655 F.

2d 478

UNITED STATES of America, Plaintiff-Appellee,

v.
Richard J. GORDON, Defendant-Appellant.
No. 1318, Docket 80-1327.

United States Court of Appeals,

Second Circuit.
Argued April 21, 1981.
Decided July 28, 1981.

William J. Dreyer, Sp. Asst. U.S. Atty., Albany, N.Y., George H. Lowe,
U.S. Atty., N.D. of New York, Albany, N.Y., for plaintiff-appellee.
Lawrence H. Schwartz, Stiller, Schwartz & Kaswell, P.C., Washington,
D.C. (Barry H. Gottfried, Barbara Kammerman, Washington, D.C., of
counsel), for defendant-appellant.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge and Bonsal,*
District Judge and Bonsal,* .
BONSAL, District Judge:
Richard J. Gordon appeals from a judgment of conviction on nine counts
after a jury trial in the United States District Court for the Northern
District of New York (James T. Foley, J.). An indictment filed on
November 2, 1979 charged Gordon with eight counts of mail fraud, in
violation of 18 U.S.C. 1341, and one count of interstate transportation of
stolen property, in violation of 18 U.S.C. 2314. A second indictment,
filed on March 28, 1980, charged Gordon with one count of making a
false statement to a bank, in violation of 18 U.S.C. 1014, and one count
of interstate transportation of stolen property.
By order dated May 30, 1980, the two indictments were consolidated.
Following a three-week jury trial, Gordon was convicted on Counts 1, 2,
and 4-8, charging mail fraud; Count 9, charging the interstate
transportation of stolen property; and Count 10, charging the making of a
false statement to a bank.

On July 25, 1980, Gordon was sentenced to five years' imprisonment on

each of Counts 1, 2, and 4-9, the periods to run concurrently; to a fine of
$10,000 on Count 9; and to a term of imprisonment of two years on Count
10 of the indictment, to run consecutively.
Gordon does not contest the sufficiency of the evidence; he appeals on a
number of procedural grounds, challenging various rulings by Judge Foley
before and during the trial. See United States v. Gordon, 493 F.Supp. 808
(N.D.N.Y.1980) (Gordon I ); United States v. Gordon, 493 F.Supp. 814
(N.D.N.Y.1980) (Gordon II ); United States v. Gordon, 493 F.Supp. 822
(N.D.N.Y.1980) (Gordon III ).
We affirm.
THE FACTS
During the time specified in the indictments, Gordon was the president of
Lifelines Management Corp. ("Lifelines"), a corporation operating in
Latham, New York which performed financial and tax planning services
for businesses and individuals. Gordon also served as the president of
other enterprises in the fields of insurance and investment planning.
The jury found that Gordon devised a scheme to defraud three
individuals,1 Dominic Capone, Elizabeth Merkel, and Donald Green, Jr.,
by inducing them through false pretenses to pay for the purchase of
certificates of deposit and telephone equipment to be leased for tax
purposes. Proof at trial established that Gordon received from Capone in
excess of $200,000. Gordon represented that at least $100,000 of this
money would be invested in certificates of deposit. Gordon purchased no
certificates of deposit for Capone. Instead, through a series of bank
transfers, Gordon converted the money to his own use.
The jury also found that Gordon defrauded Elizabeth Merkel in a similar
fashion by obtaining over $240,000 from her upon the representation that
the money would be invested in certificates of deposit. Merkel, like
Capone, received periodic "interest" payments, drawn from Gordon's
personal funds, which he represented to be interest accrued on certificates
of deposit. Proof at trial established that Gordon made false statements to
a bank for the purpose of obtaining a loan of $75,000 in Merkel's name.
The jury also found that Donald Green paid $28,000 to Gordon for
investment in a "phone lease," which Gordon had described to Green as a
tax shelter involving the leasing of a telephone system. Gordon purchased
no telephone equipment, but did mail to Green a falsified invoice

purporting to show that equipment valued at $28,000 had been acquired.

Gordon also informed Green that he had invested over $7,000 of Green's
money on behalf of the Pension Plan for Green's employees, when in fact
he had deposited this money in his personal checking account.
During the week of September 24, 1979, Gordon closed down Lifelines
and his other insurance businesses. This sudden decision was precipitated
by an inquiry made by Norbert Meister concerning the certificate of
deposit which Gordon had purportedly purchased for the Georgetown
University Community Health Plan.
On September 25, 1979, Gordon decided to leave town and instructed an
employee, James Meyers, a priest on leave of absence, to inform an
officer of Lifelines that the business would be closed. Meyers testified at
trial that on the same day, Gordon made withdrawals from local banks and
informed him by telephone that he was travelling under assumed names
and "was working to disguise his physical appearance."
On October 4, 1979, representatives of the New York State
Superintendent of Insurance furnished affidavits to Justice Edward
Conway of the New York Supreme Court alleging that Gordon, a licensed
insurance agent, had discharged the employees of Lifelines and of
Spectrum Planning Corp. and had made no arrangements to service his
customers.
Pending hearing and determination of a motion for injunctive relief,
Justice Conway appointed the New York Superintendent of Insurance as
temporary receiver empowered to "take and hold all real and personal
property located at 8 Stanley Circle, Latham, New York and belonging to
such defendants ... and to take whatever measures are deemed appropriate
or necessary to gain access to the premises and to the records and to
control such premises and records to protect the interests of the
policyholders which may be affected by defendants' illegal actions." On
October 12, 1979, the order was amended to authorize the seizure of
documents at Gordon's Plattsburgh office.
On October 4 and 12, 1979, employees of the Insurance Department
seized certain documents from Gordon's offices. Shortly thereafter, copies
of these documents were provided to the United States Attorney for the
Northern District of New York.
In Washington, D.C., on October 4, 1979, FBI Special Agents arrested
Gordon in a closet of the apartment of Joseph DeVito. While making the
arrest, they observed on a table in the living room of the apartment four

ticket folders labeled "British Airways" and "Concorde". The agents

examined the folders, which they found to contain four round-trip tickets
to Paris in the names of Gordon and DeVito, recorded the information
contained on the tickets, and left them in the apartment. While in the
apartment, Gordon attempted to reach his attorney by telephone, but was
unable to do so.
While taking Gordon from the apartment to the FBI Field Office, the
agents provided Gordon with an Advice of Rights form and explained to
him his constitutional rights. Gordon stated that he did not wish to make a
statement at that time.
At the Field Office, Gordon was again unsuccessful in contacting his
attorney by telephone. Shortly thereafter, after he had been photographed
and fingerprinted, Gordon was informed of the basis for his arrest. Agent
Richardson testified at the suppression hearing that at this time, Gordon
asked if he might re-read the Advice of Rights form provided to him
earlier. Richardson testified that Gordon, after re-reading the form,
expressed a desire to furnish information concerning "somebody else that
should be arrested for the same thing."
Gordon thereupon signed the waiver portion of the Advice of Rights form
and made a statement to the agents, a summary of which was prepared by
Richardson. An examination of this summary reveals the statement to be
largely exculpatory in nature. The summary provides in part:
"Gordon believes it was Meister who prompted the actions against Gordon
by going to the U.S. Attorney (USA) in Albany, New York in an attempt
to keep from being charged himself. However, documents which Gordon
knows exist, will show that Meister knew exactly what was going on in,
and personally benefited from, transactions between GUCHP and
Lifelines.
....
... (Gordon) would only say the present charges against him would never
have been brought if he had not met Norbert Meister. Gordon quickly
added that he was in no way admitting to the charges, but rather was
advising that if the FBI knew of Meister's involvement, Meister 'would
not be let out of Albany.' "
Later that afternoon, Agent Richardson returned to the apartment of
Joseph DeVito, who permitted a search during which Richardson
discovered two deposit slips in a gym bag which reflected a transfer of

$50,000 from Gordon's savings account to his checking account at the

Marine Midland Bank.
DISCUSSION
The Seizure of Records by the Superintendent of Insurance
Gordon contends that the warrantless searches of his offices of October 4
and October 12, 1979 by representatives of the Insurance Department
violated his Fourth Amendment rights and that documents seized during
the searches should have been suppressed at trial. Some of these records,
Gordon argues, were unrelated to his insurance business. We are
unpersuaded by these arguments.
The Superintendent of Insurance was appointed temporary receiver for
Lifelines and Spectrum Planning, Gordon's insurance businesses, pursuant
to Section 6401 of New York Civil Practice Law and Rules.2 Under the
circumstances confronting the Superintendent, the warrantless seizure of
the documents in question by his employees was constitutionally
permissible.
The Supreme Court has most recently addressed the question of
warrantless inspection in Donovan v. Dewey, --- U.S. ----, 101 S.Ct. 2534,
69 L.Ed.2d 262 (1981). Holding that warrantless inspections of mines
pursuant to Section 103(a) of the Federal Mine Safety and Health Act of
1977 did not violate the Fourth Amendment, the Court observed:
"Our prior cases have established that the Fourth Amendment's
prohibition against unreasonable searches applies to administrative
inspections of private commercial property. Marshall v. Barlow's, Inc.,
436 U.S. 307 (98 S.Ct. 1816, 56 L.Ed.2d 305) (1978); See v. City of
Seattle, 387 U.S. 541 (87 S.Ct. 1737, 18 L.Ed.2d 943) (1967). However,
unlike searches of private homes, which generally must be conducted
pursuant to a warrant in order to be reasonable under the Fourth
Amendment (footnote omitted), legislative schemes authorizing
warrantless administrative searches of commercial property do not
necessarily violate the Fourth Amendment. See, e. g., United States v.
Biswell, 406 U.S. 311 (92 S.Ct. 1593, 32 L.Ed.2d 87) (1972); Colonnade
Catering Corp. v. United States, 397 U.S. 72 (90 S.Ct. 774, 25 L.Ed.2d
60) (1970). The greater latitude to conduct warrantless inspections of
commercial property reflects the fact that the expectation of privacy that
the owner of commercial property enjoys in such property differs
significantly from the sanctity accorded an individual's home, and that this
privacy interest may, in certain circumstances, be adequately protected by

regulatory schemes authorizing warrantless inspections. United States v.

Biswell, supra (406 U.S.) at 316 (92 S.Ct. at 1596)." Id. --- U.S. at ----,
101 S.Ct. at 2537-38.
The Fourth Amendment, the Court noted, protects a commercial property
owner from "unreasonable intrusions onto his property by agents of the
government," Id. (emphasis in original). Under certain circumstances,
however, property may be subject to warrantless inspection when
Congress has "reasonably" determined that such inspection is necessary to
further a regulatory scheme and the "regulatory presence is sufficiently
comprehensive and defined that the owner of commercial property cannot
help but be aware that his property will be subject to periodic inspections
undertaken for specific purposes." Id.
Gordon was engaged in the insurance business, an industry subject to a
longstanding, complex and pervasive pattern of regulation by the state of
New York. In light of this "close supervision and inspection," Colonnade,
supra 397 U.S. at 77, 90 S.Ct. at 777, Gordon's expectation of privacy was
substantially reduced. Moreover, he is deemed to have consented to the
regulatory restrictions placed upon him. It is of no moment that this
regulatory scheme is of state, and not federal, origin, as in Dewey. See
Frey v. Panza, 621 F.2d 596 (3d Cir.), cert. denied, 449 U.S. 1035, 101
S.Ct. 611, 66 L.Ed.2d 497 (1980).
The Superintendent of Insurance had reason to seek the remedy of
temporary receivership under New York law and to conduct the searches
in question pursuant to his authority as a receiver. Gordon had abandoned
the premises of Lifelines and Spectrum Planning after directing an
associate to shut down their operations. The offices were locked and
telephone service had been discontinued. Indeed, there existed a
substantial likelihood that Gordon's insurance customers would suffer
financial harm if remedial action was not quickly taken. Under such
circumstances, the need for swift, unannounced inspection was
demonstrable.
In seeking an appointment as temporary receiver, the Superintendent of
Insurance acted pursuant to statutory authority. Section 24 of New York
Insurance Law provides that the Superintendent may "require the
production of any books, papers, records, correspondence, or other
documents which he deems relevant to the inquiry." See also New York
Insurance Law, Sections 35, 526, 528. After unsuccessfully attempting to
require such production through the exercise of his subpoena power, the
Superintendent made a showing before Justice Conway, pursuant to CPLR

Section 6401, that "property (would) be removed from the state, or lost, or
materially injured or destroyed." The Superintendent demonstrated
exigent circumstances. On this showing, Justice Conway appointed him as
receiver.
Gordon now challenges for the first time the sufficiency of the evidence
relied upon by Justice Conway. Having failed to raise the issue at trial, he
may not do so on appeal.

Accordingly, we find the conduct of the Superintendent of Insurance, in light of

his effort to minimize the harmful consequences of fraudulent conduct in the
insurance industry, authorized by New York statutes and constitutionally
permissible under the circumstances presented. Dewey, supra --- U.S. at ----,
101 S.Ct. at 2539-41. See also United States ex rel. Terraciano v. Montanye,
493 F.2d 682, 685 (2d Cir.), cert. denied, 419 U.S. 875, 95 S.Ct. 137, 42
L.Ed.2d 114 (1974); Matter of Carlson, 580 F.2d 1365, 1379 (10th Cir. 1978).

Gordon argues that even if the appointment of a temporary receiver was proper,
the use at trial of records seized by the Superintendent from Gordon's noninsurance businesses was impermissible, since these documents were the fruits
of an overly-broad search. This argument is without merit. Gordon's failure to
develop an adequate factual record in the district court precludes him from
challenging the breadth of the search on appeal.

We are equally unpersuaded by Gordon's contention that the Superintendent

was without authority to turn over the seized records to federal prosecutors. On
the contrary, after discovering evidence of fraudulent conduct, the
Superintendent was duty-bound to furnish the documents to appropriate law
enforcement agencies. Gordon's closing of his offices and his leaving town
made it appropriate to alert the federal authorities.

In view of the foregoing, Judge Foley properly refused to suppress the seized
documents. See Gordon I, supra, 493 F.Supp. at 813-814.

5Joinder of the Counts and consolidation of the Indictments

6

Gordon contends that the joinder of the nine counts of the first indictment,
involving four different people, was improper and that the district court should
have severed these counts to allege four separate schemes involving four
separate victims. Gordon also argues that the consolidation of the two
indictments for trial violated Rule 13 of the Federal Rules of Criminal

Procedure and was highly prejudicial to his defense. We disagree.

7

The first indictment recites eight counts of mail fraud and one count of
interstate transportation of stolen property. We agree with the district court's
conclusion that the joinder of counts in the first indictment was permissible
under Rule 8(a) of the Federal Rules of Criminal Procedure because the acts of
mailing charged in the first eight counts formed part of a "common and
continuous scheme and plan...." Gordon II, supra, 493 F.Supp. at 818. In each
of these counts, Gordon was alleged to have abused his position as a financial
advisor for the purpose of defrauding his clients.

This Court has stated that "too precise an identity between the character of the
offenses" charged in one indictment should not be required. United States v.
Werner, 620 F.2d 922, 926 (2d Cir. 1980). Here it is sufficient that Gordon
allegedly misused his particular position to accomplish his fraudulent purposes
in each of the counts charged. See also United States v. Rabbitt, 583 F.2d 1014,
1021 (8th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75
(1979). Moreover, Gordon's representations to the individuals named in the
indictment were similar in nature; in each case he promised to invest money in
certificates of deposit or other property.

Gordon also challenges the consolidation of the two indictments for trial. The
second indictment, dated March 28, 1980, charged Gordon with the making of
a materially false statement in a loan application and with the interstate
transportation of stolen property.

10

We are persuaded that the two indictments arose out of connected transactions,
and accordingly we hold that the consolidation was proper.

11

Rule 13 of the Federal Rules of Criminal Procedure provides in part: "The

Court may order two or more indictments ... to be tried together if the offenses
... could have been joined in a single indictment." In United States v. Halper,
590 F.2d 422, 428 (2d Cir. 1978), we held that a Medicaid fraud indictment and
an income tax evasion indictment were not based on the "same act or
transaction," nor did the indictments arise out of connected transactions, and
that, accordingly, consolidation was improper. Here, unlike Halper, there is a
clear connection between the acts charged in the two indictments. Our
examination of the record satisfies us that Judge Foley was correct in finding
that "the alleged transactions upon which the charges in the second indictment
are based do intertwine and connect together with transactions in several counts
of the first so as to constitute part of a common scheme to obtain moneys by

fraud." Gordon II, supra, 493 F.Supp. at 821. We agree that the considerations
favoring consolidation outweighed the prejudice to the defendant. See United
States v. Barrett, 505 F.2d 1091, 1105 (7th Cir. 1974), cert. denied, 421 U.S.
964, 95 S.Ct. 1951, 44 L.Ed.2d 450 (1975).
Gordon's In-custody Statement to the FBI
12

FBI Agent Richardson testified at the suppression hearing that Gordon, after
being informed of the nature of the charges on which he was arrested,
requested that he be permitted to re-read the Advice of Rights form. After doing
so, Richardson testified, Gordon expressed a desire to provide information
about "somebody else in Washington that should be arrested for the same
thing." Our review of Richardson's summary of Gordon's subsequent statement,
made after he signed the waiver, reveals the statement to be exculpatory in
nature and designed, it would appear, to procure the arrest of Norbert Meister,
one of the individuals named in the indictment as an individual defrauded by
Gordon.

13

Gordon contends that the district court erred in admitting in evidence this
statement, see Gordon I, supra, 493 F.Supp. at 812-813, since only shortly
before making the statement he had declined to waive his Miranda rights and
had attempted to reach his attorney by telephone. Since he invoked his
constitutional rights, Gordon argues, all his subsequent statements were made
against his will and were therefore inadmissible in evidence.

14

In Edwards v. Arizona, --- U.S. ----, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the
Supreme Court held that an accused, having invoked his right to counsel, "is
not subject to further interrogation by authorities until counsel has been made
available to him, unless the accused himself initiates further communication,
exchanges or conversation with the police." Id. at ----, 101 S.Ct. at 1885. We
are satisfied that Gordon initiated such communication and that the " 'particular
facts and circumstances surrounding (the) case, including the background,
experience and conduct of the accused' ", id. at ----, 101 S.Ct. at 1884, quoting
Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938), support the district court's finding that Gordon voluntarily signed the
waiver after he re-read it at his own request. Moreover, Gordon's waiver
appears to constitute in all respects "a knowing and intelligent relinquishment
or abandonment of a known right or privilege." Id. Gordon's cautious behavior
before volunteering his statement, when considered in light of the content of the
statement itself, persuades us that this decision to proceed without counsel was
carefully considered, notwithstanding his previous efforts to reach his attorney
by telephone. See also Rhode Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct.

1682, 1688-1689, 64 L.Ed.2d 297 (1980); Fare v. Michael C., 442 U.S. 707,
724-726, 99 S.Ct. 2560, 2571-2572, 61 L.Ed.2d 197 (1979); Michigan v.
Mosley, 423 U.S. 96, 108-109, 96 S.Ct. 321, 328-329, 46 L.Ed.2d 313 (1975)
(White, J., concurring).
15

Gordon's statement was properly received in evidence at trial.

Remaining Contentions on Appeal

16

Gordon argues that the district court should not have admitted the testimony of
his employee James Meyers, a priest employed while on leave of absence from
his church. See Gordon III, supra, 493 F.Supp. at 822. Gordon contends that
Meyers' testimony was based on conversations protected by the priest-penitent
privilege. We find this argument wholly without merit. The district court
correctly concluded that the conversations between Gordon and Meyers related
to business relationships, not spiritual matters, and that Meyers was enlisted by
Gordon to procure the business of Norbert Meister. Gordon III, supra, 493
F.Supp. at 823-824; see Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct.
906, 912-913, 63 L.Ed.2d 186 (1980); United States v. Wells, 446 F.2d 2, 4 (2d
Cir. 1971).

17

Gordon also contends that airline tickets discovered and inspected by FBI
agents during his arrest in the apartment of Joseph DeVito in Washington, D.C.
were found as a result of an unlawful search and seizure violating the Fourth
Amendment. The district court properly declined to suppress this evidence after
finding that the agents acted reasonably in moving Gordon to the living room of
the apartment in which he was arrested, where they discovered, in plain view,
"conspicuous and brightly colored" ticket envelopes. Gordon I, supra, 493
F.Supp. at 811. See Coolidge v. New Hampshire, 403 U.S. 443, 465-66, 91
S.Ct. 2022, 2037-38, 29 L.Ed.2d 564 (1971); United States v. Rollins, 522 F.2d
160, 166 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47 L.Ed.2d
324 (1976). Under the circumstances here presented, we believe that the agents
were fully justified in inspecting the tickets, especially in light of Gordon's
recent flight.

18

We are equally unpersuaded by Gordon's contention that the Government

began its investigation of his accounts at the Marine Midland Bank only after
conducting an illegal search of DeVito's apartment, which revealed, inside a
gym bag, two deposit slips indicating a transfer of $50,000 from Gordon's
savings account to his checking account. At trial, Agent Hilborn testified that
there existed an independent source of information which justified an
investigation at the Marine Midland Bank. See United States v. Friedland, 441

F.2d 855 (2d Cir. 1971), cert. denied, 404 U.S. 867, 92 S.Ct. 143, 30 L.Ed.2d
111 (1972); United States v. Nardone, 127 F.2d 521, 523 (2d Cir.), cert. denied,
316 U.S. 698, 62 S.Ct. 1296, 86 L.Ed. 1767 (1942). Judge Foley acted within
his discretion in relying upon Hilborn's testimony and in finding the existence
of an independent source of information.
19

Gordon's remaining contentions are without merit.

20

The judgment of conviction is affirmed.

OAKES, Circuit Judge (concurring):

21

I concur.

22

I do not believe that the so-called administrative exception cases, like Donovan
v. Dewey, --- U.S. ----, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981), lead us to any
clearcut answer in the case at bar, for they have turned on a weighing of the
legislative interest involved in the regulatory scheme permitting inspection and
the reasonable expectation of the commercial property owner as to the
likelihood that periodic inspection will be conducted and the specificity of the
purposes for which the inspection is made. Under certain circumstances, it
seems, property may be subject to warrantless inspection when Congress has
"reasonably" determined that such inspection is necessary to further a
regulatory scheme and the "regulatory presence is sufficiently comprehensive
and defined that the owner of commercial property cannot help but be aware
that his property will be subject to periodic inspections undertaken for specific
purposes." Donovan v. Dewey, at ----, 101 S.Ct. at 2539. Marshall v. Barlow's,
Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978), in which the Court
held warrantless OSHA inspections unconstitutional, was specifically
distinguished in Dewey, at ----, 101 S.Ct. at 2539, on the basis that the
Occupational Safety and Health Act "fail(ed) to tailor the scope and frequency
of such administrative inspections to the particular health and safety concerns
posed by the numerous and varied businesses regulated by the statute." But our
case does not involve a periodic inspection. Neither Marshall nor Dewey,
therefore, furnishes us with a specific guideline.

23

What is important here, however, and what I think tips the scales in favor of the
reasonableness of the seizure and subsequent search of Gordon's records was
the emergency nature of the situation, an emergency in a sense comparable to
that involved in such Fifth Amendment cases as United States v. Caltex, Inc.,
344 U.S. 149, 73 S.Ct. 200, 97 L.Ed. 157 (1952), or Urciolo v. Washington,

305 A.2d 252 (App.D.C.1973). The Superintendent of Insurance had reason to

seek the remedy of temporary receivership under New York law and to conduct
the searches in question pursuant to his authority as a receiver. Gordon had left
if not abandoned the premises of Lifelines and Spectrum Planning after
directing an associate to shut down their operations, which the associate had
done. There did indeed exist "a substantial likelihood that Gordon's insurance
customers would suffer financial harm," by way of expiration of policies or
otherwise, if remedial action were not quickly taken. Under such
circumstances, the need for swift, unannounced inspection was demonstrable.
24

While I cannot agree that Gordon is challenging on appeal for the first time the
evidence before Justice Conway of the New York Supreme Court, I do agree
that in seeking an appointment as temporary receiver, the Superintendent of
Insurance acted pursuant to established statutory authority, N.Y.Ins. Law 24,
35, 526, 528 (McKinney), and with procedural regularity. The Superintendent's
showing, pursuant to Section 6401 of the New York Civil Practice Law and
Rules, that "property (would) be removed from the state, or lost, materially
injured or destroyed," demonstrated exigent circumstances. His appointment as
receiver entitled, indeed required, him to take possession of the records of the
insurance business for which he was receiver, id., and he became an officer of
the court.

25

Accordingly, I agree that the conduct of the Superintendent of Insurance, was

constitutionally permissible under the circumstances presented. As I see it, he
was, when acting by virtue of his receivership powers, in effect acting as with a
warrant issued upon a showing of probable cause.

Of the United States District Court for the Southern District of New York,
Sitting by designation

The jury found Gordon not guilty of defrauding a fourth individual named in
Count 3 of the indictment, Norbert Meister, the former vice-president of the
Georgetown University Community Health Plan. The jury found Gordon guilty
of transporting in interstate commerce a check for $100,000, which he knew to
be stolen, given to him by Meister on March 23, 1979 (Count 9)

Section 6401 provides:

"Appointment and powers of temporary receiver
(a) Appointment of temporary receiver; joinder of moving party. Upon motion

of a person having an apparent interest in property which is the subject of an

action in the supreme or a county court, a temporary receiver of the property
may be appointed, before or after service of summons and at any time prior to
judgment, or during the pendency of an appeal, where there is danger that the
property will be removed from the state, or lost, materially injured or destroyed.
A motion made by a person not already a party to the action constitutes an
appearance in the action and the person shall be joined as a party.
(b) Powers of temporary receiver. The court appointing a receiver may
authorize him to take and hold real and personal property, and sue for, collect
and sell debts or claims, upon such conditions and for such purposes as the
court shall direct. A receiver shall have no power to employ counsel unless
expressly so authorized by order of the court. Upon motion of the receiver or a
party, powers granted to a temporary receiver may be extended or limited or the
receivership may be extended to another action involving the property.
(c) Duration of temporary receivership. A temporary receivership shall not
continue after final judgment unless otherwise directed by the court."