United States v. Alberico

559 F.3d 24, 2009 U.S. App. LEXIS 4794, 2009 WL 542225
CourtCourt of Appeals for the First Circuit
DecidedMarch 5, 2009
Docket06-1502
StatusPublished
Cited by16 cases

This text of 559 F.3d 24 (United States v. Alberico) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Alberico, 559 F.3d 24, 2009 U.S. App. LEXIS 4794, 2009 WL 542225 (1st Cir. 2009).

Opinions

HOWARD, Circuit Judge.

Lynn Alberico appeals from her conviction for conspiracy to commit money laundering. She was charged along with George Upton, her long time boyfriend, who was convicted of conspiracy to commit money laundering in a separate trial. Upton’s appeal is also before us, and is the subject of a companion opinion. United States v. Upton, 559 F.3d 3, 5-6, 2009 WL 542252, *1 (1st Cir.2009).

Alberico argues that the only conduct alleged during the statute of limitations— her failure to file a tax return for 1999— was not part of the conspiracy. She also claims that the district court erred in refusing to instruct the jury on the statute of limitations. We reject both arguments and affirm.

I.

We recite the facts in the light most favorable to the verdict. See United States v. Boulanger, 444 F.3d 76, 89 (1st Cir.2006).

Alberico owned a tailoring and alterations business on Cape Cod, Massachusetts. Her boyfriend of approximately 20 years, George Upton, owned Look Motors, Inc., a used car lot in Hyannis, Massachusetts. Their relationship ended at some point in late 1998 or early 1999.

In 1999, Alberico admitted to her best friend, Colleen Otto, that she and Upton had stolen a suitcase containing approximately $1 million in cash from lender Steven Queen during the summer of 1997 and that she and Upton’s daughter Jodi had each received $100,000 of that money. Upton and Alberico engaged in a real estate transaction shortly after the theft, allegedly in order to launder the stolen money. The details of the money laundering conspiracy, centering around the August 29, 1997 purchase and January 5, 1999 sale of 89 Iyanough Road, are recounted at length in our companion opinion in Upton. Upton, 559 F.3d at 5-7, 2009 WL 542252, **1-2.

In August 1998, Alberico filed her tax return for 1997. Her 1997 return was false in that it did not disclose the $100,000 Upton allegedly gave to her from the stolen money, nor did it disclose the rental income from 89 Iyanough Road. In July 2000, Upton also filed a false tax return for 1997, similarly omitting any portion of the stolen money or the rental income. Neither Alberico nor Upton filed a tax return for 1999, the year in which they earned a substantial capital gain from the sale of 89 Iyanough Road.'

Alberico’s trial was severed from Upton’s in August 2004. Alberico was tried in July 2005 on the same three charges that Upton was tried and convicted of: conspiracy to commit money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(b), (h), and 1957(a); filing a materially false income tax return for the year 1997, in violation of 26 U.S.C. § 7206(1); and failing to file an income tax return for the year 1999, in violation of 26 U.S.C. § 7203.

Alberico did not request a jury instruction on the statute of limitations issue at any point during trial. She filed a Rule 29(a) motion for acquittal, arguing that the conspiracy did not continue to exist within the applicable statute of limitations. This argument was summary in nature, appearing as part of a list of objections to almost every element of her charged crimes. At the close of the government’s case, the trial judge considered and denied the motion. Alberico renewed the motion for acquittal at the close of the evidence, and the district court again denied the motion.

[27]*27II.

On appeal, Alberico raises two claims: the district court committed plain error in not instructing the jury about the statute of limitations, and her motion for acquittal should have been granted because the statute of limitations bars her conviction.

A. Jury Instruction

As did Upton, Alberico argues that the district court erred by failing to instruct the jury on the statute of limitations applicable to the money laundering conspiracy. Acknowledging that she did not preserve an objection to the instructions, she argues that we should review the district court’s failure to instruct for plain error.

As we noted in Upton, we have considered the failure to request a jury instruction to waive the right to the instruction. United States v. Muñoz-Franco, 487 F.3d 25, 54 (1st Cir.2007). It is not clear to us why Alberico did not request a jury instruction on the statute of limitations issue. The issue was mentioned summarily in her motion for acquittal. Under Muñoz-Franco, Alberico’s failure to request a jury instruction and failure to object to the instructions as delivered would constitute waiver.

Even if the failure to instruct were to be reviewed for plain error, see United States v. Thurston, 358 F.3d 51, 63 (1st Cir.2004), rev’d on other grounds, Alberico would fare no better. Alberico acknowledges that she neither requested a statute of limitations instruction nor objected to the lack of such instruction. See Fed.R.Crim.P. 30(a), (d). She argues that whether a crime has occurred within the statute of limitations is a question for the jury to determine beyond a reasonable doubt, and thus the trial judge should have instructed the jury sua sponte. The argument fails. Although Alberico did raise the statute of limitations in her motion for acquittal, albeit in a summary fashion, it did not form part of her trial defense.1 “Where a defendant does not offer a particular instruction, and does not rely on the theory of defense embodied in that instruction at trial, the district court’s failure to offer an instruction on that theory sua sponte is not plain error.” United States v. George, 448 F.3d 96, 100 (1st Cir.2006) (citation and internal quotation marks omitted.)

B. Motion for Acquittal

We review de novo the denial of a motion for judgment of acquittal. United States v. Hatch, 434 F.3d 1, 4 (1st Cir.2006). A motion for judgment of acquittal is only granted if “the evidence and all reasonable inferences to be drawn from the evidence, both taken in the light most favorable to the government, are insufficient for a rational fact finder to conclude that the prosecution has proven, beyond a reasonable doubt, each of the elements of the offense.” United States v. Pimental, 380 F.3d 575, 583 (1st Cir.2004).

Much like, but not identically with, Upton, Alberico argues that the government failed to produce evidence sufficient to show that the conspiracy lasted until May 12, 1999. She argues that the conspiracy to commit money laundering, to the extent that it existed, ended with the sale of 89 Iyanough Road in January 1999. Alberico does not dispute that she committed one of the tax crimes she was charged with: failing to file a return for 1999.

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Cite This Page — Counsel Stack

Bluebook (online)
559 F.3d 24, 2009 U.S. App. LEXIS 4794, 2009 WL 542225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-alberico-ca1-2009.