Friendly, Chief Judge, and Mansfield and Timbers, Circuit Judges.
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).*fn1
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.
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:*fn2
"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, 30 L. Ed. 2d 89, 92 S. Ct. 86 (1971). With the exception of appellant Wolfson, none of the appellants challenges the sufficiency of the evidence.
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.*fn3
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.*fn4 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 ...