Appeal from the United States District Court for the Southern District of New York.
Present: HONORABLE WILFRED FEINBERG, HONORABLE WALTER R. MANSFIELD, Circuit Judges, HONORABLE CHARLES S. HAIGHT, JR., District Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is AFFIRMED.
This is an appeal from a judgment of conviction for one count of obstruction of justice, in violation of 18 U.S.C. § 1503, following a 7-day jury trial before Judge Gagliardi in the United States District Court for the Southern District of New York. The trial also involved multiple counts of mail and wire fraud for a used car odometer rollback scheme, in which appellant's brother and brother-in-law, among others, who were co-defendants, were the principals. Appellant was charged only with obstruction of justice. Appellant was given a suspended sentence and placed on probation for one year. The basis of the obstruction of justice count, with which appellant was charged, was his failure, as an officer of the used car dealership, to produce documents subpoenaed by a grand jury.
Appellant first challenges the sufficiency of the evidence to sustain a guilty verdict. He claims that the government did not prove that the records not produced were in existence when subpoenaed. However, there was ample circumstantial evidence to prove that fact. Bookkeepers testified to how such records were made, the manner in which they were maintained and for how long, which strongly pointed toward the records' existence when subpoenaed. There was also evidence that appellant was actively engaged in the business, was its Comptroller and Office Manager, participated in the making of the kind of records subpoenaed, and, given the involvement of his relatives in the fraudulent scheme, had a motive to protect them as well as himself in failing to produce the records.
Appellant also claims that he was prejudiced by the trial judge's failure to sever his trial from that of the other participants. However, since evidence of the entire odometer rollback scheme would have been admissible on the issue of appellant's motive to obstruct justice, at a separate trial, there was no abuse of discretion in denying the motion to sever. For the same reason, there was no error with regard to the instructions to the jury.
Therefore, we affirm the judgment of conviction.