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United States v. Liporace

January 9, 1998

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

EUGENE LIPORACE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

No. 96 CR 121 -- William T. Hart, Judge.

Before POSNER, Chief Judge, and CUMMINGS and MANION, Circuit Judges.

MANION, Circuit Judge.

ARGUED DECEMBER 4, 1997

DECIDED JANUARY 9, 1998

Sports memorabilia store owner Eugene Liporace was convicted of concealing assets from a bankruptcy trustee, knowingly making a false statement under oath in a bankruptcy deposition, and making a false statement on a bankruptcy petition. The district court sentenced Liporace to 18 months in prison, to be followed by three years of supervised release. Liporace appeals, asserting that the district court erred in making evidentiary rulings, in instructing the jury, and in calculating the loss for purposes of his sentence. We affirm.

BACKGROUND

Eugene Liporace, a self-described sports enthusiast, tried to turn his amateur passion into a profession by opening two Seventh Inning Stretch, Ltd. stores which specialized in sporting collectibles such as sports cards, autographed balls, bats, and figurines. Unfortunately, he couldn't make the pros--on December 11, 1991 Liporace filed for Chapter 13 bankruptcy. Sometime during this process he closed one of the stores which was located in Schaumburg, Illinois, and moved his entire business to the other store located in Palatine, Illinois.

In March 1992, the bankruptcy court converted Liporace's Chapter 13 bankruptcy into a Chapter 7 bankruptcy and appointed Andrew Maxwell trustee. Maxwell learned that Liporace was still doing business out of the Palatine store in July 1992 when Liporace's former landlord contacted Maxwell to discuss Liporace's back rent. Following this call, Maxwell hired Mr. Lawton, a former fraud investigator, to investigate the store. Maxwell selected Lawton because of his reputed knowledge about sports memorabilia. Lawton went to the Palatine store on July 26, 1992, and while there noticed numerous expensive sports cards featuring sport celebrities like Babe Ruth, Lou Gehrig, and Michael Jordan.

Two days later, on July 28, 1992, Maxwell and a paralegal went to take possession of the store. Liporace refused to turn the store over to him and called the police. The police told Maxwell to leave. He did. After Maxwell left, Liporace told Tim Prince, a part-time cashier, and Al Szewczyk, another employee, to pull any cards worth more than $75. He also told them to mix up the cards in the display case so that it looked like none of the cards were missing. Prince testified that he specifically recalled pulling the Babe Ruth and Lou Gehrig cards, and that he gave those to Liporace who put them in boxes. When Prince and Szewczyk finished removing the more expensive cards, Liporace told them to put the boxed cards in his van. In total, Liporace removed about fifteen boxes of cards.

The next day, this time armed with a court order, Maxwell returned to the Palatine store. Maxwell had a locksmith remove the locks. He next secured the premises and posted the court order. Maxwell then spent the rest of the day in the store reviewing the inventory. He specifically looked for the baseball cards that Lawton had previously seen at the store, but he could not find them. Maxwell later called Lawton, and together they looked for the Babe Ruth, Lou Gehrig, and Michael Jordan cards. They did not find them, and they have not turned up since. This is probably because, according to Szewczyk, Liporace claimed to have given the boxes of cards to an associate. Liporace also stated that the merchandise in the boxes was worth over $110,000.

Based on these and other facts irrelevant for purposes of this appeal, a grand jury indicted Liporace in a three-count superseding indictment. Count one charged him with concealment of assets in a bankruptcy case, based on Liporace's removal of the cards from the Palatine store. Count two charged him with knowingly making a false statement under oath in a deposition related to a bankruptcy proceeding, based on Liporace's testimony that he only removed one card from the store (not ten to fifteen boxes). Count three charged that Liporace made a false statement on his bankruptcy petition. (This false statement is unrelated to the Seventh Inning Stretch operations and the sports cards Liporace removed; it involved Liporace's false statement on his Chapter 13 petition that he had not transferred any real estate within one year preceding the filing.) Liporace pleaded not guilty, but a jury convicted him on all counts. He was sentenced to eighteen months in prison to be followed by a three-year period of supervised release. He was also ordered to make restitution to the bankruptcy estate in the amount of $60,000. Liporace now appeals.

DISCUSSION

On appeal, Liporace contends that the district court violated his Sixth Amendment right of confrontation by refusing to allow him to elicit testimony from Maxwell comparing how much Maxwell made as a trustee and lawyer in his bankruptcy case, versus how little creditors actually received. Liporace also challenges the court's instructions, arguing that the court wrongly refused to give the jury a "Testimony of Perjurer" instruction. Finally, Liporace objects ...


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