Professional Documents
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United States v. Colonial Motor Inn, Inc., and Maurice Shear, 440 F.2d 1227, 1st Cir. (1971)
United States v. Colonial Motor Inn, Inc., and Maurice Shear, 440 F.2d 1227, 1st Cir. (1971)
2d 1227
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.
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."
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"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."
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 witness had, by virtue of her participation
in Shea's business affairs, a personal motive for denying Shea's entitlement to
the money. If Shea had in fact done the work, the receipt of the payment would
have been a taxable transaction, possibly subjecting her to penalty if not
reported, whereas if he had merely acted as a conduit any violation of the
income tax law in failing to report the transaction might have been technical
and de minimis.
no offer of proof, as such, was needed. All that was necessary in response to the
court's question was an explanation of the general purpose of the inquiry. This
was sufficiently accomplished.
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