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United States v. Gordon

decided: July 28, 1981.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
RICHARD J. GORDON, DEFENDANT-APPELLANT .



Appeal from a judgment entered in the United States District Court for the Northern District of New York, James T. Foley, Judge, convicting appellant of mail fraud, the interstate transportation of stolen property and the making of a false statement to a bank. Affirmed.

Before Feinberg, Chief Judge, Oakes, Circuit Judge and Bonsal,*fn* District Judge and Bonsal,*fn* .

Author: Bonsal

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,*fn1 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 ...


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