USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1139
UNITED STATES OF AMERICA,
Appellee,
v.
WILLIAM H. WALSH,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Keeton,* District Judge.
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James L. Sultan with whom Rankin & Sultan was on briefs for
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appellant.
Peter A. Mullin, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, and Pamela Merchant, New
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England Bank Fraud Task Force, Criminal Division, Department of
Justice, were on brief for the United States.
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January 23, 1996
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*Of the District of Massachusetts, sitting by designation.
BOUDIN, Circuit Judge. William Walsh was charged with
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various offenses growing out of a bank fraud scheme and
convicted on a majority of the counts. His present appeal is
primarily directed at procedural issues. We affirm.
I.
Walsh was indicted in 1992, together with four co-
defendants, and charged with conspiracy, twenty-nine counts
of bank fraud, and twenty-nine counts of false statements.
18 U.S.C. 2, 371, 1344, 1014. The substance of the
indictment was that Walsh carried out a scheme to defraud
Dime Savings Bank of New York ("Dime-NY"). He did so,
according to the charge, by directing his employees to obtain
29 specific loans through the use of deceptions so that
customers could purchase condominiums from Walsh and his
associates.
Walsh's trial occurred in February and March 1994.
Taken in the light most favorable to the verdict, United
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States v. Tuesta-Toro, 29 F.3d 771, 773 (1st Cir. 1994),
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cert. denied, 115 S. Ct. 947 (1995), the evidence permitted
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the jury to find the following. Walsh was a Cambridge,
Massachusetts, city councillor, lawyer, and real estate
developer. With a group of investors, he purchased apartment
buildings or complexes, converted the property into
condominiums, and sold the condominiums to customers, using
the unit sales to pay off the acquisition financing.
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Walsh ordinarily served as a trustee of the realty trust
that acquired the building, acted as legal counsel to the
trust, and usually served as the trust's representative in
the sale of the individual condominium units. During 1986,
sales of units in one of the projects started to fall behind
schedule and the trust began to have difficulty repaying its
acquisition loan. Walsh then discovered that Dime-NY had
recently created a wholly owned subsidiary, called Dime Real
Estate Services of Massachusetts, Inc. ("Dime-MA"), to
originate mortgage loans in Massachusetts. Dime-MA made
mortgage loans available rapidly--with no verification of
income, assets or down payments--but the loans required a
twenty percent down payment and secondary financing was
prohibited.
On this failing project, and then on two others, Walsh
directed his employees to arrange loans from Dime-MA for unit
purchasers and to falsify documents submitted to Dime-MA to
conceal the existence of secondary financing (and in some
cases third mortgages as well). In the three projects,
approximately half the customers defaulted and Dime-MA
incurred substantial losses. An investigation ensued,
followed by the indictment already described. Three of the
four co-defendants pleaded guilty; charges against the fourth
co-defendant were abandoned.
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Jury deliberations began on March 22, 1994. Following
the dismissal of a juror during deliberations, the jury (now
reduced to 11 members) continued deliberations, and on March
28, 1994, it returned 41 guilty and 18 not guilty verdicts.
Walsh was thereafter sentenced and now appeals. Most of the
claims of error concern the dismissal of the juror and its
aftermath, so we begin with that subject, starting with a
description of the pertinent events.
II.
On March 23, 1994, a note was received from the jury
indicating that one of the jurors wished to meet with the
judge, adding: "He has several questions and we cannot
relate to him in any way, shape, or form." The judge
declined to meet with an individual juror, but the following
day a court security officer reported that the foreperson was
concerned that one of the jurors had become "mentally
unstable." After consulting with counsel, the trial judge
interviewed the foreperson, and learned of constant
interruptions by "juror X", irrelevant statements by juror X
about events in his past life, and juror X's efforts to show
other jurors written materials consisting of a campaign
brochure and a newspaper clipping from his prior efforts to
win elective office.
After consulting further with counsel, the trial judge
interviewed juror X; as in the judge's interview with the
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foreperson, counsel and Walsh himself were present. The
judge cautioned juror X not to indicate his views on the
merits of the case. The interview, which began by focusing
on the material that the juror brought into the jury room,
involved disjointed and rambling comments by juror X. Juror
X also mentioned a self-described "nervous problem" and his
general discharge from the military. Some of the questioning
was based on questions that had been suggested by the
government and defense counsel.
Finally, out of the presence of juror X, the court asked
both sides for their position as to whether juror X should be
excused, and defense counsel after consultation with Walsh
indicated that he "would not object if the Court decided to
keep him or eliminate him. . . . [Either way] we would move
for a mistrial." The government said that it thought the
juror was disabled and should be excused. The trial judge
then excused the juror, agreeing that he was "not a person
capable of engaging in rational discussions based upon the
evidence."
Thereafter, the remaining jurors were sent home for the
rest of the day. The following morning Walsh filed a motion
for mistrial, arguing that the ability of the remaining
jurors to be impartial and open-minded had been undermined by
their exposure to juror X. No one at this point knew or
claimed to know how juror X had proposed to vote. The court
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agreed to question the remaining jurors and solicited and
received proposed questions from counsel.
Then the district judge, in the presence of counsel and
the defendant, questioned each of the 11 jurors individually
as to whether juror X had discussed the merits prior to the
jury's deliberations, had brought material into the jury
room, and had discussed his own personal experiences--and
whether the juror being questioned could, to the extent that
these events had occurred, put them aside and decide the case
impartially based on the evidence presented. Eight of the
jurors had been exposed to a campaign brochure and an old
newspaper article about one of juror X's campaigns; all of
the jurors had heard juror X discuss his personal
experiences; and three jurors had heard comments from juror X
about the merits of the case prior to the start of
deliberations.
Each juror affirmed his or her ability to put aside the
campaign material, the personal experiences of juror X, and
any comments made by him before deliberations began. Defense
counsel challenged three jurors who had heard comments by
juror X before deliberations began, the substance of the
comments not being revealed. With respect to each of the
three jurors, the trial judge made findings that the juror
was credible in saying that the pre-deliberation comments of
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juror X would have no effect. The trial judge then denied a
mistrial.
At the request of defense counsel, the trial judge told
the jury that it could begin its deliberations from the
beginning if it wished; the court also told the jury not to
discount a position taken "just because [juror X] took it."
The jurors then deliberated for the rest of the day.
Returning after a weekend break, they continued deliberations
and asked for reinstruction on substantive issues. Late in
the same day, they returned the 41 guilty and 18 not guilty
verdicts.
1. Walsh's first claim of error is that the trial
court erred in dismissing juror X. Walsh argues that there
was no psychological testing or psychiatric examination of
juror X, and the evidence did not show that he was either
mentally incompetent or otherwise incapable of engaging in
rational decision-making. In substance, Walsh says that
juror X was simply an unpopular, perhaps irritating
participant who probably sided with the defendant and whose
removal led to a prompt agreement to convict.
Walsh did not make a timely objection on this ground.
At the time of the dismissal, his counsel did not object to
excusing juror X, or argue for psychiatric testing, or
suggest that juror X could be dismissed only if a higher
degree of irrationality were shown. Instead, Walsh made
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clear his intention to move for a mistrial; and when the
mistrial motion was filed, the ground--inconsistent with the
contention now made--was that juror X was someone whose
"psychiatric problems" had been "clearly demonstrated" and
whose "negative influence" on other jurors was apparent.
Although, for these reasons, the objection now made is
reviewable only for plain error, the dismissal of juror X was
not error at all. Federal Rule of Criminal Procedure 23(b)
permits the judge to excuse a juror "for just cause" during
deliberations and to allow the remaining 11 jurors to reach a
verdict. The trial judge has substantial discretion in
exercising this responsibility and may remove the juror when
"convinced that the juror's abilities to perform his duties
[have] become impaired." United States v. Huntress, 956 F.2d
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1309, 1312 (5th Cir. 1992), cert. denied, 113 S. Ct. 2330
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(1993). Similarly, in United States v. Molinares Charris,
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822 F.2d 1213, 1223 (1st Cir. 1987), we permitted a judge to
excuse a juror who had taken a tranquilizer pill and appeared
somewhat unstable.
The trial judge carefully and repeatedly consulted with
counsel in determining the course of the inquiry and the
questions to be put to juror X. See United States v.
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Chorney, 63 F.3d 78, 81 (1st Cir. 1995). The transcript of
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juror X's voir dire, which need not be repeated in detail,
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gave the trial judge ample basis for concluding that the
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juror was not able to perform his duties. Whether or not
juror X was incompetent as a juror under 28 U.S.C.
1865(b)(4), "just cause" existed under Rule 23(b) for his
removal in this case. See United States v. Reese, 33 F.3d
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166, 172-73 (2d Cir. 1994), cert. denied, 115 S. Ct. 756
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(1995) (just cause not limited to incompetence).
There is no evidence that the trial judge knew that
juror X favored acquittal, if indeed juror X did. Nor did
defense counsel make any such suggestion when he acquiesced
in the dismissal of juror X. If anything, Walsh's mistrial
motion suggested that juror X might be hostile to Walsh
because Walsh was a lawyer and politician. Dismissal of a
known holdout juror raises an entirely different question.
Compare United States v. Hernandez, 862 F.2d 17 (2d Cir.
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1988), cert. denied, 489 U.S. 1032 (1989).
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2. Walsh's second objection is that even if juror X
was properly removed, the court erred in permitting the 11
remaining jurors to return a verdict. Walsh's broadest
grounds for this objection are legal: he claims that the
Constitution does not permit a jury with only 11 jurors to
decide a federal criminal case over the objection of a
defendant. He also asserts that Rule 23(b)--which does
permit this course--could not be lawfully enacted through the
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Rules Enabling Act procedures. 18 U.S.C. 3771, 3772
(1982).1
Neither of these objections was made at the time that
the district court was determining whether to permit the 11
remaining jurors to deliberate and, accordingly, both
objections are subject to review only for plain error. It is
true that both issues were raised in the trial court after
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the verdict by a post-verdict motion for dismissal or a new
trial. But the usual rule is that an objection must be made
known at the time that the court is making its decision to
act, e.g., United States v. Gonzalez-Torres, 980 F.2d 788,
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791 (1st Cir. 1992), and here the proper time to raise the
objections was when the court was deciding whether to
continue with 11 jurors. In this case, in any event, the
standard of review does not matter as to the constitutional
claim because in Williams v. Florida, 399 U.S. 78, 103
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(1970), the Supreme Court said that the 12-member jury was
not required by the Constitution and that Congress and the
states could select a different number. We think that
Williams effectively answers the claim that 11 jurors are too
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few. A number of circuits have held that a jury of 11 can
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1The separate provisions enabling the Supreme Court to
prescribe rules of criminal procedure were later repealed and
consolidated with the Rules Enabling Act provisions governing
the enactment of rules of civil procedure. Judicial
Improvements and Access to Justice Act, Pub. L. No. 100-702,
401-04, 102 Stat. 4642, 4648-52 (1988); 28 U.S.C. 2072-
74.
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constitutionally decide a federal criminal case, without
consent of the parties, where a juror has been removed for
cause. E.g., United States v. Ahmad, 974 F.2d 1163, 1164
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(9th Cir. 1992).
Williams directly rejects the argument that the
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historical number of jurors is binding--how many would be too
few is not an issue in this case--and we think that this
conclusion is not altered by Walsh's attempt to rephrase the
challenge as a concern for a "unanimous" jury. The Supreme
Court has not said whether a less-than-unanimous verdict is
acceptable. Compare Apodaca v. Oregon, 406 U.S. 404 (1972).
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But whether it is or not, we think that rendition of a
verdict agreed to by all jurors, after one juror with unknown
views has been dismissed for cause, is a unanimous verdict.
The gist of Walsh's claim under the Rules Enabling Act
is that Congress might be able to alter the requisite number
from 12 to 11 but that Rule 23(b) was adopted--under the
procedures specified by the Rules Enabling Act--by judicial
action coupled with Congress' failure to veto the change.
Inaction, says Walsh, is not enough for a fundamental change.
The Second Circuit has concluded, however, that this change
can be accomplished through the enabling procedures. United
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States v. Stratton, 779 F.2d 820, 831 (2d Cir. 1985), cert.
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denied, 476 U.S. 1162 (1986).
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Rules that are "strictly procedural" can be adopted
through the Rules Enabling Act without an affirmative vote by
Congress, Burlington Northern Railroad Company v. Woods, 480
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U.S. 1, 5 (1987), and this extends to rules that fall "within
the uncertain area between substance and procedure, [but] are
rationally capable of classification as either." Id.
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(quoting Hanna v. Plumer, 380 U.S. 460, 472 (1965)). In view
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of the defendant's failure to make a timely objection, we
need not decide this claim outright but are satisfied that
the use of the 11-member jury did not constitute "clear
error" based on the Rules Enabling Act claim.2
3. Walsh did make in timely fashion an objection that
this jury was not capable after juror X's discharge of
rendering a fair and impartial verdict. When this issue was
raised by Walsh immediately after the discharge, the district
court properly undertook "an adequate inquiry to determine
[what had happened and] . . . whether it was prejudicial."
United States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st
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Cir. 1993), cert. denied, 114 S. Ct. 1368 (1994). A trial
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judge enjoys discretion to determine the scope of the inquiry
in deciding whether the jury has been tainted. United States
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2Since the issues were first raised in a motion for a
new trial and rejected on the merits, one could argue that
the customary abuse of discretion standard is irrelevant
because the issues are strictly legal. But we do not see why
rejection of an untimely legal claim should be reviewed for
anything more than plain error. See Gonzalez-Torres, 980
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F.2d at 791.
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v. Boylan, 898 F.2d 230, 258 (1st Cir.), cert. denied, 498
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U.S. 849 (1990).
As already noted, the district court judge separately
examined each of the jurors, asking his own questions as well
as various questions suggested by counsel. In each instance,
the judge received a forthright declaration that the juror
was not going to be affected by the personal comments made by
juror X, by materials he had brought into the jury room, or--
in the case of three jurors--by the comments that juror X
made about the merits before deliberations began. The
judgment of the trial judge, who can appraise the jurors face
to face, deserves great weight.
Although Walsh now complains that the district judge
limited his own questioning unduly--in an effort to avoid
learning how the jurors were leaning--Walsh did not press for
more detailed inquiry at the time. The trial judge treads a
delicate line in this kind of inquiry. Assuming arguendo
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that Walsh is right in saying that Fed. R. Evid. 606(b) does
not apply prior to the verdict, there are still obvious good
reasons for a trial judge to avoid learning how an individual
juror is leaning. United States v. Rengifo, 789 F.2d 975,
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985 (1st Cir. 1986).
Although Walsh now argues that there is a substantial
chance that the jurors were prejudiced by juror X, nothing in
the record makes this at all likely. In addition to the
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jurors' own denials, we note that the brochure had nothing
directly to do with the trial; there is no reason to believe
that a newspaper article brought in by a juror regarding his
prior political campaign contained anything material; and
judging by the voir dire of juror X, his personal experiences
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were also not germane to the trial.
Walsh now argues that juror X was hostile to lawyers and
politicians (Walsh was both) and that this view may have been
passed on to the other jurors. In fact, juror X's brochure
was more qualified, expressing (in a description of X's
"positions") objections to "the [unspecified] unethical
ethics practiced by certain members of the bar" and "machine
controlled politics and . . . [unspecified] dirty tricks."
The jurors said that they paid little attention to the
pamphlet. Further, it is Walsh who now takes the position
that juror X favored Walsh, which hardly suggests that juror
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X was denigrating Walsh.
Finally, Walsh now complains that by discharging juror X
the court led the jury to think that juror X's views should
be disregarded. In fact, the judge expressly cautioned the
jury not to discount views simply because they were earlier
expressed by juror X. Walsh also says that the jury should
have been directed to start its deliberations anew. The
judge told the jury that it was entitled to start anew. We
think that this was all that was either useful or necessary.
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At the time, Walsh raised no objection to the instructions
given. 4. Walsh's last claim of error based on the juror
X episode relates to a post-trial event. According to an
affidavit from Walsh's secretary, she received a call a week
or so after the verdict from someone identifying himself as
juror X who said he had been on the defendant's side, that
the defendant had been "railroaded," and that she (the
secretary) "would not believe what went on in the jury room."
About a month later, Walsh submitted this affidavit in
support of a request that the jury and juror X be subject to
further voir dire or authorized inquiry by counsel.
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The district court declined to hold such a post-verdict
inquiry or to authorize discussions with the jurors or to
grant a new trial based on the affidavit. Walsh now argues
that because the parties were barred from unsupervised
contact with the jurors after the verdict, United States v.
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Kepreos, 759 F.2d 961, 967 (1st Cir.), cert. denied, 474 U.S.
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901 (1985), the trial court had an obligation to conduct an
investigation itself. The abuse of discretion standard
governs this claim, see Boylan, 898 F.2d at 258, and we think
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that there was no such abuse in this case.
The restrictions on post-verdict contact and the
limitations on juror testimony about deliberations, Fed. R.
Evid. 606(b), exist to protect important interests in the
finality of the verdict and the privacy of the deliberations.
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See Tanner v. United States, 483 U.S. 107, 120 (1987). The
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affidavit contains only general rhetoric from juror X and no
specific allegations of misconduct. Given what the district
court already knew about juror X, the telephone call--
assuming (as we do) that it came from juror X--did not
require any further inquiry.
III.
Walsh's brief raises two further issues, both unrelated
to juror X. The first claim relates to the government's
admitted failure to turn over certain documents in a timely
fashion. The documents related to Frances Schwartz, a senior
attorney working for Walsh who was assigned to the three
development projects involved in this case. Schwartz was
indicted with Walsh and was one of the co-defendants who pled
guilty to the conspiracy count and testified against Walsh at
trial.
On direct examination, Schwartz gave damaging testimony
against Walsh. In addition to identifying a number of
documents and describing the operations of Walsh's office,
Schwartz testified to discussions and correspondence with
Walsh that--as recounted and interpreted by Schwartz--
confirmed Walsh's knowing participation in and direction of
the fraud. Schwartz' testimony was thus quite damaging,
although another co-defendant who pled guilty also testified
that Walsh knowingly directed the concealment of the
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secondary financing. Early in her cross-examination,
Schwartz mentioned that she had "daytimers" or calendars that
she had used to refresh her recollection. Later, on re-
cross, she mentioned that she had allowed the government to
review the daytimers and make copies of them. The defense
immediately objected that it had never received the
daytimers. The government said that these daytimers should
have been disclosed earlier but had been overlooked when
other materials from Schwartz had been made available to
Walsh's counsel. Copies of the daytimers were provided to
the defendant later that day.
Following a timely motion by Walsh to dismiss the case
because of this delay, the trial court denied the motion,
finding that Walsh's strategy would not have been
substantially different if the daytimers had been disclosed
earlier. The court instructed the jury that the government
had failed in its discovery obligation, and it allowed Walsh
to recall Schwartz to continue her examination, using the
daytimers to try to establish inconsistencies between
Schwartz' prior testimony and the daytimers. Walsh now
complains that this was inadequate.
This court previously considered the issue of delayed
disclosure of impeachment material required to be disclosed
under the Jencks Act. United States v. Arboleda, 929 F.2d
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858, 862-65 (1st Cir. 1991). We said that the critical
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question was whether the delay had "prevented [the
material's] effective use by the defense," id. at 862, and
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that some showing of prejudice was required beyond mere
assertions that the defendant would have conducted cross-
examination differently. Id. at 864. Cf. United States v.
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Lanoue, No. 95-1140, slip op. at 34 (1st Cir. 1995). Delayed
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disclosure of Brady material is subject to the same rule.
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See United States v. Osorio, 929 F.2d 753, 758 (1st Cir.
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1991).
On this appeal, Walsh argues that if his trial counsel
had received the daytimers earlier, he would have focused at
the outset on the alleged inconsistencies between Schwartz'
testimony and the daytimers instead of attempting to cast
doubt on the reliability of her memory. In fact, the initial
cross-examination did not focus on Schwartz' memory but
rather on her veracity, which the defense counsel sought to
undermine by emphasizing her prior drug use and her desire
for a lenient sentence. And when Schwartz was subject to
further cross after the daytimers had been produced, Walsh's
counsel paid minimal attention to the supposed
inconsistencies.
Walsh says that when Schwartz was recalled for further
cross after the daytimers had been produced, it was too late
to cross-examine effectively on inconsistencies because she
had been "well prepared by the government to explain away any
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inconsistencies." As it happens, there is no evidence of any
such discussion after the daytimers first became an issue.
As to preparation prior to the original direct examination,
the government was entitled to prepare the witness, and the
risk of facing an initially prepared witness would have
existed whether or not the daytimers had been produced.
Walsh's final claim of error, a claim raised in the
district court and rejected there, is that the evidence
failed to show that the victim was a federally insured
financial institution. At the time of the fraudulent
filings, 18 U.S.C. 1344 aimed at schemes to defraud "a
federally chartered or insured financial institution" or to
obtain property owned by, or under the custody or control of
such an institution through falsehoods. See United States v.
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Brandon, 17 F.3d 409, 424 n.11 (1st Cir.), cert. denied, 115
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S. Ct. 81 (1994). Walsh's argument turns on the fact that
Dime-NY was a federally insured bank, but Dime-MA--the
immediate maker of the loans--was not. The government quotes
to us in response a statement from Brandon, 17 F.3d at 426,
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that
the government does not have to show the alleged
scheme was directed solely toward a particular
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institution; it is sufficient to show that
defendant knowingly executed a fraudulent scheme
that exposed a federally insured bank to a risk of
loss.
That language, however, was directed to the scienter
requirement, and not to the nexus claim made here. As it
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happens, the Brandon court also rejected a nexus argument
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somewhat similar to Walsh's argument here but on different
facts. The intermediaries with whom defendants in Brandon
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dealt were mortgage brokers who forwarded the fraudulent
applications to the federally insured bank which individually
approved the loans and forwarded the money back to the
mortgage brokers. See id. at 423, 426-27 & n.16.
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While the nexus in Brandon was different--one can argue
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about whether it was closer or more remote--Brandon does
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confirm that a defendant can violate section 1344 by
submitting the dishonest loan application to an entity which
is not itself a federally insured institution. Here, Dime-MA
was practically an alter ego of Dime-NY: it was a wholly
owned subsidiary of Dime-NY; all of the subsidiary's
directors and principal officers were officers of the parent;
and Dime-MA was subject to examination by the same federal
bank examiners as Dime-NY and reported its result on a
consolidated basis.
Further, focusing on the loan process, the connection
between the defendant and the federally insured victim is
even tighter. Dime-NY provided all of the funds for Dime-MA
both for its operating expenses and to fund mortgage
closings. Dime-NY determined what loan products should be
offered and, on the closing of a loan by Dime-MA, the
mortgage was immediately assigned to Dime-NY, which then
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serviced the loan. For most practical purposes, and
certainly for the purposes underlying section 1344, the
mortgage fraud perpetrated against Dime-MA was effectively a
fraud against Dime-NY.
We agree that there must be some outer limits to section
1344. For example, ruinous fraud directed against a major
bank customer, but unrelated to a customer's deposits in or
loans from the bank, might ultimately harm the bank itself,
if only through loss of a valued customer. But here, as in
Brandon, "this case presents a situation of direct harm to [a
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federally insured bank] resulting from a scheme specifically
designed to fraudulently avoid the requirements of that
federally insured bank in order to obtain funds originating
directly from [that bank]." 17 F.3d at 427 n.16. As in
Brandon, we confine our affirmance to the present facts and
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decline to contrive general rules to govern myriad
variations.
Affirmed.
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