Appeal from conviction of attorney for filing false income tax return, 26 U.S.C. § 7206(1), after jury trial in the United States District Court for the Northern District of New York, Lloyd F. MacMahon, J. No abuse of discretion in admission of writing exemplars to prove lack of authorship, and no error in other alleged trial defects. Condition of probation that defendant resign from bar held improper and case remanded for resentencing.
Lumbard, Feinberg and Timbers, Circuit Judges. Lumbard, Circuit Judge
Vito M. Pastore appeals from a judgment of conviction, after a trial before a jury and Judge Lloyd F. MacMahon*fn1 in the United States District Court for the Northern District of New York, of wilfully and knowingly filing a false income tax return. 26 U.S.C. § 7206(1). Appellant offers a number of reasons why his conviction should be set aside and also argues that one of the conditions of his sentence was improper. We reject the attack on the conviction but find merit in the complaint regarding the sentence.
Since appellant does not argue that the evidence was insufficient, our statement of facts may be brief. From the evidence before it, the jury could properly have found the following facts. Pastore, an attorney, represented the Town of Fleming, New York, in 1970-71, in connection with the installation of a sewer system. Appellant contacted Frank Cedrone, a pipeline contractor, to interest him in the job, telling him that the low bid initially received was about $2 million and inquiring whether the job could be done for under $1 1/2 million. Cedrone in turn brought in Kenneth Marshall, a land developer, who ultimately placed a successful bid of between $1.4 and $1.5 million. Shortly thereafter, the name of Marshall's business was changed to Ron-Ore Soil Systems, and the business was later incorporated under the name of Ron-Ore Soil Systems, Ltd. ("Ron-Ore"). At first, Cedrone was project manager for Ron-Ore on the Fleming sewer project; later, he became president of Ron-Ore. The first three letters of the corporate name represented Cedrone; the last three, Pastore. Apparently, Ron-Ore was used as a conduit for payments to Pastore from the sewer project.
The Government's theory was that in 1971 the proceeds of a number of checks, drawn upon Ron-Ore or purchased by it,*fn2 went to appellant. Seven of the checks were payable to "Nick Galloni" or to cash, and were endorsed "Nick Galloni." At trial, Galoni, a Ron-Ore employee whose name is properly spelled with only one "l," denied endorsing the checks or receiving the proceeds. Of the remaining checks, all but one were payable to apparently fictitious payees, and the last was payable to a person who testified that he had no knowledge of the check.*fn3 Many of these checks were signed for Ron-Ore in the name of George Sedrick, who was a fictitious person. The evidence also showed that a check for $4,062, drawn upon the Ron-Ore account, was used by appellant to pay for a Cadillac in 1971. The Government contended that all of these sums represented payment to appellant for services to Ron-Ore and should have been, but were not, included in appellant's income tax return for 1971. By its verdict, the jury accepted the Government's theory.
The judge sentenced appellant, under 18 U.S.C. § 3651, to two years' imprisonment, six months of which were to be served in a jail-type institution. The judge suspended execution of the remaining 18 months of the sentence and placed Pastore on probation for that period with the special condition that he "resign from the Bar." On appeal, Pastore attacks this special condition of the sentence.
We consider first the various arguments addressed to the judgment of conviction. The most troublesome of these concerns the Government's use of handwriting exemplars by Cedrone and Galoni, who were prosecution witnesses.*fn4 During the trial, at the request of the prosecution and outside the presence of the court, the jury and defense counsel, Cedrone and Galoni provided various specimens of their handwriting for examination by the Government's expert. Nick Galoni wrote his name ten times spelled correctly with one "l" and another ten times with two "l's," as it appeared on the crucial checks. Cedrone provided 12 specimens of handwriting, six in his own name, two in the name of "Irv Furletti," two in the name of Galoni with one "l " and two with two "l's." The expert testified that he had compared Galoni's and Cedrone's exemplars with the handwritten endorsements "Nick Galloni" on the reverse side of four of the disputed checks; Cedrone's exemplars were also compared with the endorsement on a check payable to "Irv Furletti." Based upon his examination, the expert gave his opinion that the exemplars and the check endorsements were not made by the same person. This testimony, to which objection was made, helped to negate an inference that either Galoni or Cedrone had endorsed the checks and kept the proceeds themselves, as defense counsel argued to the jury.
Appellant argues that use of the exemplars was improper under United States v. Lam Muk Chiu, 522 F.2d 330 (2d Cir. 1975). In that case, the Government had introduced into evidence ten letters addressed to a confidential informant and bearing a signature in the name of defendant. On the theory that the letters were authenticated by content, they were received without any direct proof of authentication by the testimony of a handwriting expert. As part of his defense at trial, Lam Muk Chiu proffered three samples of his handwriting, which he had prepared after his arraignment at the direction of his attorney for use at trial. Defendant intended to show that his handwriting was not the same as the handwriting in the ten letters relied on by the Government. The district court found these handwriting samples "objectionable as self-serving exemplars prepared specially for trial," 522 F.2d at 331, and excluded them. We affirmed, noting that:
Unquestionably, a defendant has a strong motive to alter his writing so as to render it dissimilar to an incriminating document alleged by the prosecution to be in his hand. Accordingly, any handwriting sample prepared for the specific purpose of showing dissimilarity of handwriting is inherently suspect and should not be admitted into evidence.
Despite this strong and broad language, we do not believe that our prior decision requires reversal here. Lam Muk Chiu did not adopt a rigid rule excluding all exemplars prepared to show the dissimilarity of the writer's own handwriting to that in another document. The decision there affirmed the ruling of a trial judge in excluding such exemplars. Such a holding does not foreclose a trial judge's discretion to admit similar exemplars into evidence, if the judge believes there are sufficient indicia of reliability. Indeed, the opinion in Lam Muk Chiu emphasized such indicia in distinguishing a case relied on by appellant there. Id. at 332. See III Wigmore, Evidence § 697 (Chadbourn rev. 1970) ("the matter should be left to the trial court's discretion"). It is also significant that Lam Muk Chiu was a defendant with a powerful reason to distort the specimens of his handwriting and cast doubt on damaging evidence against him. In contrast, Cedrone and Galoni were witnesses and not on trial themselves. It is true that at least Cedrone - and possibly Galoni - had a motive to falsify*fn5 but, arguably, not as strong as a defendant's. Furthermore, defense counsel cross-examined Galoni concerning the circumstances in which he had made the exemplars, and had an opportunity to ...