USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2167
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO MEDINA PUERTA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Morris M. Goldings with whom Richard S. Jacobs and Mahoney,
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Hawkes & Goldings were on brief for appellant.
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Timothy Q. Feeley, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.
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October 21, 1994
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BOUDIN, Circuit Judge. On September 5, 1991, a grand
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jury indicted Antonio Medina Puerta, charging him with one
count of bank fraud under 18 U.S.C. 1344 and one count of
transportation in foreign commerce of stolen or fraudulently
obtained funds under 18 U.S.C. 2314. The gist of the
events described in the indictment was that Medina had
deposited a $365 check in his Bank of Boston account,
knowingly misrepresented the amount as $365,000, ultimately
received a credit of $365,000 to his account, and then
transferred $350,000 of these fraudulently obtained funds to
his account in an English bank.
At arraignment on October 8, 1991, the magistrate-judge
ordered that pre-trial motions by the defense be filed by
November 1, 1991. On this deadline, Medina filed a number of
motions that were subsequently resolved. Medina's trial date
was repeatedly delayed, largely at his own request, until
January 4, 1993. In the meantime, on November 24, 1992,
following a change of counsel by Medina, his new counsel
submitted five additional pre-trial motions, accompanied by a
motion seeking leave to file the motions late.
One of these motions--with which this appeal is in part
concerned--asked that the case be dismissed on the ground
that it was being pursued in breach of a promise by the
prosecutor made in 1987 not to prosecute if Medina made
restitution to the bank of $200,000. The government opposed
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the motion to file out of time. On December 30, 1992, the
district court denied the request to file motions out of time
(with exceptions not here relevant), ruling that good cause
had not been shown for the late filing. The court also said
that it had "nevertheless" examined the substantive motions
to see whether an exception should be made in the interests
of justice; in giving a negative answer, the court found the
assertions made in support of the motion to dismiss were
insufficient to justify an evidentiary hearing.
Medina was tried in January 1993. The evidence, taken
in the light most favorable to the government, see United
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States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, 63
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U.S.L.W. 3265 (U.S. Oct. 3, 1994), showed the following. In
1986 Medina was a research associate at a non-profit research
organization in Boston then known as the Eye Research
Institute. Medina had been born and raised in Spain and was
fluent in both English and Spanish. He had Spanish graduate
degrees in optics and engineering and a graduate degree in
electrical engineering from Massachusetts Institute of
Technology.
On November 3, 1986, Medina deposited a check in his
account in that branch of the Bank of Boston where he did
most of his banking. The check was a bank check prepared by
Banco Central of Spain, dated October 30, 1986, at Toledo,
Spain, and was made payable to Medina. The written
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designation of the amount was, in Spanish, "Dolares USA,
Trescientos Sesenta Y Cinco," which translates as "three
hundred and sixty-five U.S. dollars." There was also an
arabic-numeral expression of the amount in a small box on the
right-hand side of the check: "USD 365,ooo." The words
"First National Bank of Boston" appear on the check, and both
the government and Medina have described it as a check drawn
on Banco Central's own checking account at the Bank of
Boston.
When Medina deposited the check in his account on
November 3, 1986, he listed the amount on the deposit slip as
"$365,000." Two days later, on November 5, Medina returned
to the branch and requested a customer service
representative, Lisa Popielski, to wire $350,000 from
Medina's checking account to an account in England. Apart
from the November 3 deposit, Medina's balance was about
$3,000. Popielski said that she needed to verify that the
check had been collected and asked Medina to return the next
day. When Medina returned on November 6, Popielski told him
that the $365,000 credit had been deleted from his account
and the check had been returned to him by mail. She told him
to bring the check back to her if he intended to redeposit
it.
The following day, November 7, Medina returned with the
check and Popielski told Medina that the check had been
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returned for lack of his endorsement; he then signed the back
of the check, Popielski filled out a second deposit slip for
him in the amount of $365,000, and Medina redeposited the
check into his account. On November 12, Medina returned to
the bank and signed a wire transfer order, directing the
transfer of $350,000 to an account in his name at Lloyd's
Bank in Cambridge, England. Later that morning the funds
were wired to England.
When interviewed by the FBI in early December 1986,
Medina admitted that he had deposited the check but explained
that he thought that the check was funding from a Spanish
ministry for a research grant for his work at the Eye
Research Institute. He said that he had purchased about
$150,000 worth of equipment in Spain where it remained and
where some of the research was to be conducted. Medina
subsequently gave to the FBI a letter from a Spanish ministry
stating that a committee had agreed to propose the funding of
a grant.
Medina also submitted to the FBI a summary document
prepared within the National Institutes of Health which
recommended NIH approval of a research application by Medina
with proposed funding of $282,286. There was evidence at
trial that this application had never been finally approved
and that, if it had been funded, the Eye Research Institute
and not Medina would have received the funds. There was also
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some evidence, apparently disputed, that Medina had in fact
purchased $138,755 in specialized equipment in Spain.
At trial it developed that the bank had stumbled
repeatedly. The processing section of the bank had queried
Banco Central about the check, and on November 6, the day
before Medina had redeposited the check, Banco Central had
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wired that the proper amount of the check was $365. When
Medina redeposited the check on November 7, only $365 was
debited against Banco Central's account, but Medina was
credited with a $365,000 deposit. An interoffice adjustment
slip was prepared to reduce Medina's deposit by $364,635, but
Medina's account records were not corrected until on or about
November 25 when most of the money had long since been
transferred to England.
Although Medina did not testify, his position at trial
was that this was an innocent misunderstanding. Medina did
present an expert witness who was familiar with Spain and
Spanish accounting who gave testimony on the differences
between American and Spanish practices in the writing and
punctuation of arabic numbers on large checks. The
government's position was that Medina had certainly read the
written Spanish words on the check, which indisputedly
represented its amount as $365, and had known that he was not
entitled to $365,000.
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On January 28, 1993, the jury convicted Medina on both
counts. Thereafter, Medina filed post-trial motions renewing
his request for an evidentiary hearing on the government's
supposed breach of a promise not to prosecute. In a
supplemental memorandum, Medina said that new evidence showed
that the government had a motive to retaliate which explained
its breach of the alleged promise not to prosecute. The
court denied the motions, calling the proffer inadequate. On
September 30, 1993, the court sentenced Medina to 18 months'
imprisonment and required that Medina pay fines or
restitution in a total amount of $150,000. The court stayed
the sentence pending this appeal.
Medina's initial arguments on appeal relate to his pre-
and post-trial requests for a hearing on his claim that the
government breached its promise not to prosecute if
restitution were made. The government says that the original
pre-trial motion was submitted late, together with the
request for leave to file; leave was not granted because no
adequate excuse for the delay was given; and that should be
the end of the matter. Medina, scarcely acknowledging the
refusal to grant his motion to file late, attacks the
district court's ruling that the proffer was insufficient to
justify an evidentiary hearing.
We see no reason to choose between the alternative
grounds for denial of a hearing--lateness and lack of merit--
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because each is adequate. The original motion was filed long
after the deadline with no explanation other than a change of
counsel. Where the district court refuses to allow a new
motion to be filed out of time, the standard on appeal is
abuse of discretion. E.g., United States v. Roberts, 978
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F.2d 17, 21 n.5 (1st Cir. 1992). If the district judge had
rested solely on the lateness of the pre-trial motion and
refused to entertain a post-trial replicate of the same
motion, there would be no abuse of discretion. Nor would the
district court's precautionary comment on the merits in
denying leave to file either remove the lateness objection or
alter our standard of review.
The result is no different if we do consider the merits.
In substance, Medina's proffer asserted that in July 1987 an
assistant U.S. attorney advised Medina's then counsel that
the government would not prosecute Medina if he would agree
to make restitution to the bank in the amount of $200,000.
The proffer then concluded: "By the end of 1988, I [Medina]
had paid the Bank of Boston an amount greater than $200,000."
Medina's affidavit was also the basis for the post-trial
motion making the same request for a hearing on the same
ground.
This affidavit does not say that Medina ever formally
accepted the government's offer or that his payments to the
bank were in compliance with the purported agreement. Our
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sense that the affidavit is the product of artful drafting is
reinforced by indications that the Bank of Boston recovered
substantial amounts by attaching Medina's account at another
bank. Medina also made no effort, as far as we can
ascertain, to remedy the deficiencies in his affidavit after
they were first noted by the district court. Evidentiary
hearings are not required when there is no likely prospect
that they will be fruitful. United States v. McAndrews, 12
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F.3d 273, 280 (1st Cir. 1993).
The supplementary post-trial claim that the prosecution
was based on a vindictive motive is scarcely worth comment.
Medina's further affidavit on this issue is both sketchy and
jumbled, but rests importantly on a lawsuit brought by Medina
against the government. The government pointed out in a
motion to strike Medina's submission that the lawsuit in
question was brought after Medina had been indicted. Its
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untimeliness aside, Medina's new affidavit added little to
the prior one and provided no independent basis for an
evidentiary hearing.
Several of Medina's merits arguments are significant.
We start with those that relate only to bank fraud which was
the offense charged in count I of the indictment. As it
stood at the time Medina deposited his check (it has since
been twice amended), the statute in pertinent part read as
follows:
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(a) Whoever knowingly executes, or attempts to execute,
a scheme or artifice --
(1) to defraud a federally chartered or
insured financial institution or
(2) to obtain any of the moneys, funds,
credits, assets, securities, or other
property owned by, or under the custody
or control of, a federally chartered or
insured financial institution by means of
false or fraudulent pretenses,
representations, or promises . . . .
[shall be punished as set forth in the
statute].
18 U.S.C. 1344(a).
Count I of the indictment charged that Medina had
executed or attempted to execute a scheme both to defraud a
federally chartered or insured bank and to obtain its
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property by false or fraudulent representations. Consistent
with the statutory language, the district judge told the jury
that it could convict on count I if it found either a scheme
to defraud or a scheme to obtain property by means of false
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or fraudulent representations.
Medina's first objection is that under subsection
(a)(2), two or more misrepresentations are required1 and
that here, according to Medina, the government charged only
one misrepresentation and proved none at all. The government
responds that the evidence was adequate to show a scheme to
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1This issue was left open in United States v. Lilly, 983
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F.2d 300, 305 n.10 (1st Cir. 1992), and we have no occasion
to decide it here.
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defraud under subsection (a)(1) so that it does not matter
whether misrepresentations need to be multiple or were
adequately proved under subsection (a)(2). But here, the
false or fraudulent representations charge was also submitted
to the jury as an alternative basis for convicting under
count I. Thus, at least in theory, a problem might be
presented for the government if it had charged only one false
representation or failed to prove any.
In fact, we think that the government's indictment
alleged multiple representations and the evidence permitted
the jury to find at least two. The indictment charged Medina
with making false and fraudulent "representaions" [sic], and
the district court charged the jury that "representations"
were required. Although the indictment also said that
Medina's conduct involved submitting "a check he represented
to be in the amount of $365,000.00, knowing the check to be
in the true amount of $365.00," we do not see why this
generic statement prevented the government from proving that
this representation was made more than once.
As for the adequacy of the evidence, two
misrepresentations could easily have been found. Medina's
first deposit slip said that the check was in the amount of
$365,000 when the words on the check said plainly, although
in Spanish, that the amount was $365. When the check was
redeposited on November 7, Medina again submitted a deposit
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slip in the larger amount. Medina does not claim that the
check was actually for $365,000. Instead he says that
Popielski completed the second deposit slip and that there is
no evidence to show that he (Medina) filled out the first
one.
Ample evidence showed that it was Medina who submitted
the check on November 3 with a deposit slip in the amount of
$365,000; the evidence included surveillance photographs
showing him at the teller's window making a deposit
transaction at the time stamped on the bank of his deposit
slip. As for the redeposit on November 7, again confirmed by
a surveillance photograph of Medina at the teller's window,
it is irrelevant that Popielski wrote the amount on the
second deposit slip so long as Medina knowingly presented it.
Thus, there was proof of at least two false representations
by Medina, one on each presentation of the check.
Medina's second argument on count I is that the district
court erred in refusing to instruct the jury that "the
deposit of a check alone [is not] a misrepresentation" and
that "[a] check is not a factual assertion at all and
therefore cannot be characterized as true or false." These
requested statements were drawn from Williams v. United
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States, 458 U.S. 279 (1982), where the Court said that a
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check was merely an order to pay funds and did not constitute
an implied representation that the one who made and deposited
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it actually had funds in the account on which the check was
drawn.2 The district court refused to charge the jury in
this case with the language drawn from Williams. We believe
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that its decision was correct.
The government in our own case was not relying on any
implied representation that Medina had funds on deposit
sufficient to cover the check. Rather, the government
charged that in depositing the check Medina had affirmatively
misrepresented--at least through the deposit slips--that the
check being deposited was one whose face value was $365,000.
We have read both the indictment and the government's closing
arguments to the jury, and conclude that there is no chance
that the jury misunderstood the government's theory. That
theory does not present the implied misrepresentation problem
addressed in Williams.
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Next, in a very brief argument, Medina claims without
explanation that "the only possible victim" of any scheme to
defraud in the present case would have been Banco Central,
admittedly not a federally chartered or insured institution.
The evidence showed the Bank of Boston, which is covered by
the statute, was induced by Medina's misrepresentations to
pay out a large sum to Medina. It is not clear whether Bank
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2Williams was a prosecution under a false statements
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statute of a defendant who deposited in his account in one
bank a check--not covered by adequate funds--that he drew on
his account in a second bank.
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of Boston might have had a claim against Banco Central or its
account for the latter's mistake in depicting arabic
numerals; Banco Central, after all, had warned Bank of Boston
about the mistake before the redeposit. But that possibility
does not alter the fact that Bank of Boston was the immediate
victim of the fraud.
Finally, Medina makes the interesting argument that the
jury might have convicted Medina without true unanimity, some
(but not all) jurors believing that he had violated section
1344(a)(1), and others (but not all) believing that he
violated section 1344(a)(2). Both the government and Medina
agree that the two subsections identify separate crimes.
Accord United States v. Bonnett, 877 F.2d 1450, 1455 (10th
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Cir. 1989). If so, it follows that Medina could not be
convicted of a crime unless the jurors could all agree that
at least one of the subsections had been violated. This same
problem is sometimes presented where a single crime is
defined by several alternative acts any one of which suffices
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for conviction.3
The government accepts that unanimity was required but
cites us to a "general rule" that "when a jury returns a
guilty verdict on an indictment charging [in one count]
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3Compare United States v. Gipson, 553 F.2d 453 (5th Cir.
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1977), involving a statute directed at anyone who "receives,
conceals, stores, barters, sells or disposes of" certain
stolen property. See generally 3 W. LaFave & J. Israel,
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Criminal Procedure 23.7 (1984).
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several acts in the conjunctive, the verdict stands if the
evidence is sufficient with respect to any one of the acts
charged." United States v. Murray, 621 F.2d 1163, 1171 n.10
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(1st Cir.), cert. denied, 449 U.S. 837 (1980). See also
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Turner v. United States, 396 U.S. 398, 420 (1970). But it is
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one thing to say that the evidence is sufficient if adequate
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to establish any one of several acts charged in the
alternative; it is quite another to take the general language
of Murray and Turner to foreclose any inquiry into the
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adequacy of the instructions.
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Here, the government concedes that two separate crimes
were created by the two subsections. Thus, we see no reason
why Medina would not have been entitled on request to an
instruction that the jury had to agree unanimously that
either section (a)(1) or subsection (a)(2) was violated (or
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both). Of course, where two separate crimes are charged but
each in a separate count, the problem evaporates because the
jury is told that it must be unanimous on each count of
conviction. Here, the government charged a violation of both
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subsections in a single count, and Medina, probably not
wishing to be charged with three counts rather than two,
apparently did not argue that count I was duplicitous. Thus,
the risk of jury confusion cannot be answered here by
pointing to the normal requirement that the jury be unanimous
on any count of conviction.
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The government argues that the district court in this
case charged the jury that it could find either a scheme to
defraud "or" a scheme to obtain monies by means of false
representations; that the government had "to prove each part
of each offense beyond a reasonable doubt"; and that the jury
verdict must be unanimous. But these instructions do not
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clearly tell the jury that it had to be unanimous in finding
within count I of the indictment either a scheme to defraud
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or a scheme based on false representations. That is perhaps
what the jury would have understood, but it is not
inevitable.
Still, the defense did not ask for any clarification or
instruction on this issue, so reversal can be had only for
plain error. E.g., United States v. Arias-Santana, 964 F.2d
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1262, 1268 (1st Cir. 1992). We see no practical likelihood
that the jury could have divided along the lines now
suggested by Medina. Although in theory we may be talking
about two separate crimes, in this case the evidence offered
as to count I made the same conduct the basis for both the
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fraud and misrepresentation branches of count I. Indeed,
that is probably why the government charged both subsections
in a single count. In all events, on this evidence, the jury
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either had to believe that Medina violated both subsections
or neither. There was no realistic possibility of a split
verdict of the kind now conjectured by Medina.
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If the trial judge had been asked to clarify the point,
quite likely he would have told the jury that it had to find
unanimously either a scheme to defraud or a scheme based on
false representations. Probably he was not asked to do so
because no actual threat existed here of a non-unanimous
verdict. There was not only no plain error but arguably no
error at all. On other facts--for example, where divergent
conduct underlay the two branches of subsection (a) or the
same conduct could realistically violate one branch but not
the other--our view might be quite different.
Medina's next claim of error relates to count II of the
indictment in which he was charged with having "transmitted
and transferred in foreign commerce money in the amount of
$350,000.00, more or less, knowing the same to have been
stolen, converted and taken by fraud . . . ." The statute in
pertinent part makes it unlawful to "transport in interstate
or foreign commerce any goods, wares, merchandise, securities
or money, of the value of $5,000 or more, knowing the same to
have been stolen, converted or taken by fraud." 18 U.S.C.
2314.
Medina argues on appeal that under this statute the
property must have been stolen "before being transported."
See United States v. Tashjian, 660 F.2d 829, 840 (1st Cir.),
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cert. denied, 454 U.S. 1102 (1981). Here, Medina's brief
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says blandly but without explanation, "no money had been
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stolen or taken by fraud at the time of the transfer."
Possibly what Medina intends to argue is that the bank's
money was not stolen, converted or taken by fraud merely on
account of the wrongful credit to Medina's account on
November 7 because at that time no money had yet been paid
out by the bank. Put differently, Medina may be claiming
that when transferred the money had not yet been stolen.
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We see no reason why the fraudulent taking required any
more than Medina's deposit of the check in Medina's account,
the misrepresentations, the availability of the money to
him, and the requisite scienter. Popielski testified that
the $365,000 was available to Medina for withdrawal on
November 10, at least two days before the wire transfer to
England. True, the bank could have nullified the deposit
before the transfer, had it been more alert; but from
November 10 onward the money was just as much available to
Medina as if it were cash stored under his mattress.
Medina's final set of arguments is directed to both of
the counts against him. He starts with a straightforward
argument that the Bank of Boston could not have been
defrauded of its money, nor could the money have been taken
by fraud, since Banco Central informed Bank of Boston prior
to the second deposit on November 7 that the amount of the
check was $365. The government concedes that a defendant,
whatever his state of mind, cannot be convicted of possessing
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drugs or stolen property if the substance is not in fact a
controlled substance or the property not stolen. E.g. United
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States v. Rose, 590 F.2d 232, 235 (7th Cir. 1978), cert.
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denied, 442 U.S. 929 (1979); United States v. Oviedo, 525
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F.2d 881, 885-86 (5th Cir. 1976). In such cases, of course,
a change in the nature of the property can defeat an
essential element of the offense.
The government may overstate the matter in arguing that
"[i]n contrast the crime of bank fraud focuses on Medina and
his state of mind, and not on the conduct of the bank." It
might be difficult to defraud an individual, or obtain
property by fraud, if the "victim" were well aware that the
defendant's statements were untrue. But the analogy is
unrealistic as applied to a large bank which happens to have
the true facts somewhere in its files. There is no
indication that Banco Central's warning was known to the bank
teller who accepted the check for credit on November 7 or to
Popielski when she facilitated the deposit and authorized the
wire transfer.
It may well be that for other purposes, say under the
Uniform Commercial Code, notice to the bank through proper
channels is, in some sense and for some purposes, notice to
everyone within the bank. But Medina did defraud the bank
representatives with whom he dealt; and money was credited to
his account and transferred out of the bank because of their
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belief in his statements, and not on some independent basis.
It is hard to imagine any reason of practical policy to
accept the unitary-victim argument that Medina may be urging.
Absent compelling authority, we reject the argument.
Medina next says that the same deposit and transfer has
been charged as two separate offenses in two counts, making
the indictment multiplicitous. This argument rests on the
fact that in part of count I the government mentioned the
transfer of $350,000 out of Medina's account. The same
transfer, including a reference to the original taking by
fraud, is the heart of count II of the indictment. Although
multiplicity is forbidden by double jeopardy principles, the
use of the same evidence or conduct in relation to two
different counts does not itself establish multiplicity.
Even "where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one is whether each provision requires [as an element]
proof of a fact which the other does not." United States v.
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Blockburger, 284 U.S. 299, 304 (1932). Here, section 1344
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required proof that a scheme had been executed against a
federally insured bank; section 2314 required proof of
interstate or foreign transportation of stolen property.
Each provision thus requires proof that the other does not.
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Medina's last argument is that the evidence simply did
not permit a rational jury to find him guilty on either count
and, alternatively, that the district court should at least
have ordered a new trial. The denial of a motion to direct
an acquittal is reviewed de novo, United States v. Gonzalez-
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Torres, 980 F.2d 788, 790 (1st Cir. 1992), and the trial
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court's denial of a new trial request is reviewed for abuse
of discretion. United States v. Nickens, 955 F.2d 112, 116
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(1st Cir.), cert. denied, 113 S. Ct. 108 (1992). We need not
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differentiate sharply, because in this case the jury's
verdict was neither irrational nor against the weight of the
evidence.
Medina's conduct was largely undisputed, and the
critical issues involved his knowledge and state of mind.
Absent a confession of guilt, the government's case could not
be air-tight. Yet there was no proof that Medina had ever
applied to a Spanish ministry for a grant of $365,000 or
expected such a check from Banco Central. His persistence
and haste in getting the money deposited into his account and
then out of the country were at least suspicious. The jury
must certainly have thought that Medina's story of an
innocent mistake was fragmented, improbable in a number of
respects, and ultimately did not hang together.
It is beside the point that the bank's customer service
representative misread the check; there is no indication that
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she could read Spanish, as Medina could. She also had no way
of knowing whether Medina might or might not be expecting a
check in this amount. Medina's brief states that his own
expert witness thought that the value of the check was
$365,000. In fact, the expert, whose testimony would not in
any event be binding on the jury, testified to the value of
the check, "as reflected in that box," i.e., the box that
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contained the mistaken arabic numerals "$365,ooo."
Finally, in an attempt to bolster his lack of evidence
claim, Medina's brief singles out a variety of comments and
arguments made by the prosecutor that Medina says misled the
jury. It appears that none of the statements was the subject
of objection at trial; while one or two might have been
subject to adjustment, none is especially troubling or even
remotely close to plain error. The prosecutor's remarks
provide no reason to hesitate in our appraisal of the
evidence.
Affirmed.
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