Professional Documents
Culture Documents
United States v. Richard J. Gordon, 655 F.2d 478, 2d Cir. (1981)
United States v. Richard J. Gordon, 655 F.2d 478, 2d Cir. (1981)
2d 478
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.
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.
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.
In view of the foregoing, Judge Foley properly refused to suppress the seized
documents. See Gordon I, supra, 493 F.Supp. at 813-814.
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
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
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 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
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
20
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,
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
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)