United States v. Triumph Capital Group, Inc.

237 F. App'x 625
Court of Appeals for the Second Circuit·Decided May 25, 2007·No. No. 05-2630-cr·Published·Cited by 5 cases

Opinion

SUMMARY ORDER

Defendant-Appellant Ben F. Andrews (“Andrews” or “Defendant”) appeals from a judgment of conviction entered on June 9, 2005, in the United States District Court for the District of Connecticut (Burns, /.). Following a jury trial, Andrews was convicted of nine counts, including bribery, fraud, money-laundering, and false-statement charges, for his role in former Treasurer of the State of Connecticut Paul Silvester’s investment of state pension funds with an investment firm named Landmark. On appeal Andrews argues that there was insufficient evidence to support the corruption and false statement charges; that a new trial is warranted because the district court abused its discretion in various evidentiary rulings; that the district court erred in not requiring the Government to grant immunity to two witnesses who had invoked their Fifth Amendment privilege against self-incrimination; and that the district court violated Andrews’ Sixth Amendment right to counsel when it placed restrictions on communication between him and his counsel. We consider Andrews’ Sixth Amendment claim in the opinion accompanying this summary order and address his remaining claims below. We assume the parties’ familiarity with the facts, the procedural history, and the specific issues on appeal.

Andrews first argues that there was insufficient evidence to establish that Andrews knew that Silvester based his decisions to invest in Landmark on improper motives. In assessing a challenge to the sufficiency of the evidence underlying a conviction, we review the trial evidence in the light most favorable to the government and draw all permissible inferences in the government’s favor. United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003). The jury was entitled to credit the testimony that Andrews knew and intended that some of his “finder’s fee” would be kicked back to Silvester and that neither Andrews nor Christopher Sack did any meaningful work on the Landmark deal. On the basis of this evidence, a rational jury could infer that it was beyond a reasonable doubt that Andrews must have understood that Silvester was motivated to do the Landmark deal in part to effectuate an illicit enrichment of himself and his friends. See United States v. Payton, 159 F.3d 49, 56 (2d Cir.1998) (“The ultimate question is not whether we believe the evidence adduced at trial established defendant’s guilt beyond a reasonable doubt, but whether any rational trier of fact could so find.”).

Andrews also argues that there was not sufficient evidence to support his conviction for making a false statement to federal agents in violation of 18 U.S.C. § 1001, because of ambiguity in the indictment and in the questioning during which the allegedly false statement was made. This Court has recognized that whether a defendant has “knowingly and willfully ... ma[de] any materially false, fictitious or fraudulent statements or representations” under § 1001 is governed by the same legal standards as whether a defendant “willfully subscribes as true any material matter which he does not believe to be true” in violation of the perjury statute, 18 U.S.C. § 1621. See United States v. Mandanici, 729 F.2d 914, 921 (2d Cir.1984) (citing Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973)). Generally the meaning and truthfulness of a defendant’s statement is a question of [628]*628fact for the jury. United States v. Lighte, 782 F.2d 367, 372 (2d Cir.1986). A reviewing court can override a properly charged jury verdict as a matter of law only if the question to which the allegedly false statement was in answer “is so vague as to be ‘fundamentally ambiguous.’ ” Id. at 375; see also United States v. Markiewicz, 978 F.2d 786, 808-09 (2d Cir.1992). A question is fundamentally ambiguous when, taking the context of the line of questioning as a whole into account, it “ ‘is not a phrase with a meaning about which men of ordinary intellect could agree, nor one which could be used with mutual understanding by a questioner and answerer unless it were defined at the time it were sought and offered into testimony.’ ” Lighte, 782 F.2d at 375 (quoting United States v. Lattimore, 127 F.Supp. 405, 410 (D.D.C.1955), aff'd by an equally divided court, 232 F.2d 334 (D.C.Cir.)).

Count 12 of the indictment charged the Defendant with making a false statement when he told an FBI agent, that he “had contacted Christopher Stack to become involved in an investment deal by the State of Connecticut with Fund A because he felt that Stack would be helpful in finalizing the deal with the Treasurer, but that he (ANDREWS) had not discussed this arrangement with Stack in front of Paul J. Silvester____” (emphasis added). Similarly, Special Agent Joseph McTague, one of the FBI agents who questioned Andrews, testified that he had asked Andrews whether he had “discussed this fee splitting arrangement with Mr. Silvester,” and that Andrews told the agents that he and Silvester “had discussed the Landmark deal but not [Andrews and Sack’s] fee splitting arrangement.” Andrews admits that if “this arrangement” means the fact that Andrews would split his fee with Stack, then Andrews’ answer was untruthful. But Andrews claims that the term “arrangement” is ambiguous and that he believed when he was speaking to the agents that “this arrangement” meant “the arrangements by which Rogers & Wells received consulting payments from Landmark, which it distributed to Mr. Andrews and KCATS.”

There is no fundamental ambiguity that would justify overturning the conviction. It is apparent from the context of both the indictment and Agent McTague’s testimony that “this arrangement” referred, without any significant ambiguity, to the existence of the fee-splitting agreement. See United States v. Carey, 152 F.Supp.2d 415, 428-29 (S.D.N.Y.2001) (distinguishing fundamentally ambiguous phrases which “virtually require an explicit definition” from “the meanings of pronouns such as ‘this,’ ‘that,’ ‘those,’ etc.,” which “can generally be elucidated by implication from the surrounding text”). It is significant that the Defendant cannot discuss the interpretation he favors without adding an “s” onto the word “arrangement.” Ordinary speakers would generally distinguish between “the fee splitting arrangement” itself and the “arrangements ” made to carry out the fee splitting.

Moreover, Andrews’ explanation, as testified to by Special Agent McTague, for why he did not tell Silvester about the fee splitting arrangement is far more logical if Andrews understood “arrangement” in the broader sense. And this too provides substantial evidence that Andrews did knowingly make a false statement. See Lighte,

Free access — add to your briefcase to read the full text and ask questions with AI

United States v. Triumph Capital Group, Inc., 237 F. App'x 625 (2d Cir. 2007).

237 F. App'x 625 (United States v. Triumph Capital Group, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. David Gates
2020 VT 21 (Supreme Court of Vermont, 2020)
Brevard v. Schunk
N.D. New York, 2020
Yan Zhao v. United States
273 F. Supp. 3d 372 (W.D. New York, 2017)
State v. Collymore
148 A.3d 1059 (Connecticut Appellate Court, 2016)
Redd v. New York State Division of Parole
923 F. Supp. 2d 393 (E.D. New York, 2013)