United States v. Mosca

• Decision Date: 05 March 1973
• Docket Number: No. 354,72-1764.,Dockets 72-1750,355,354
• Citation: 475 F.2d 1052
• Parties: UNITED STATES of America, Appellee, v. Alphonso MOSCA, Sr., et al., Appellants.
• Court: U.S. Court of Appeals — Second Circuit

475 F.2d 1052 (1973)

UNITED STATES of America, Appellee, v. Alphonso MOSCA, Sr., et al., Appellants.

Nos. 354, 355, Dockets 72-1750, 72-1764.

United States Court of Appeals, Second Circuit.

Argued November 10, 1972.

Decided March 5, 1973.

Certiorari Denied June 18, 1973.

H. Elliot Wales, New York City (Gretchen White Oberman, New York City, on the brief), for appellants Alphonso Mosca, Sr., and Alphonso Mosca, Jr.

Henry Mark Holzer, Brooklyn, N. Y., for appellant Wolfson.

Allen Lashley, Brooklyn, N. Y., for appellant Zavod.

Marshall G. Kaplan, Brooklyn, N. Y., for appellant Emmons.

Sidney M. Glazer, Atty., Dept. of Justice, Washington, D. C. (Robert A. Morse, U. S. Atty., Brooklyn, N. Y., Denis E. Dillon, Liam S. Coonan and Shirley Baccus-Lobel, Attys., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before FRIENDLY, Chief Judge, and MANSFIELD and TIMBERS, Circuit Judges.

Certiorari Denied June 18, 1973. See 93 S.Ct. 3003, 3019.

TIMBERS, Circuit Judge:

Appellants Alphonso Mosca, Sr., Alphonso Mosca, Jr., Nathan Wolfson, Joseph Zavod and William Emmons appeal from judgments of conviction entered upon jury verdicts returned November 16, 1971 after an eleven day trial before John F. Dooling, District Judge, in the Eastern District of New York, finding each appellant guilty on one count of wire fraud, in violation of 18 U.S.C. § 1343 (1970), and on one count of conspiring to commit mail and wire fraud and of conspiring to harbor a fugitive, in violation of 18 U.S.C. § 371 (1970).¹

The chief issue raised on appeal by all appellants is whether the trial judge erred in denying their motions to set aside the verdicts and for new trials on the ground that the government failed upon request to make available to appellants a potential witness whose whereabouts was known to the government but not to appellants. Other subordinate claims of error are raised by several of the appellants.

We affirm.

I.

In view of the issues raised on appeal, a summary description of the fraudulent scheme and conduct for which appellants were convicted will suffice. Essentially the evidence established that defendants organized and used a straw corporation with a grossly misleading statement of assets (this corporation being funded by worthless debentures of another straw corporation) to purchase construction loan mortgages by the issuance of commitment letters. Such commitment letters were in the nature of guaranties; they commanded sizeable fees; but they were in fact worthless because of the absence of any assets in the issuing corporation.

Judge Dooling succinctly described the fraud charged as follows:²

"Broadly, the charge of the indictment was that the defendants had formed a scheme to defraud those seeking and those granting mortgage loans by forming a straw company having no real assets which would for a fee issue commitment or `take-out\' letters by which it bound itself to purchase construction loan mortgages made by lending institutions. Such commitment letters were meant to enable prospective borrowers to obtain mortgage financing for construction projects which the lending institutions would not otherwise finance because of their unwillingness to make long term real estate mortgage loans. The fraud consisted in defrauding prospective borrowers of the fees they paid for the worthless commitment letters and defrauding the lending institutions by inducing them to lend in reliance on the worthless commitment letters."

There was a great deal of evidence adduced at the two week trial in support of the foregoing charges. The evidence of course must be viewed in the light most favorable to the government at this stage of the case. United States v. D'Avanzo, 443 F.2d 1224, 1225 (2 Cir.), cert. denied, 404 U.S. 850 (1971). With the exception of appellant Wolfson, none of the appellants challenges the sufficiency of the evidence.

II.

What each of the appellants does challenge, however, is the trial judge's denial of their motions to set aside the verdicts and for new trials. Such motions were based on the claim that the government had sequestered a potential witness whose whereabouts was known to the government but not to appellants. A statement of the facts and proceedings in the trial court involving this claim is necessary to an understanding of our ruling thereon.³

The witness in question was Mrs. Edward Wuensche. She was the wife of Edward Wuensche, a named co-conspirator but not a defendant. He was the government's principal witness at the trial. It was he whom defendants were charged with having harbored as a fugitive. They allegedly furnished him with false identification papers so that, under a fictitious name, he could act as an officer of the straw corporation formed to issue commitment letters.

The question of the whereabouts of Mrs. Wuensche was first raised during cross-examination of Edward Wuensche by counsel for defendant Emmons.⁴ He demanded that the government either produce Mrs. Wuensche or disclose her whereabouts so she could be subpoenaed. Government counsel informed the court that she was a British national, that she was not within the continental United States and that she was beyond the process of the court.

While there was much backing and filling during the balance of the trial on the demand for production of Mrs. Wuensche and numerous proposals were made to provide her testimony or its equivalent in some form, the primary purpose of defense counsel at the time of trial was to lay a basis for requesting the court to charge that the jury might infer from the withholding of a witness within a party's control that the testimony of such witness would be unfavorable to the party failing to call the witness. As counsel for defendant Emmons candidly stated, "Judge, all I want is this Charge." The court eventually charged the jury on this issue substantially as requested by defense counsel.⁵

Going back for a moment to the point in the trial when the evidence had been concluded,⁶ on Thursday, November 11, 1971, the court excused the jury until the following Monday, November 15, but recessed the trial to the following day, November 12, at which time counsel and defendants were present. After an extended colloquy on November 12 between counsel and the court on the unavailability of Mrs. Wuensche as a witness, there finally emerged from counsel for defendant Emmons an unequivocal application for issuance of a subpoena to compel her attendance as a witness. The court immediately granted the application. It ordered that a subpoena made returnable the following Monday, November 15, be served on Mrs. Wuensche, and that she be tendered sufficient government funds to provide for her transportation to the courthouse.

On the next court day, November 15, government counsel informed the court that over the weekend efforts had been made by a United States Marshal to serve the subpoena on Mrs. Wuensche and that she had been tendered transportation expenses. She refused to accept service of the subpoena and refused to come to the trial. Government counsel further reported that his efforts to speak with Mrs. Wuensche by telephone had been met with a refusal on her part to come to the phone. And finally government counsel reported that his efforts to have Mr. Wuensche persuade Mrs. Wuensche to appear at the trial likewise had failed to produce the witness.

Despite such efforts, defense counsel continued to press for an explanation as to why the witness was beyond the subpoena reach of the court. Government counsel stated that the present location of Mrs. Wuensche reflected a decision of the McClellan Subcommittee of the Senate Judiciary Committee, before which Mr. Wuensche had appeared as a witness at an earlier date. When defense counsel pointed out that there was no evidence of that in the record, Judge Dooling stated that "if the defendants wanted a full dress investigation the Court would request the Government to delay the trial and afford defendants an opportunity to take Mrs. Wuensche's deposition at some place other than her then place of refuge on the issue of her willingness to appear as a witness, the reason why she was where she was and what her apprehensions were."⁷

Counsel for defendant Emmons immediately responded, "Well, I am ready to sum up, Judge." He indicated that in summation he intended simply to tell the jury that "Mrs. Wuensche had not appeared to support her husband's testimony." He did.⁸ Following summations by all counsel, Judge Dooling charged the jury, including the instruction requested by the defense on the government's failure to call Mrs. Wuensche as a witness.⁹ This concluded the November 15 trial proceedings.

On the following day, November 16, the jury returned its verdict convicting appellants on Counts One and Two and acquitting them on Count Three. After the jury had been discharged, Judge Dooling invited counsel to file any appropriate motion to determine (a) the facts with respect to Mrs. Wuensche's availability as a witness; (b) the explanation of her unavailability if it existed; (c) whether she was testimonially qualified as a witness in the case; and (d) if so, what the contents of her testimony would have been.¹⁰ Upon the filing of such a motion by appellants Emmons, Wolfson and Zavod,¹¹ Judge Dooling entered an order on February 7, 1972 authorizing counsel for Emmons (representing Wolfson and Zavod as well) to attend the taking of Mrs. Wuensche's deposition in London, England, and to be reimbursed by the government for his expenses in doing so. Pursuant to a commission issued to counsel for Emmons, the deposition of Mrs. Wuensche was taken at the American Embassy in London on March 9 before an American Vice-Consul. The witness was examined on direct by counsel for Emmons, on cross by government counsel. The deposition, after being transcribed, was signed and sworn to by Mrs. Wuensche on March 16. It was filed in the district court on April 6....