United States v. Medina-Lugo

Opinion

USCA1 Opinion

November 18, 1993     [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 92-2425

UNITED STATES,

                                      Appellee,

                                          v.

                                  JOHN MEDINA-LUGO,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]
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                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
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               John Medina Lugo on brief pro se.
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               Charles E.  Fitzwilliam, United States Attorney,  and Miguel
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          A. Pereira, Assistant U.S. Attorney, on brief for appellee.
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Per Curiam.  Defendant, an attorney, was tried by a
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            jury  on  a  two  count   indictment  charging  that  he  (1)

            knowingly, willfully and with intent to defraud, falsely made

            or  forged the  endorsement, "Thelma  Rosendo,"  on a  United

            States treasury  check, in violation  of 18  U.S.C.    510(a)

            (Count One); and  (2) knowingly, willfully and with intent to

            defraud,  passed,  uttered  or  published  a  treasury  check

            bearing the  forged or falsely made endorsement of its payee,

            Thelma Rosendo, in  violation of  18 U.S.C.    510(b)  (Count

            Two).

                      The jury returned  a verdict of acquittal  on Count

            One and conviction  on Count Two.   Defendant challenges  the

            verdict and the judge's denial of his motions for acquittal.

                       We summarize the facts in the light most favorable

            to the government, drawing all reasonable inferences in favor

            of the verdicts.  United States v.  Gonzalez-Torres, 980 F.2d
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            788, 789 (1st  Cir. 1992); United States v.  Amparo, 961 F.2d
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            288, 290 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992).  In
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            1989   defendant  served  as  an  attorney  for  one  Vincent

            Bazemore, who was in jail  following his arrest in a criminal

            matter.  A  friend of Bazemore's,  Thelma Rosendo, helped  to

            arrange for Bazemore's bail by  obtaining $5000 from a Virgin

            Islands' company  which owed some  money to  Bazemore.   With

            defendant's legal assistance, Rosendo pledged the  $5000 with

            the Clerk of the United States District Court in Puerto Rico,

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to secure  Bazemore's  release.   Rosendo  was named  as  the

            surety on the bond.  

                      By  September,  1990, Bazemore's  case  was closed.

            Rosendo,   who  had  moved  to  St.  Thomas,  again  enlisted

            defendant  as an  attorney,  this time  to help  retrieve the

            $5000 she had pledged.  (Rosendo testified that the clerk had

            earlier refused to release the  money to Bazemore because  he

            was not  the nominal surety).   Defendant made a  motion, and

            promptly  obtained from  the  clerk  a  treasury  check  made

            payable   to  Rosendo.     Without  Rosendo's   knowledge  or

            permission, however, defendant endorsed the check in the name

            of Thelma Rosendo.  He also endorsed his own name and,  again

            without permission,  deposited the  money into  his own  bank

            account.  

                      Over  the  next  two years,  Rosendo  travelled  to

            Puerto Rico between  eight and twelve times, in  an effort to

            regain the $5000.  She  contacted defendant in person on each

            trip,  but defendant  denied  having  the  money.    Finally,

            Rosendo wrote  a  letter  to  Chief  Judge  Gierbolini.    An

            investigation   ensued,  during   which  defendant   admitted

            depositing  the check  to his own  account and,  motivated by

            financial  problems,   using  the  money   without  Rosendo's

            permission.  After the indictment  issued, defendant returned

            $5000 to Rosendo (who gave  the money to its rightful owner).

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Defendant  told Rosendo  then that  he  had earlier  lost her

            mailing address.  

                      Defendant  perceives  the   verdicts  as  logically

            inconsistent.  Without attempting to retrace his  contentions

            in detail, the crux of his argument is that the crime charged

            in Count One (forgery of  an endorsement) is like a predicate

            or component crime, the elements of which  are fully included

            in the  crime charged in  Count Two  (passing a check  with a

            forged  endorsement).   As  a result  of his  acquittal under

            Count  One, defendant argues,  the judge was  required to set

            aside his  conviction under  Count Two.   Defendant  cites no

            cases supporting this unusual interpretation of the statutory

            crimes  here, and  we know  of none.   Cf.  United  States v.
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            Hopkins,  853 F.2d  118 (2d  Cir.  1988) (a  violation of  18
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            U.S.C.   510(a)(2)  requires only that a person  who passes a

            Treasury check with a forged  endorsement act with an  intent

            to defraud; there is no requirement even that he specifically

            know that the endorsement is forged).  

                      In  any   event,  "[i]t   is   well  settled   that

            inconsistency  in a criminal verdict does not require setting

            the verdict aside."  Gonzalez-Torres, 980 F.2d 788 (1st  Cir.
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            1992)  (citing  cases).   The rule  is as  much a  product of

            lenity as it is of fairness and finality.

                 [I]nconsistent  verdicts  --   even  verdicts  that
                 acquit on the predicate offense while convicting on
                 the  compound  offense  --  should  not  . .  .  be
                 interpreted  as a windfall to the Government at the

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defendant's expense.   It is equally  possible that
                 the  jury, convinced of guilt, properly reached its
                 conclusion  on  the  compound  offense,  and   then
                 through mistake, compromise,  or lenity, arrived at
                 an inconsistent conclusion on the lesser offense. 

            United States v. Powell, 469 U.S. 57, 65 (1984). 
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                      Moreover,   the  verdicts   were  not   necessarily

            inconsistent.   Although  both counts  required  proof of  an

            intention, each included a different criminal act.  Count One

            required proof that defendant  had an intent to defraud  when

            he forged the  endorsement.  Count Two required  an intent to

            defraud  when  defendant  passed,  uttered  or published  the

            check.    The  jury  reasonably  could  have  concluded  that

            defendant formed a  criminal intention only after  he falsely

            endorsed the check in Thelma Rosendo's name.  That conclusion

            would  have been  entirely  consistent  with defendant's  own

            various   out-of-court   admissions,  as   reported   in  the

            witnesses' testimony.1

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            1.  For similar  reasons, we reject defendant's argument that
            his simultaneous acquittal  on one charge, and  conviction on
            the other, violated the  Double Jeopardy clause.   The clause
            protects   against   multiple    prosecutions   or   multiple
            punishments  for the same  offense.  United  States v. Dixon,
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            113 S.  Ct. 2849 (1993).   There  is no question  of multiple
            punishment  here  and   the  `same  elements'  test   is  not
            implicated since each  crime charged contains an  element not
            included  in the other.   Dixon, 113  S. Ct. at  2851 (citing
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            Blockburger  v. United  States, 284  U.S.  299, 304  (1932)).
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            Moreover, the Double Jeopardy clause protects against dangers
            caused by multiple prosecutions  in "separate proceedings for
            charges  arising out  of  a single  transaction or  course of
            conduct,  not  multiple  charges  in  the  same  proceeding."
            United States v. Barrett, 933  F.2d 355, 360 (6th Cir. 1991);
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            cf.  Powell, 469  U.S. at  65 (where  there are  inconsistent
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            verdicts, the Double Jeopardy  clause prevents the government

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Defendant also assigns as  error the judge's denial

            of his motions  for acquittal  under Fed. R.  Crim. P. 29.2  

            In   addition  to  the  inconsistency  he  perceives  in  the

            verdicts,  defendant  argues   that  there  was  insufficient

            evidence to prove that he had  an intention to defraud.  Even

            when the verdicts are  actually inconsistent, we  necessarily

            review  the  sufficiency   of  the  evidence  to   support  a

            conviction   on  one   count  "independent   of  the   jury's

            determination  that the  evidence  on  the  other  count  was

            insufficient."    Powell, 469  U.S.  at  67.   Surveying  the
                              ______

            totality of the  evidence in the light most  favorable to the

            prosecution, we must affirm denial  of a Rule 29 motion where

            sufficient evidence was produced "to allow a rational jury to

            conclude beyond  a reasonable  doubt that  the defendant  was

            guilty  of the charged offense[]."  Gonzalez-Torres, 980 F.2d
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            at 790.

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            from   challenging  the   acquittal,   but  nothing   in  the
            Constitution requires that  defendant receive a new  trial on
            the conviction).  

            2.  Defendant makes the salient point that the court may have
            erred in  reserving its ruling on the  defendant's motion for
            acquittal at the close of the government's case.  A ruling at
            that point appears to be mandatory under Fed. R. Crim. P. 29.
            See Burks v. United  States, 437 U.S. 1, 11 n.5  (1978).  The
            ___ _____    ______________
            error, nevertheless,  was not  prejudicial  to the  defendant
            because  the  government's   evidence  on  both  counts   was
            sufficient to  go to the jury at that time.  See 2 Charles A.
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            Wright, Federal  Practice and  Procedure: Criminal  2d    462
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            (1982 & supp. 1993) (citing cases).    

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There was sufficient evidence of defendant's guilt.

            The prosecution  proved that,  without permission,  defendant

            endorsed a treasury check in Thelma Rosendo's name, deposited

            it into his own account, and returned the money only after an

            indictment  issued against  him.   In  addition to  the usual

            inference  that arises  from  the  behavior  so  proved,  the

            government also produced evidence that over a two year period

            defendant  persisted  in  denying  to  Rosendo  that  he  had

            obtained  the  $5000.   When  confronted by  a  special agent

            investigating   the   matter,  defendant   finally   admitted

            depositing the check  to his own account and  using the money

            for  his  own  purposes.   While  defendant's  trial attorney

            argued,  and defendant reiterates  here, that there  may have

            been other,  innocent reasons  for defendant's  behavior, the

            government "need  not exclude every reasonable  hypothesis of

            innocence,   provided  the  record  as  a  whole  supports  a

            conclusion  of guilt beyond  a reasonable doubt."   Gonzalez-
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            Torres,  980 F.2d  at  790.   Here,  the  record as  a  whole
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            supports the defendant's conviction on Count Two.

                      For  the reasons  stated,  the  judgment  below  is

            affirmed.
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