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March 11, 1983


The opinion of the court was delivered by: BRODERICK




 Petitioner Joseph Prushinowski moves to vacate, under 28 U.S.C. § 2255, his conviction, upon guilty plea, for mail fraud (18 U.S.C. § 1341) and false statements to a federally insured bank (18 U.S.C. § 1014). In his memorandum of law petitioner also urges the conditions of his confinement as a basis for relief.


 On July 17, 1981 Joseph Prushinowski pled guilty to three counts of an indictment charging mail fraud (Count 1), and false statements to Manufacturers Hanover Trust Company ("Manufacturers"), a federally insured bank (Counts 18 and 23). He was sentenced on October 27, 1981 to three years on the mail fraud count, and to one year each on the false statement counts. The sentences on the false statement counts were to run concurrently, with each other and with the sentence imposed on the mail fraud count.

 The charges to which Mr. Prushinowski pled guilty were interrelated in that the fraudulent scheme set forth in the mail fraud count (Count 1) was incorporated by reference and realleged in the false statement counts (Counts 18 and 23).

 At the time of plea petitioner admitted his guilt not only with respect to the three counts to which he pled, but also with respect to the other 20 counts of the indictment.

 The mail fraud count of the indictment (Count 1) charged, in substance, the following:

 From August, 1975, until December, 1975, in the Southern District of New York and elsewhere, Mr. Prushinowski devised a scheme to defraud and to obtain money and property from Manufacturers by means of false and fraudulent pretenses, representations and promises. The principal object of the fraudulent scheme was substantially to enrich Mr. Prushinowski at the expense of Manufacturers. To that end, on September 2, 1975, Mr. Prushinowski opened a checking account at Manufacturers in the name of DJY Trading Company. He was the sole signator. Thereafter, in the course of seeking, and for the purpose of obtaining, a line of credit in that account at Manufacturers, Mr. Prushinowski presented to Manufacturers fictitious financial statements of DJY Trading Company and of his own company, BMH Trading Corporation. On September 10, 1975, Mr. Prushinowski and DJY Trading Company were granted a $300,000 demand loan by Manufacturers which has never been repaid.

 From October 7, 1975, up to December 5, 1975, Mr. Prushinowski prepared, or caused to be prepared, at least ten checks made payable to DJY Trading Company, in the total amount of $4,316,000, knowing that the checks were worthless and that the accounts on which they were drawn did not exist. The makers' signatures on these checks were illegible and unauthorized, and insufficient funds were in the accounts underlying the checks to cover the amounts of the checks drawn. During this same period Mr. Prushinowski presented other worthless checks to Manufacturers in a total amount of approximately $3 million.

 The face amounts of the ten checks, totalling $4,316,000, were credited by Manufacturers to the account of DJY Trading Company, either as advances or as deposits. The checks were drawn on foreign and out-of-state banks so that the normal delay incident to bank collection provided Mr. Prushinowski with ample time to effectuate the fraudulent scheme. Ultimately, the checks were returned unpaid to Manufacturers for a variety of reasons, including signature of the drawer unknown, no account on file, and insufficient funds.

 During the period when Mr. Prushinowski deposited and received advances in credit for the worthless checks, he wrote checks on the DJY Trading account which were paid by Manufacturers. As a result of the deposit of the worthless checks into the Manufacturers account, and of the checks that Mr. Prushinowski wrote on that account, an overdraft in the amount of $1,248,000 was created which, as of the date of the indictment, remained.

 The purpose of the scheme was, as Mr. Prushinowski knew, to defraud Manufacturers of substantial sums of money. By the means set forth in the indictment and by other means Mr. Prushinowski enriched himself at the expense of Manufacturers, advanced the object of his fraudulent scheme, and attempted to conceal his fraud.

 For the purpose of executing and attempting to execute the fraudulent scheme, Mr. Prushinowski caused to be mailed letters and correspondence containing the worthless checks which were sent by Manufacturers by mail to out-of-state and international banks for collection, and other correspondence relating to the collection process.

 The false statement counts of the indictment (Counts 18 and 23), after incorporating those portions of Count 1 which set forth the fraudulent scheme, went on to allege, in substance, the following:

Mr. Prushinowski unlawfully, willfully and knowingly made and caused to be made false statements and reports and did willfully overvalue securities for the purpose of influencing the actions of Manufacturers upon advances, discounts, purchases and loans, in that he deposited and otherwise negotiated the following checks at Manufacturers and received funds and monies therefrom, knowing full well that they were worthless: with respect to Count 18, a check dated November 13, 1975 in the amount of $263,000 made by Y. Flohr with DJY Trading Company as payee and drawn on the Ozar Bank of Israel; with respect to Count 23, a check dated December 17, 1975 in the amount of $1,500,000 made by D. Denenberg, DJY Trading Company as payee, and drawn on the Chase Manhattan Bank of Los Angeles.

 Mr. Prushinowski's allocution was an extended one. It consisted of an initial statement by petitioner, responses by petitioner to some questions by the court, and finally the adoption by petitioner of the prosecutor's explication of his criminal activities.

 Initially Mr. Prushinowski attempted to explain his mail fraud scheme:

I open an account at Manufacturers Hanover for DJY Trading Company, which was my company. I had a deposit made into the account of checks drawn on banks outside New York and Israel when I knew that there was not money to cover these checks. I was told the deposit would be made in this time that it took the check to collect by mail but I knew that if the deposits were not made the bank will lose money because I was overdrawn in the bank.
One of these checks was a check in the name of Flohr for the sum of $263,000. Another was a check in the name of D. Denenberg for $1,500,000. The check was deposited to take care of overdraft because of another check.
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I start again. Another check was in the name of D. Denenberg for $1,500,000. The check was deposit to take care of overdraft of other checks which were returned. I had caused to be deposit these checks that were returned unpaid plus money I owe on a line of credit for the bank, the $300,000 we mentioned before. *fn1"
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[Questions by the ...

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