[NOT FOR PUBLICATION]
United States Court of Appeals For the First Circuit
No. 96-1827
UNITED STATES, Appellee,
v.
EVELYN LHERISSON, Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Pollak,** Senior District Judge.
John L. Roberts, by appointment of the Court, for appellant.
Andrew Levchuk, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
December 2, 1997
* Of the Eighth Circuit, sitting by designation.
** Of the Eastern District of Pennsylvania, sitting by designation.
Per Curiam. Evelyn Lherisson was convicted of one Per Curiam.
count of bank fraud, in violation of 18 U.S.C. 1344, and three
counts of making false statements to a federally insured
financial institution, in violation of 18 U.S.C. 1014. On
appeal she argues that (1) the government engaged in selective
prosecution in prosecuting her but not the more culpable
principal of the fraud, (2) that she received ineffective
assistance of counsel, and (3) that there was insufficient
evidence to support the jury s findings of guilt on any of the
four counts of which she was convicted. Because we find no
reversible error, we affirm.
I.
In July of 1988, Evelyn Lherisson, who represented
herself as the trustee of a substantial family trust located in
the Cayman Islands (the "LPH trust"), was introduced to Mary Anne
Krupsak, a partner in the Albany office of a New York law firm.
At the time, Krupsak was a shareholder in Valyte International, a
small corporation that was undergoing financial difficulty.
Lherisson told Krupsak that she was interested in using her
family trust s assets to help small businesses such as Valyte and
gave Krupsak various documents that purported to confirm some of
the trust s assets.
In the fall of 1988, Valyte began negotiations with
Heritage NIS-Bank for Savings concerning a $350,000 line of
credit Heritage had extended to Valyte. Valyte had drawn heavily
on the line of credit and Heritage had lost some confidence in
-2- -2-
Valyte s ability to pay its debts. On December 27, 1988, Krupsak
and the other shareholders met with Heritage officer Michael
Audette and Heritage attorney Steven Weiss to discuss the
possibility of individual Valyte shareholders providing
additional collateral for the loans in exchange for Heritage not
calling in Valyte s obligations. At that meeting Krupsak
informed Audette and Weiss that Evelyn Lherisson might be able to
assist in providing collateral for Valyte s obligations to
Heritage. Audette then spoke on the phone with Lherisson, who
advised him that she would obtain a letter of credit for $1
million as additional collateral for the Valyte loan.
On December 29, 1988, a $1 million letter of credit
made out to Krupsak and drawn on the First Investment Bank of
Garland, Texas, was faxed to Heritage. Heritage told Krupsak
that it wanted the letter modified to name Heritage as
beneficiary instead of Krupsak. Krupsak testified that she
related this request, along with other proposed modifications to
the December 29, 1988 letter of credit, to Lherisson, who replied
that she would not modify the letter but that she would send a
new letter of credit to replace it. Krupsak told Heritage of
Lherisson s plan to send a new letter of credit and, as an
interim measure, assigned her interest in the December 29, 1988
letter of credit to Heritage.
On March 24, 1989, Heritage received a document,
bearing the signature of Lherisson as trustee of the LPH trust,
constituting a $1 million letter of credit to Heritage.
-3- -3-
Thereafter, Lherisson and Krupsak commenced negotiations with
Heritage for a $4 million loan to Valyte to be secured by assets
of the LPH trust. On April 29, 1989, in support of the loan
application, Krupsak faxed a copy of an "Irrevocable Trust
Agreement" and a separate specimen "Trust Agreement" both of
which were signed by Lherisson. On May 8, 1989, Heritage
received a letter, signed by Krupsak s secretary on behalf of
Lherisson, which stated that the proposed $4 million loan would
be collateralized by United States Treasury notes.
At trial, the government introduced evidence that
neither the First Investment Bank of Garland nor the LPH trust
ever existed. The tax identification number used by Lherisson
for the LPH trust was not assigned to any person or business and
the registrar of the Cayman Islands testified that no such trust
was registered with his office. A handwriting expert testified
that the signature on the March 24, 1989 letter of credit was in
fact Lherisson s, and Krupsak s secretary testified that she
never signed or sent any correspondence on behalf of Lherisson
without being directed to do so by Lherisson herself.
The jury found Lherisson guilty of one count of bank
fraud, in violation of 18 U.S.C. 1344, and three counts of
making false statements to a federally insured financial
institution, in violation of 18 U.S.C. 1014. The false
statement counts were based on: 1) the $1 million December 29,
1988 letter of credit; 2) the $1 million March 24, 1989 letter of
credit; and 3) the May 8, 1989 letter.
-4- -4-
Post-trial, Lherisson underwent a psychiatric
examination. At sentencing, Lherisson s attorney asserted that
Lherisson suffered from delusions and was operating in a
diminished mental state during the time she was communicating
with Krupsak and Heritage. The district court sentenced
Lherisson to 15 months imprisonment and three years supervised
release.
II.
Lherisson advances three arguments in this appeal.
First, Lherisson argues that her convictions arose from selective
prosecution because the government chose to prosecute her ("an
indigent black woman who was suffering from a severe mental
disability") and not Mary Anne Krupsak (a "white, non-disabled
person" with "political and financial clout"). Second, Lherisson
claims that she received ineffective assistance of counsel.
Third, Lherisson claims that there was insufficient evidence to
support the jury s verdict.
Lherisson did not raise her selective prosecution claim
prior to trial as required by Fed. R. Crim. P. 12(b), and
therefore has waived this claim, Fed. R. Crim. P. 12(f), see also
Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984), cert.
denied, 469 U.S. 1109 (1985), unless "exceptional circumstances"
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[NOT FOR PUBLICATION]
United States Court of Appeals For the First Circuit
No. 96-1827
UNITED STATES, Appellee,
v.
EVELYN LHERISSON, Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Boudin, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Pollak,** Senior District Judge.
John L. Roberts, by appointment of the Court, for appellant.
Andrew Levchuk, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for
appellee.
December 2, 1997
* Of the Eighth Circuit, sitting by designation.
** Of the Eastern District of Pennsylvania, sitting by designation.
Per Curiam. Evelyn Lherisson was convicted of one Per Curiam.
count of bank fraud, in violation of 18 U.S.C. 1344, and three
counts of making false statements to a federally insured
financial institution, in violation of 18 U.S.C. 1014. On
appeal she argues that (1) the government engaged in selective
prosecution in prosecuting her but not the more culpable
principal of the fraud, (2) that she received ineffective
assistance of counsel, and (3) that there was insufficient
evidence to support the jury s findings of guilt on any of the
four counts of which she was convicted. Because we find no
reversible error, we affirm.
I.
In July of 1988, Evelyn Lherisson, who represented
herself as the trustee of a substantial family trust located in
the Cayman Islands (the "LPH trust"), was introduced to Mary Anne
Krupsak, a partner in the Albany office of a New York law firm.
At the time, Krupsak was a shareholder in Valyte International, a
small corporation that was undergoing financial difficulty.
Lherisson told Krupsak that she was interested in using her
family trust s assets to help small businesses such as Valyte and
gave Krupsak various documents that purported to confirm some of
the trust s assets.
In the fall of 1988, Valyte began negotiations with
Heritage NIS-Bank for Savings concerning a $350,000 line of
credit Heritage had extended to Valyte. Valyte had drawn heavily
on the line of credit and Heritage had lost some confidence in
-2- -2-
Valyte s ability to pay its debts. On December 27, 1988, Krupsak
and the other shareholders met with Heritage officer Michael
Audette and Heritage attorney Steven Weiss to discuss the
possibility of individual Valyte shareholders providing
additional collateral for the loans in exchange for Heritage not
calling in Valyte s obligations. At that meeting Krupsak
informed Audette and Weiss that Evelyn Lherisson might be able to
assist in providing collateral for Valyte s obligations to
Heritage. Audette then spoke on the phone with Lherisson, who
advised him that she would obtain a letter of credit for $1
million as additional collateral for the Valyte loan.
On December 29, 1988, a $1 million letter of credit
made out to Krupsak and drawn on the First Investment Bank of
Garland, Texas, was faxed to Heritage. Heritage told Krupsak
that it wanted the letter modified to name Heritage as
beneficiary instead of Krupsak. Krupsak testified that she
related this request, along with other proposed modifications to
the December 29, 1988 letter of credit, to Lherisson, who replied
that she would not modify the letter but that she would send a
new letter of credit to replace it. Krupsak told Heritage of
Lherisson s plan to send a new letter of credit and, as an
interim measure, assigned her interest in the December 29, 1988
letter of credit to Heritage.
On March 24, 1989, Heritage received a document,
bearing the signature of Lherisson as trustee of the LPH trust,
constituting a $1 million letter of credit to Heritage.
-3- -3-
Thereafter, Lherisson and Krupsak commenced negotiations with
Heritage for a $4 million loan to Valyte to be secured by assets
of the LPH trust. On April 29, 1989, in support of the loan
application, Krupsak faxed a copy of an "Irrevocable Trust
Agreement" and a separate specimen "Trust Agreement" both of
which were signed by Lherisson. On May 8, 1989, Heritage
received a letter, signed by Krupsak s secretary on behalf of
Lherisson, which stated that the proposed $4 million loan would
be collateralized by United States Treasury notes.
At trial, the government introduced evidence that
neither the First Investment Bank of Garland nor the LPH trust
ever existed. The tax identification number used by Lherisson
for the LPH trust was not assigned to any person or business and
the registrar of the Cayman Islands testified that no such trust
was registered with his office. A handwriting expert testified
that the signature on the March 24, 1989 letter of credit was in
fact Lherisson s, and Krupsak s secretary testified that she
never signed or sent any correspondence on behalf of Lherisson
without being directed to do so by Lherisson herself.
The jury found Lherisson guilty of one count of bank
fraud, in violation of 18 U.S.C. 1344, and three counts of
making false statements to a federally insured financial
institution, in violation of 18 U.S.C. 1014. The false
statement counts were based on: 1) the $1 million December 29,
1988 letter of credit; 2) the $1 million March 24, 1989 letter of
credit; and 3) the May 8, 1989 letter.
-4- -4-
Post-trial, Lherisson underwent a psychiatric
examination. At sentencing, Lherisson s attorney asserted that
Lherisson suffered from delusions and was operating in a
diminished mental state during the time she was communicating
with Krupsak and Heritage. The district court sentenced
Lherisson to 15 months imprisonment and three years supervised
release.
II.
Lherisson advances three arguments in this appeal.
First, Lherisson argues that her convictions arose from selective
prosecution because the government chose to prosecute her ("an
indigent black woman who was suffering from a severe mental
disability") and not Mary Anne Krupsak (a "white, non-disabled
person" with "political and financial clout"). Second, Lherisson
claims that she received ineffective assistance of counsel.
Third, Lherisson claims that there was insufficient evidence to
support the jury s verdict.
Lherisson did not raise her selective prosecution claim
prior to trial as required by Fed. R. Crim. P. 12(b), and
therefore has waived this claim, Fed. R. Crim. P. 12(f), see also
Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984), cert.
denied, 469 U.S. 1109 (1985), unless "exceptional circumstances"
exist which excuse her failure to raise the claim in a timely
fashion. See United States v. Gary, 74 F.3d 304, 313 (1st Cir.),
cert. denied, 116 S. Ct. 2567 (1996). Lherisson argues that her
claim of selective prosecution became manifest only after trial
-5- -5-
when the District Court ordered and obtained reports on her
mental condition.
Lherisson attributes her failure to undergo psychiatric
evaluation (and hence her failure to raise the claim of selective
prosecution) prior to trial to the ineffectiveness of her trial
counsel. However, Lherisson did not raise the claim of
ineffective assistance of counsel before the district court, and
therefore we are left without the factual development necessary
for adequate review. Accordingly, we will follow our customary
practice of not addressing claims of ineffective assistance
raised for the first time on appeal. See United States v.
Carrington, 96 F.3d 1, 6 (1st Cir. 1996), cert. denied, 117 S.
Ct. 1328 (1997). Our declination to consider this issue now is
without prejudice to Lherisson s entitlement to raise the issue
in a collateral challenge to her conviction. See United States
v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).
In her final claim, Lherisson argues that there was
insufficient evidence to support the jury s verdict. This claim
takes two forms. First, she asserts that she could not be
convicted of aiding and abetting without evidence of a culpable
principal. However, on each count the district court instructed
the jury in conformity with 18 U.S.C. 2(b), which provides
that:
[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
18 U.S.C. 2(b). Under this section, a culpable principal is
-6- -6-
not required. "[A] defendant may be convicted as an aider and
abettor through proof that he caused an innocent person to commit
a criminal offense." United States v. Tashjian, 660 F.2d 829,
842 n.26 (1st Cir.)(alterations and internal quotation marks
omitted), cert. denied, 454 U.S. 1102 (1981); see also United
States v. Dodd, 43 F.3d 759, 762-63 (1st Cir. 1995).
Lherisson also argues that the government did not show
that her statements to Heritage were made with the intent to
defraud. Where a defendant challenges the sufficiency of the
evidence, this court must look to see "whether, drawing all
inferences in the government s favor, a rational jury could find
guilt beyond a reasonable doubt." United States v. Montilla-
Rivera, 115 F.3d 1060, 1063 (1st Cir. 1997). Lherisson does not
dispute that the trust never existed and that the letters of
December 29, 1988, March 24, 1989, and May 8, 1989 were false.
Audette and Krupsak both testified that Lherisson was aware that
Valyte s negotiations with Heritage were for the purpose of
preventing Heritage from calling in Valyte s loans or obtaining
new loans for Valyte. A jury could have reasonably inferred that
Lherisson knew the trust did not exist and that, in making
statements about the trust to Krupsak and representatives of
Heritage at a time she knew that they believed she was going to
use the trust s assets to help Valyte in its negotiations with
Heritage, Lherisson intended to defraud Heritage. The jury s
verdict is therefore supported by sufficient evidence.
III.
-7- -7-
For the foregoing reasons, the judgment of the district
court is affirmed.
-8- -8-