Commercial Chartering and Shipping Corp." The record makes it plain beyond the peradventure of any doubt that this was a clerical slip wholly without effect on any issue. Even the appellant made nothing of the point on trial or on his main brief on appeal.

In his main brief the appellant lists several other claims of error based upon alleged deficiencies of proof as to the incidents of the alleged fraudulent scheme all of which were overruled in the opinion below. He says the proof must show that he intended to deprive Liftig of "money or property." We think that was shown. Liftig had a property interest in the four corporations which the appellant sought to merge with Continental and, if the merger had been brought about by misrepresentations attributing fictitious value to the appellant's proposed contribution to the merger, the effect necessarily would have been to deprive Liftig of the full value of his contribution to the merger. All the false representations proved and conceded, including the implied representation that the A. T. & T. bonds were genuine when the appellant provided them as collateral for Continental's loan, were material in that each tended to bring Liftig's corporations into the merger.

We agree with the court below that on the evidence it would have been naive to believe that the appellant did not know throughout that the A. T. & T. bonds he provided as collateral were spurious. We agree with the government, however, that such knowledge was not essential to its case. For beyond doubt, the loan transaction, in which the interstate wires were used, was a step in the scheme to lure Liftig into the merger: it would serve to bring the S. S. Whitehead into Continental and thus satisfy a condition upon which Liftig would bring his corporations into Continental. The loan transaction was proved beyond dispute and even if the government failed to prove that the appellant falsely represented the genuineness of the bonds, as charged in paragraph 4 of the indictment, it was enough to support a conviction if the government proved a scheme to defraud by one or more of the false representations charged in paragraph 3.

The appellant also claims fatal variances between the indictment and the proof in various trifling matters. We find no merit whatever in these claims.

Lastly, the appellant predicates error on the denial by Judge Dimock of his pre-trial motion to dismiss as a violation of his right to a speedy trial as guaranteed by the Sixth Amendment and Rule 48(b) of Fed.Rules Crim.Proc., 18 U.S.C. This point is based upon the fact that although the appellant had been arrested on December 28, 1955 on a complaint charging a violation of 18 U.S.C. § 1343, he was not indicted until October 1959. Then, on October 30, 1959, having at his own request obtained an adjournment until November 4, he moved to dismiss the indictment on the ground that he had been denied a speedy trial in violation of the Sixth Amendment. This motion was denied by Judge Dimock in an opinion reported in 179 F.Supp. 645. As to this point we affirm on Judge Dimock's opinion below.

Affirmed.

APPENDIX

"The Court: At the outset, I want to commend counsel for both sides for their able presentation of this case and for their courteous demeanor during the course of this case.

"Since this case was tried before me without a jury, it is my function to determine the facts and to adjudicate the ultimate question of guilt or innocence based on the law as I interpret it.

"Previously, on the defendant's motion for a judgment of acquittal made at the close of the prosecution's case, I held in effect that there was sufficient evidence in the record upon which a finding of guilt could be based.

"Now, at the conclusion of the entire case, after carefully considering all the evidence, I find that the government has established beyond a reasonable doubt that the defendant violated 18 U.S.C., Section 1343, proscribing the use of the wires to defraud. Thus, I find the defendant...