United States v. McCaskill

62 F. App'x 71
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 19, 2003
DocketNo. 02-1227
StatusPublished
Cited by2 cases

This text of 62 F. App'x 71 (United States v. McCaskill) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth 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. McCaskill, 62 F. App'x 71 (6th Cir. 2003).

Opinion

NELSON, Circuit Judge.

Andrew McCaskill was convicted on various charges arising from the negotiation of two stolen and forged checks.1 In this appeal, Mr. McCaskill argues that the evidence was insufficient to support his convictions; that the indictment was improperly multiplicitous; and that the prosecutor engaged in misconduct that deprived him of a fair trial. Unpersuaded by these arguments, we shall affirm the judgment of conviction.

I

In July of 1999 Mr. McCaskill began doing business as “Exemplar System Solutions.” Although Exemplar was a corporation, Mr. McCaskill filed an assumed name certificate under Michigan law attesting that he himself owned, conducted or transacted business under the Exemplar name. The ostensible purpose of the business was to market Canadian-built computers to American schools.

On the same day that he filed the certificate, Mr. McCaskill opened a bank account [73]*73for Exemplar System Solutions. He was the only authorized signator on the account.

Two checks totaling $600,000 were soon deposited in the Exemplar account. The first, a $200,000 check deposited in August, was drawn on the account of Lawrence Abstract Company of Cherry Hill, New Jersey. The second, a $400,000 check deposited in September, was drawn on the account of Trident Land Transfer Company, also of Cherry Hill. When his case was before the district court, Mr. McCaskill acknowledged having deposited these checks.2

It was later discovered that the checks had been stolen from Lawrence Abstract Company and Trident Land Transfer Company, neither of which had done any business with Exemplar. The signature on each check was forged.

By October 29, 1999, the Exemplar account had been depleted to less than $2400. Dozens of checks were drawn on the account in August, September, and October of 1999. All bore the signature “Andrew McCaskill.” Many of the cheeks were made payable to cash, and these were endorsed by McCaskill as payee. Others of the checks were made payable to McCaskill’s brother, Luther McCaskill.

After the theft of the checks was discovered and reported, bank investigators contacted Exemplar. The investigators spoke to Luther McCaskill, who stated that the checks represented the proceeds of a $600,000 loan obtained by Exemplar from a man named George Mattioli. As evidence of the loan, Luther McCaskill provided the investigators with a copy of a promissory note obligating Exemplar to pay George Mattioli $600,000. The note was dated August 4,1999.

Mr. Mattioli, who died of cancer in October of 1999, had no connection with Lawrence Abstract Company or Trident Land Transfer Company. A member of the Mattioli family who had seen Mr. Mattioli almost daily from July of 1999 until his death never heard him mention a $600,000 loan, the McCaskñls, or Exemplar. The same family member testified that, at the time of his death, Mr. Mattioli did not have enough money to pay his bills.

In April of 2000 a federal grand jury indicted Andrew and Luther McCaskill on charges of conspiracy, possession and utterance of forged checks, bank fraud, and interstate transportation of forged checks. In addition, six counts of the indictment charged the defendants with engaging in monetary transactions with criminally derived property of a value greater than $10,000. Each of these six transactions involved the cashing of an Exemplar cheek payable to cash.

Mr. McCaskill was tried before a jury.3 He moved for a judgment of acquittal at the conclusion of the government’s case, arguing that there was insufficient evidence that he knew the Lawrence and Trident checks were stolen. The district court denied the motion, and the jury convicted McCaskill on all counts. The district court ordered restitution of the $600,000 and imposed a sentence of imprisonment for 33 months plus three years of supervised release. This appeal followed.

[74]*74II

Mr. McCaskill argues first that there was insufficient evidence to convict him of any of the charges in the indictment. His argument must fail if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We are satisfied that the evidence was sufficient under Jackson.

With respect to the charge of conspiracy, Mr. McCaskill contends that there was no evidence of an agreement between him and his brother relating to the forged checks.4 But a conspiracy conviction does not require proof of an express agreement; evidence of a “tacit or mutual understanding” is sufficient. United States v. Sanchez, 928 F.2d 1450, 1457 (6th Cir.1991); see, e.g., United States v. Crossley, 224 F.3d 847, 856 (6th Cir.2000). Such an understanding may be inferred from the defendant’s actions and the surrounding circumstances. See, e.g., United States v. Milligan, 17 F.3d 177, 183 (6th Cir.), cert. denied, 513 U.S. 879, 115 S.Ct. 211, 130 L.Ed.2d 140 (1994); United States v. Christian, 786 F.2d 203, 211 (6th Cir.1986). Here there was evidence that Andrew McCaskill deposited and drew upon the checks, despite his never having done business with the companies that purportedly issued them. There was also evidence that Luther McCaskill, if he did not acquire the checks, at least assumed responsibility for explaining their acquisition to investigators. The evidence is thus sufficient to support an inference that the brothers knew the checks to be fraudulent but agreed to pass them off as legitimate.

With respect to the other charges against him, Mr. McCaskill contends that there was insufficient evidence that he knew the checks were forged. But the verdict is supported by evidence that McCaskill deposited the checks and withdrew the funds when Exemplar had never done business with Lawrence Abstract Company or Trident Land Transfer Company.

Notwithstanding his concession at trial that it was he who deposited the checks, Mr. McCaskill now argues that there was insufficient evidence of his having done so. The argument would be unpersuasive even without a waiver. The bank teller who handled the $200,000 deposit testified that she dealt only with Andrew McCaskill, and the teller who handled the $400,000 deposit, without remembering who made the deposit, suggested that she typically dealt with Andrew McCaskill. In conjunction with other evidence that Mr. McCaskill handled Exemplar’s banking—he opened its account and he signed all of its checks—this testimony was sufficient to enable a rational jury to find that McCaskill deposited the checks.5

A rational jury could also find that Mr.

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Bluebook (online)
62 F. App'x 71, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mccaskill-ca6-2003.