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United States v. Chorney, 96-1187 (1996)

Court: Court of Appeals for the First Circuit Number: 96-1187 Visitors: 25
Filed: Oct. 29, 1996
Latest Update: Mar. 02, 2020
Summary: and Boudin, Circuit Judge.federally insured bank in violation of 18 U.S.C. 1014.United States v. Chorney, 63 F.3d 78, 80 (1st Cir.trial based on newly discovered evidence, Fed.33, and supplemented the motion with claims of Brady and Fed.Chorney owned Mayflower and employed Tebbetts.coins at issue.
USCA1 Opinion




[NOT FOR PUBLICATION]




UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________

No. 96-1187

UNITED STATES OF AMERICA,

Appellee,

v.

HAROLD F. CHORNEY,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Raymond J. Pettine, Senior U.S. District Judge] __________________________

____________________

Before

Torruella, Chief Judge, ___________

Campbell, Senior Circuit Judge, ____________________

and Boudin, Circuit Judge. _____________

____________________

Scott A. Lutes for appellant. ______________
Seymour Posner, First Assistant United States Attorney, with whom ______________
Sheldon Whitehouse, United States Attorney, was on brief for the ___________________
United States.


____________________

OCTOBER 29, 1996
____________________





















Per Curiam. On May 27, 1993, a jury in the federal __________

district court in Rhode Island found Harold Chorney guilty of

seven counts of making a false report and statement to a

federally insured bank in violation of 18 U.S.C. 1014.

United States v. Chorney, 63 F.3d 78, 80 (1st Cir. 1995). At _____________ _______

trial, the gravamen of the case against Chorney was that he

"engineered a false appraisal" in order to convince the bank

that the rare coins he offered as collateral were worth

vastly more than their actual value, thus enabling him to

obtain a series of loans, extensions and renewals that

totaled $2.5 million by May 1989. Chorney, 63 F.3d at 79-80. _______

On direct review, this court affirmed Chorney's

conviction and sentence. Chorney, 63 F.3d at 81, 83. While _______

the appeal was pending, Chorney filed a motion for a new

trial based on newly discovered evidence, Fed. R. Crim. P.

33, and supplemented the motion with claims of Brady and Fed. _____

R. Crim. P. 16 violations. The district court denied that

motion on January 22, 1996, and Chorney now appeals from the

denial.

At trial, critical testimony against Chorney was

provided by William Tebbetts, who appraised the coins in

question in 1985, and Ann Fiumefreddo, Chorney's secretary.

Tebbetts testified that Chorney gave him the money necessary

to purchase the business, renamed Mayflower Coin and Stamp

Company, that ultimately appraised the coins. Tebbetts



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examined hundreds of the coins pledged as collateral by

Chorney to Eastland Bank, and graded all of them between MS-

62 and MS-64. However, at Chorney's request, Tebbetts agreed

two months later to sign an appraisal letter written on

Mayflower letterhead which stated that all of the coins were

of substantially higher MS-65 "gem" quality.

Tebbetts testified that he signed the appraisal letter

to avoid losing his job. The letter did not reveal that

Chorney owned Mayflower and employed Tebbetts. Fiumefreddo,

who typed the letter at Chorney's direction, testified that

she asked Chorney whether it was appropriate to have one

company that he owned appraise another company that he owned.

Chorney responded, "You're better off not knowing or don't

ask questions; something to that effect." Chorney, 63 F.3d _______

at 79-80.

In his new trial motion, Chorney contended that the

original "collateral" coins were either removed and replaced

with coins of lesser value or mishandled and damaged, causing

them to lose value. To support his theories of switching or

mishandling, Chorney pointed to videotapes, still photographs

and a stenographic transcript of the August 1990 removal of

his company's assets by order of a bankruptcy trustee. He

also relied upon alleged discrepancies between different

inventories of the collateral coins which were held by the

bank.



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Chorney's position is that all of this evidence

constitutes newly discovered evidence. In addition, he

contends that the failure to provide the videotapes and

related records of the August 1990 coin transfer to the

defense involved violation by the government of its

disclosure duties under Brady v. Maryland, 373 U.S. 83, 87 _____ ________

(1963) and Fed. R. Crim. P. 16(a)(1)(C). The government

responds that it offered videotapes to Chorney's lawyer, who

chose not to view them.

In any case, the recorded August 1990 removal of

Chorney's business assets involved none of the collateral

coins at issue. The connection is simply Chorney's claim

that any government carelessness evident from the videotapes

and other evidence would suggest that the government's

movement of 953 collateral coins among bank branches on a

separate occasion (for valuation purposes in connection with

Chorney's bankruptcy case) probably involved similar

carelessness and damage to the coins.

As for the inventory discrepancies--which do involve the

inventory coins--the inference is also extremely thin.

Although Chorney claims that there were 141 discrepancies

between two different inventories (one by the FBI and one by

Sotheby's), it appears that this greatly overstates the

number. But in any case even differences as to 141 coins

would represent less than two percent of the 7820 coins



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offered as collateral for the bank loan and appraised as MS-

65 for significantly more than their actual value.

Chorney's Brady and Rule 16 claims, and his motion for a _____

new trial based on newly discovered evidence, all fail unless

Chorney shows that the evidence to which he points would

likely produce a different result on retrial. United States _____________

v. Watson, 76 F.3d 4, 7 (1st Cir. 1996) (Brady); United ______ _____ ______

States v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, ______ ______ ____________

467 U.S. 1218 (1984) (Rule 16); United States v. Tibolt, 72 _____________ ______

F.3d 965, 971 (1st Cir. 1995) (new trial motion), cert. _____

denied), 116 S. Ct. 2554 (1996). Even if we considered the ______

issue of prejudice de novo (the standard of review is complex _______

and not worth pursuing here), Chorney's showing of prejudice

is patently inadequate.

As our brief (and understated) description of the trial

evidence shows, the government had a powerful case against

Chorney. By contrast, nothing in the evidence now adduced

suggests that there was any massive switch of collateral

coins or that they were damaged en masse during the course of ________

some relocation. The likelihood that this new evidence would

have altered the outcome of the trial approaches zero.

Affirmed. _________









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Source:  CourtListener

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