United States v. Portner
| Decision Date | 22 June 1972 |
| Docket Number | Docket 71-1826.,No. 264,264 |
| Citation | 462 F.2d 678 |
| Parties | UNITED STATES of America, Appellee, v. Nathan PORTNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Howard Wilson, Peter F. Rient, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.
Henry K. Chapman, New York City, for defendant-appellant.
Before WATERMAN, SMITH and TIMBERS, Circuit Judges.
The appellant, Nathan Portner, was indicted on July 23, 1970, along with two employees of the Merchants Bank of New York, Rebecca Tolkoff and Joseph Calabro, for conspiracy willfully to misapply monies of the bank and to make false entries in the bank's books with intent to injure and defraud the bank and to deceive its officers, in violation of 18 U.S.C. §§ 371, 656, and 1005. The conspiracy was alleged to have existed continuously from August 1959 to June 1968. In addition to the conspiracy count, there were 70 additional substantive counts in the indictment, charging that the three co-defendants regularly made false entries in the bank's records on the last banking day of each month and on the succeeding first banking day of the next month from July 30, 1965 to June 3, 1968, in violation of 18 U.S.C. §§ 1005 and 2. These substantive counts were also listed as overt acts done in furtherance of the conspiracy charged in the conspiracy count. At the conclusion of a three day trial before Judge Tyler, sitting without jury in the United States District Court for the Southern District of New York, the judge was satisfied that the Government had proved beyond a reasonable doubt the guilt of appellant on all of the counts and, from the bench, in a lengthy statement orally gave his substantiating findings and his conclusions of law thereon.1
The single issue before us is whether the court below erred in refusing to hold that prosecution of Portner was barred by the five-year period of limitation provided for by 18 U.S.C. § 3282. The pertinent facts relating to this issue are detailed below. We affirm the conviction.
The defendant in 1959 was doing business with the Merchants Bank of New York under the name of Car Buyers. Sometime in May of that year Portner telephoned the head bookkeeper at the Canal Street office of the bank, Rebecca Tolkoff, in order to find out which of his checks had been cashed. This was the first of several telephone calls of a similar nature. By early July Miss Tolkoff was sufficiently acquainted with Portner's account so that she agreed with him to honor for payment a few of his checks when presented despite the fact that he had insufficient funds on deposit for them to be paid in ordinary course.
In order to further their conspiratorial scheme the unpaid sums of these checks written by Portner on the Car Buyers account were falsely charged against other unrelated accounts, accounts which always had relatively large balances of around six figures month by month. Within a week after Portner and Tolkoff had entered into their agreement Tolkoff had set aside checks totaling $26,000 drawn on the Car Buyers account before any charges or debits were made against that account.
Portner, however, was in tough financial straits and, despite repeated reassurances to Miss Tolkoff that he would deposit sufficient funds to pay his overdrafts, he did not bring in any money to cover the improperly paid checks. After the scheme had been in operation for a couple of weeks Tolkoff was nervous enough about the situation to consult with her superior, Joseph Calabro, on the matter.
Calabro, who was the head bookkeeper for the entire Merchants Bank, then called Portner and received basically the same assurances that Portner had been giving Becky Tolkoff. So convinced was Calabro that Portner would ultimately make his bad checks good that Calabro, himself, collaborated with Tolkoff and Portner and later agreed to the payment of an additional $12,500 worth of Car Buyers checks by debiting other customer accounts, which was done by charging a large account at the start of each month with the full amount of the shortage and at the end of the month that shortage would be removed before the account received its monthly statement, and for the period of a day or two at the end of each month the shortage would not be discovered because of inter-branch transfer of accounts. This method, begun in 1959, was continued until mid-1968.
In August 1959 the Car Buyers account was closed out, a new account was opened, and other arrangements were made, but the upshot of it all was that by November 1959 the amount of misapplied monies had increased to...
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