United States v. Ofchinick

883 F.2d 1172, 1989 U.S. App. LEXIS 12535
CourtCourt of Appeals for the Third Circuit
DecidedAugust 24, 1989
DocketNos. 88-3385, 88-3389, 88-3393, 88-3394 and 88-3395
StatusPublished
Cited by34 cases

This text of 883 F.2d 1172 (United States v. Ofchinick) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ofchinick, 883 F.2d 1172, 1989 U.S. App. LEXIS 12535 (3d Cir. 1989).

Opinion

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from judgment of conviction against six individual and two corporate defendants on counts of mail fraud, interstate transportation of fraudulently obtained securities, conspiracy, and racketeering. We find that the attacks on the convictions themselves and on the restitution portion of the sentence are lacking in merit. The forfeiture portion of the sentence of one of the defendants, however, entered pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), presents significant problems, and this opinion will be limited to a discussion thereof. Because several aspects of the forfeiture judgment are not supported by substantial evidence, we will vacate a significant portion of the forfeiture judgment and remand with instructions.

I. FACTS AND PROCEDURAL HISTORY

Mack Trucks, Inc. (“Mack”) manufactures heavy duty trucks and sells them through independently owned distributors. The distributors sell both new Mack trucks and the used trucks that they take in trade from purchasers of new Mack trucks. In order to facilitate the sale of new Mack trucks, Mack’s wholly owned subsidiary, Mack Financial Corporation (“MFC”), provides financing both to purchasers of new Mack trucks and to purchasers of used trucks obtained by a distributor through a trade-in. MFC makes a loan to a purchaser only if the purchaser makes a substantial down payment on the truck purchased and only if the truck serves as loan collateral.

As established by the jury’s verdict, which was supported by the evidence, the fraud for which the defendants were convicted involved a scheme by which they induced MFC to extend approximately $7 million in credit to finance the purchase of over 150 used trucks that were neither new Mack trucks nor trucks obtained through a trade-in on the sale of a new Mack. Additional elements of the fraudulent scheme included inadequate down payments, misrepresentation of the financial background of those purchasing the trucks, and misrepresentation of the value of the trucks serving as collateral for the loans such that the truck loans, in many cases, were in amounts that exceeded the value of the collateral. Much of the money that MFC had extended on credit was pocketed by the defendants. Many of the nominal borrowers on the loans, who were either fictional persons or truck drivers whom several of the defendants had induced to sign loan applications, soon defaulted on the loans. MFC was left with substantial losses when it was forced to repossess the fraudulently overvalued trucks from whose owners it could not collect the loan balances.

At the hub of the conspiracy was Nor-sub, Inc. (“Norsub”), a Pennsylvania corporation engaged in the trucking business. The kingpins of the scheme were Daniel R. Ofchinick, Sr., Norsub’s sole shareholder, and his son, Daniel R. Ofchinick, Jr., who [1175]*1175managed Norsub’s daily operations. Ofch-inick, Jr. purchased the used trucks, many of which were in poor condition, during the period January 1982 through March 1983. The Ofchinicks then sold the trucks (or in some cases effected a nominal transfer of title) to Norsub truck drivers or to fictional persons. Robert DeLucia, then engaged to Ofchinick, Sr.’s granddaughter, participated in the scheme by taking title to a number of the trucks and by helping to persuade truck drivers to purchase the trucks, thereby providing the means of setting up the loans from which the defendants benefited.

Because Norsub was not a Mack distributor, the Ofchinicks enlisted Somerset Mack Sales and Service, Inc. (“Somerset Mack”), a Mack distributor, to obtain MFC financing on the trucks. Lewis P. Richardson, the Vice President of Somerset Mack, signed 59 blank MFC contracts for the sale of 153 vehicles. Ofchinick, Jr. completed the MFC credit applications to obtain loans on the trucks. In order to evade MFC limitations on the amount of credit that could be extended to any one person, the Ofchinicks did not list themselves or Nor-sub as the purchaser of the truck; instead, in many cases, the credit applications stated that the borrower was a Norsub truck driver or fictional person. Somerset Mack (and another Mack distributor, West Virginia/Ohio Motor Sales, Inc., which arranged financing for seven of the trucks) received the money from MFC, took out fees and dealer reserve, and paid over the balance to Norsub. Norsub cashed the checks and distributed most of the money to the Ofchinicks personally. Thomas S. Stromoski, an MFC district manager, and Thomas J. Nolfi, an MFC field manager, both of whom knew of the fraudulent scheme, processed the fraudulent credit applications at MFC and ensured that the loans were extended.

On August 17, 1987, a grand jury returned a 59-count indictment against the two Ofchinicks, DeLucia, Richardson, Stro-moski, Nolfi, Norsub, and Somerset Mack. Each of the defendants was named in the first 58 counts. Counts 1 through 44 charged that each of the defendants had used the mails in executing a scheme to defraud MFC in violation of 18 U.S.C. § 1341 (1982). Counts 45 through 57 charged that each of the defendants had caused securities, known to be obtained by fraud, to be transported in interstate commerce in violation of 18 U.S.C. § 2314 (1982). Count 58 charged that each of the defendants had conspired to violate those two statutes.

Count 59 charged Ofchinick, Sr., Ofchin-ick, Jr., and Norsub with violating section 1962(a) of the RICO statute, 18 U.S.C. § 1962(a) (1982). Section 1962(a) states that

[i]t shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity ... to ... invest ... any part of such income, or the proceeds of such income, in ... any enterprise ... engaged in ... interstate ... commerce.

18 U.S.C. § 1962(a) (1982). One element of section 1962(a) that the government must prove beyond a reasonable doubt is the existence of an enterprise. An enterprise is defined as including “any ... group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4) (1982). The indictment alleged that the following two individuals and four corporations constituted an association-in-fact enterprise: Ofchinick, Sr.; Ofchinick, Jr.; Norsub; Norberry, Inc., a real estate company the two officers of which were daughters of Ofchinick, Sr.; Noria, Inc., another real estate company with the same officers; and the Pittsburgh Revival Center, a church of which Ofchinick, Sr. is the deacon. The four entities were jointly managed by Ofchinick, Sr. and Ofchinick, Jr., and each received money generated by the scheme to defraud MFC.

The district court dismissed Counts 37 and 38 of the indictment. The defendants were tried by a jury on the remaining counts. All of the defendants were found guilty as charged on all counts submitted to the jury. The district court sentenced each of the individual defendants, except Nolfi, to a term of imprisonment. Each of the Ofchinicks was ordered to pay restitu[1176]

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Cite This Page — Counsel Stack

Bluebook (online)
883 F.2d 1172, 1989 U.S. App. LEXIS 12535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ofchinick-ca3-1989.