Appeal from the United States District Court for the Eastern District of Wisconsin. No. 87 CR 6 -- Robert W. Warren, Judge.
Wood, Jr. and Flaum, Circuit Judges, and Will, Senior District Judge.*fn*
WOOD, JR., Circuit Judge.
Defendant George Richard Keskey, Jr. was indicted for three crimes. In Count 1 of the indictment, Keskey was charged with conspiring to make false statements for the purpose of influencing federally insured financial institutions to grant loans, in violation of 18 U.S.C. § 371. Counts 2 and 3 charged Keskey with aiding and abetting Ronald (Jack) Stilwell in making false statements in mortgage notes submitted to a federally insured savings and loan, in violation of 18 U.S.C. §§ 2, 1014. Following a jury trial, Keskey was found guilty of all counts. The court sentenced Keskey to two years imprisonment on each count, with the sentences to run concurrently. Keskey appeals his conviction.
Michael Maciejewski, the Milwaukee branch manager for American Title Insurance Company (ATIC), solicited the title insurance business of John Huber, a local real estate investor. Huber asked Maciejewski whether ATIC would be willing to write title insurance commitments and policies that would not reveal the existence of outstanding mortgages on the subject property. This procedure is referred to as "insuring-over." Huber assured Maciejewski that he would satisfy the undisclosed mortgages after closing on the subject property. Keskey, chief title officer and Wisconsin state legal counsel for ATIC, was present when Bill Suhr, ATIC's Wisconsin state manager, approved the insure-over operation. Keskey voiced no objections or reservations.
The insure-over scheme continued at ATIC from the fall of 1981 until March 1983, involving fifty to seventy-five separate transactions. Although Keskey knew of the ongoing insure-over operation, he never objected or attempted to stop it. In fact, Keskey's name appeared on several policies relating to Huber's properties that had been insured-over.
A. Testimony Read to the Jury
One of the primary issues at trial was the knowledge and participation of Keskey in the insure-over scheme. To prove Keskey's knowledge and participation, the government elicited testimony from Ann Racynski Sardina regarding an indemnity agreement in which Huber agreed to indemnify ATIC to the extent of $4,557,450 for losses ATIC might suffer as a result of certain undisclosed mortgages. Sardina testified that Keskey had drafted the indemnity agreement and had given it to her to type. Sardina explained that she typed Keskey's name on the second page of the document in accordance with the standard office practice of typing the name of the person who had drafted a document under the line on which he was expected to sign. Sardina's testimony regarding the indemnification agreement was significant because if Keskey actually drafted the document, that would be strong evidence of his knowledge and acquiescence in the fraudulent insure-over scheme.
During deliberations, the jury asked to review Sardina's testimony concerning the indemnity document. The court properly recognized that whether to read back testimony to the jury is a matter purely within the court's discretion. United States v. Croft, 750 F.2d 1354, 1367 (7th Cir. 1984). Accord United States v. Padin, 787 F.2d 1071, 1076 (6th Cir.), cert. denied, 479 U.S. 823, 107 S. Ct. 93, 93 L. Ed. 2d 45 (1986); United States v. Anderson, 782 F.2d 908, 917 (11th Cir. 1986); United States v. Zarintash, 736 F.2d 66, 69-70 (3d Cir. 1984). The court conferred with counsel, at which time Keskey's trial counsel,*fn1 Gary McCartan, strongly objected to the court reading any portion of the testimony to the jury. The court considered a number of factors, including the risk that reading a portion of the testimony to the jury would unduly emphasize that testimony. After carefully weighing the advantages and disadvantages, the court decided to have the court reporter read back the relevant testimony to the jury. Although courts sometimes refuse to read back testimony at the jury's request,*fn2 Keskey does not argue that the court's decision to allow testimony to be read back to the jury was an abuse of discretion.
Although the court reporter did read a portion of Sardina's testimony to the jury, no contemporaneous record was made of exactly what portion of the testimony she read. The record merely indicates that "the appropriate portions of testimony was [sic] read to the jury." After filing his notice of appeal, Keskey filed a motion with the district court to reconstruct the record pursuant to Rule 10 of the Federal Rules of Appellate Procedure.*fn3 The court granted the motion and directed the parties to submit statements outlining which portions of Sardina's testimony were read to the jury. The district court then entered an order identifying which transcript pages of the Sardina testimony had been read to the jury, concluding that all testimony relating to the indemnity document had been read.
In their submissions to the district court, the parties disagreed as to which portions of Sardina's testimony were read to the jury. McCartan had taken notes while the court reporter was reading the testimony to the jury; those notes stop at page 497, line 5 of the transcript, including only seventeen lines of cross-examination. Keskey argued that only the testimony corresponding to McCartan's notes was read to the jury.
The government, however, argued that ninety-seven additional lines of cross-examination and re-cross-examination had been read to the jury. The Assistant United States Attorney did not take notes during the reading of testimony to the jury; instead, he followed the notes that he had taken during Sardina's testimony at trial. In his affidavit, the Assistant United States Attorney stated that everything in his notes relating to the indemnity document had been read to the jury. In addition, the Assistant United States Attorney recalled that, at one point during the reading, either he or McCartan stated that there was an additional portion of Sardina's testimony relating to the indemnity document that had not yet been read. According to the Assistant United States Attorney, the court reporter then located the additional testimony and read it to the jury. The government argued that this indicated that testimony beyond ...