recognizing that where a single count of an indictment charges a defendant with multiple false statements, jury can convict provided that it unanimously agrees defendant was guilty of making at least one of the false statements charged
How later courts described this case
- recognizing that where a single count of an indictment charges a defendant with multiple false statements, jury can convict provided that it unanimously agrees defendant was guilty of making at least one of the false statements charged
- affirming despite trial judge’s refusal to charge jury that it must be unanimous about what particular false statement served as the basis for conviction for securities fraud
- making material false and misleading statements in Securities and Exchange Commission proxy statement, in violation of 15 U.S.C. § 78ff (a)
- court relied on "the general principle" of Yates and found that general verdict was ambiguous and therefore reversible where one object in multi-object count was unsupported by the evidence; court did not identify that Yates related to legal insufficiency
Written by the judges who cited it.
The opinion
ON PETITION FOR REHEARING BY UNITED STATES
GURFEIN, Circuit Judge:
The United States petitions for rehearing of that portion of our decision, filed July 28, 1975, 527 F.2d 311 (2 Cir.) which reversed the conviction of Scansaroli and remanded for a new trial as to him.
Natelli and Scansaroli were tried and convicted on a single count of wilfully making and causing to be made false and misleading material statements in a proxy statement. The single count specified two false statements: the “footnote” and the “nine-months earnings statement.” This court found sufficient evidence on each specification to sustain Natelli’s conviction but held as to Scansaroli that there was insufficient evidence to go to the jury on the second specification. On that basis, we concluded that as to Scansaroli the jury might have convicted only on the specification held to be insufficiently proved. 527 F.2d at 325 . We accordingly remanded for a new trial.
The government calls our attention to cases in this circuit which have held that a general motion to dismiss a count with several specifications is insufficient to preserve on appeal the point that where one of the specifications is insufficiently proved the conviction on the entire count must be reversed. These cases hold that, to preserve the point on appeal, a specific motion must be made in the trial court to withdraw the particular specification from jury consideration. United States v. Mascuch, 111 F.2d 602, 603 (2 Cir.), cert. denied, 311 U.S. 650 , 61 S.Ct. 14 , 85 L.Ed. 416 (1940); United States v. Goldstein, 168 F.2d 666, 671 (2 Cir. 1948).
No separate motion was made by Scansaroli to withdraw the earnings statement specification from consideration by the jury. He did move to strike evidence concerning the Eastern Airlines affair and also asked for an instruction that the jury had to be unanimous on each specification, but he did not move to dismiss the specification for insufficiency. The failure to move may have been dictated by tactical considerations on the theory of his able counsel that it is easier to attack a weak specification in the hope of a spillover to the stronger one. Be that as it may, we feel bound to follow the Mascuch-Goldstein rule, particularly in view of its eminent authorship.
Accordingly, we are constrained to grant the government’s petition for rehearing, and, upon rehearing, we withdraw our former determination and affirm the conviction of Scansaroli as well as Natelli.
We might suggest that in view of the turn Scansaroli’s case has taken and the short sentence he received from Judge Tyler, the District Judge who inherits the case ought carefully to consider a Rule 35 application to suspend the 10 days of jail time imposed.