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and
Mahon
_____
_________________
Timothy Q. Feeley, Assistant United States Attorney, with w
__________________
Donald K. Stern, United States Attorney, was on brief for the Uni
_______________
States.
____________________
October 21, 1994
____________________
On September
jury indicted
Antonio Medina
count of bank
5, 1991, a
grand
with one
transportation
obtained funds
under 18
events
described
in
U.S.C.
the
indictment was
deposited
knowingly
received
$365 check
2314.
credit
in
his
of $365,000
Bank
to
of
The
gist of
the
that
Medina
had
Boston
account,
as $365,000, ultimately
his
account,
and then
to
that pre-trial
November 1, 1991.
motions by the
defense be
repeatedly delayed,
January
4, 1993.
following a
filed by
In
change of
largely at
his own
the meantime,
counsel by
on November
Medina,
24, 1992,
his new
counsel
it was
prosecutor
that the
being
made in
restitution to the
case be
pursued in
1987
not to
breach of
a promise
prosecute
bank of $200,000.
the ground
if Medina
by the
made
-2-2-
the motion
to file out of
time.
On December
(with exceptions
The
motions
the interests
assertions made
in
support of
the motion
to dismiss
were
light most
January 1993.
favorable to the
The
evidence, taken
government, see
___
United
______
In
in
Medina
Boston
then
known
as
the
Eye
Research
degrees in
electrical
engineering
from
Massachusetts
degree in
Institute
of
Technology.
On November
account in
most of
that branch of
his banking.
Banco Central
Spain,
3, 1986,
and
Medina deposited
the Bank
made
in his
of Boston where
he did
of Spain, dated
was
a check
payable
-3-3-
Medina.
at Toledo,
The
written
designation
of the
amount
Trescientos Sesenta
hundred
was, in
Spanish, "Dolares
Cinco," which
and sixty-five
translates
U.S. dollars."
There
as
USA,
"three
was also
an
side of
the check:
"USD
365,ooo."
The words
Central's
own
checking account
at
the
Bank of
Boston.
When
Medina
deposited
the
check in
his
account
on
the
Two
branch
representative,
Medina's checking
from
the
$3,000.
requested
Popielski,
account to an
November 3
deposit,
5, Medina returned
a
to
customer
wire
$350,000
account in England.
Medina's
balance was
she needed to
service
from
Apart
about
check
day.
that
to bring
her if he intended
to redeposit
it.
The following day, November
check
and
Popielski told
Medina
that the
check
had been
-4-4-
him in
the amount
of $365,000,
bank and
signed a
transfer of $350,000
Bank in
and Medina
redeposited the
to an
order, directing
account in his
Cambridge, England.
Later
returned to
name at
the
Lloyd's
funds
early December
1986,
interviewed by
the
FBI in
for
that the
a
research grant
Research Institute.
He
said
for
that he
his
from a
work
Spanish
at the
had purchased
Eye
about
$150,000 worth
where
some
of equipment in
of the
Spain where it
research was
to
remained and
be conducted.
Medina
also submitted
within
the
proposed funding
trial that
the FBI
of
document
Health
which
of $282,286.
There was
and that, if it
a summary
National Institutes
to
evidence at
Research Institute
-5-5-
some evidence,
had in fact
trial
repeatedly.
it
that
the
bank
developed
the check,
had redeposited
had
stumbled
and on November
the check, Banco
6, the
day
Central had
______
wired
Medina
debited
amount of the
Banco
on November
Central's
account,
deposit.
When
$365 was
but Medina
was
An interoffice adjustment
25 when
most
of the
money
had long
since
been
transferred to England.
Although Medina
was
innocent misunderstanding.
present
an expert witness
Spanish
accounting
between
American and
punctuation
of
who was
who gave
Spanish
familiar with
Spain and
on the
differences
Spanish practices
in the
writing and
arabic
words
Medina did
testimony
numbers
position at trial
on
the
on
large
checks.
The
which
indisputedly
represented its amount as $365, and had known that he was not
entitled to $365,000.
-6-6-
on both
his request
supposed
for an
evidentiary hearing on
breach of
promise
not
to
the government's
prosecute.
In
breach of
the alleged
promise not
to prosecute.
The
On
September 30,
imprisonment
and
restitution
required
that
Medina
pay
fines
or
breached
its
not
to
that the
prosecute
if
pre-trial
submitted
motion
was
end of the
refusal
to
matter.
grant
together
late,
his
motion to
the
because no
with
should be
late,
attacks
the
see
no reason
to
choose
between the
alternative
-7-7-
Where
motion to be
abuse of
filed out of
discretion.
F.2d 17, 21
rested solely
refused
the district
to
court refuses to
If
lateness of
entertain a
court's
on appeal
is
Roberts, 978
_______
post-trial
precautionary
new
replicate
allow a
comment
on
of the
and
same
merits in
advised Medina's
that
bank in the
amount of $200,000.
[Medina]
affidavit was
making the
also
the basis
same request
for a
for the
post-trial
hearing on
the same
ground.
This affidavit
accepted
does not
bank were in
ever formally
purported agreement.
Our
-8-8-
of Boston recovered
Medina
also
made
first noted by
no
effort,
as
far
another
as we
can
court.
Evidentiary
is no likely
United States v.
_____________
prospect
McAndrews, 12
_________
The
was based on
worth comment.
the government.
motion
to strike
question was
Medina's
prior
one
government pointed
submission that
brought after
_____
untimeliness aside,
the
The
Medina had
no
the lawsuit
been indicted.
and provided
out in
basis
in
Its
added little
independent
to
for an
evidentiary hearing.
Several
We
of Medina's
merits arguments
are significant.
start with those that relate only to bank fraud which was
the offense
stood
charged in
been twice
count I
of the
indictment.
As it
in pertinent part
read as
follows:
-9-9-
attempts to execute,
or
as set
forth in
the
1344(a).
Count
of
the
indictment charged
that
executed or attempted to
federally
insured
chartered
or
bank
and
___
to
Medina
had
defraud a
obtain
its
Consistent
with the statutory language, the district judge told the jury
that it
to defraud or
__
means of false
or fraudulent representations.
Medina's
(a)(2), two
that here,
first
or
objection
is
that
more misrepresentations
under
are
required1
and
subsection
The government
scheme to
____________________
1This issue was left open in United States v. Lilly, 983
_____________
_____
F.2d 300, 305 n.10 (1st Cir. 1992), and we have no occasion
to decide it here.
-10-10-
(a)(1) so that
misrepresentations
adequately
proved under
need
to
it does not
be
multiple
subsection (a)(2).
But
matter
or
were
here, the
the jury
count
I.
as an
Thus,
alternative basis
at
least in
for convicting
theory, a
problem
under
might be
fact,
we
think
that
the government's
and the evidence
required.
Although
to be in the amount of
the
generic
permitted
the jury
true amount
that "representations"
the indictment
in
indictment
also
said
check he represented
$365.00," we
that
do not
see
be
why this
for
the
adequacy
misrepresentations could
first deposit slip
of
the
easily have
in
redeposited on
been found.
evidence,
two
Medina's
the amount of
$365.
When
submitted a deposit
-11-11-
slip in
check
actually for
$365,000.
Instead
he says
that
show that
he (Medina) filled
out the
first
one.
Ample evidence
the
him
transaction
slip.
evidence
at
the
included
teller's
the amount of
surveillance
window
making
on the bank
photographs
a
deposit
of his deposit
a surveillance
it
is
photograph of Medina at
irrelevant that
Popielski
wrote the
amount
on the
erred
deposit of a
that
"[a]
in
refusing to
is not
therefore cannot be
requested
States,
______
instruct
jury
were
that "the
not] a misrepresentation"
factual
assertion
characterized as true or
statements
458 U.S.
the
drawn
279 (1982),
where the
at all
false."
from Williams
________
and
and
These
v.
United
______
Court said
that a
check was merely an order to pay funds and did not constitute
an implied representation that the one who made and deposited
-12-12-
it
drawn.2
The
district court
the jury
in
this
We believe
sufficient
to
cover
that
the
check.
relying on any
funds
Rather,
on
the
deposit
government
jury misunderstood
no chance
That
a very
admittedly not
any scheme to
Banco Central,
claims without
was induced
covered by
misrepresentations to
It is not clear
whether Bank
____________________
2Williams was a prosecution under a false statements
________
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.
-13-13-
for
the
latter's
mistake
in
depicting
arabic
does not alter the fact that Bank of Boston was the immediate
victim of the fraud.
Finally, Medina makes the
and
others
(but
that
the
1989).
If so,
convicted of a crime
believing
that
he
two subsections
not all)
section
identify
v. Bonnett, 877
_______
it follows
separate crimes.
that Medina
(10th
could not
be
agree that
This same
problem
crime
is
sometimes
presented
where a
single
is
The government
cites
us to
guilty
a "general
verdict
on an
required but
a jury
charging
returns a
[in one
count]
____________________
3Compare United States v. Gipson, 553 F.2d 453 (5th Cir.
_______ _____________
______
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,
_____________
Criminal Procedure
23.7 (1984).
__________________
-14-14-
several acts in
evidence
charged."
(1st
verdict stands if
to any one
the
of the acts
See also
________
But it is
one
to
U.S. 837
any
one
of
several
acts
charged
in
the
Murray
______
and
Turner to
______
foreclose
any
inquiry
into the
Medina would
instruction
that
either section
both).
been entitled
the jury
had
see no reason
on request
to an
agree unanimously
that
Thus, we
not have
to
separate crimes
is told
that it
must
be unanimous
on each
count of
conviction.
subsections
in
wishing
to be
a single
count,
charged with
and
Medina, probably
three counts
rather than
risk
of
jury
confusion cannot
be
not
answered
two,
Thus,
here
by
-15-15-
The government
argues that
defraud
obtain monies
"or" a
scheme to
in this
scheme to
by means
of false
be unanimous.
But these
instructions do
what
the
jury
would
have
understood,
not
finding
to defraud
That is perhaps
but
it
is
not
inevitable.
Still, the defense did not
instruction
on this issue, so
plain error.
the
reversal can be
jury
1992).
could
have
We see no
divided
Although
practical likelihood
along
the
now
suggested
by Medina.
about two
as to
fraud
and misrepresentation
in theory we
lines
may be talking
count I.
Indeed,
either had
or
neither.
There was
no realistic possibility
of a split
-16-16-
If
quite likely
representations.
because
no actual
verdict.
error
at all.
conduct
On
Probably he
threat
There was
existed here
of a
based on
to do so
non-unanimous
arguably no
same conduct
to defraud or a scheme
branches of subsection
(a) or the
and transferred in
$350,000.00,
more or
less, knowing
in the amount
the same
to have
of
been
The statute in
or taken by fraud."
18 U.S.C.
2314.
Medina
argues on
appeal
that under
been stolen
this statute
"before being
the
transported."
cert. denied,
____________
says
blandly but
without
(1981).
Here, Medina's
explanation, "no
brief
money had
been
-17-17-
stolen
or taken
Possibly
by
fraud at
what Medina
of
the
the
intends to
time of
argue
the
transfer."
is that
the bank's
wrongful
credit
to
Medina's
November 7 because
at that time no
out by the
bank.
merely on
account
on
been paid
claiming
that when transferred the money had not yet been stolen.
___
We see no reason why the fraudulent
more than
the
the
misrepresentations,
him, and
$365,000
was
scienter.
available
England.
before
the availability
the requisite
November
True, the
the
November
transfer,
Popielski
to Medina
had
it
withdrawal
more
was just as
on
wire transfer to
have nullified
been
money to
testified that
for
bank could
of the
the deposit
alert; but
from
much available to
that
him.
the
Bank
He starts
of
Boston
with a
could
$365.
The
of
straightforward
not
second deposit on
check was
have
been
been taken
of Boston prior
amount of the
a defendant,
-18-18-
drugs or
stolen property if
v. Rose,
____
denied,
______
442 U.S.
change in
the
590 F.2d
232, 235
E.g. United
____ ______
(7th Cir.
1978), cert.
_____
of
in fact a
Oviedo, 525
______
the
property
can
defeat
an
be
difficult
to
property by fraud, if
individual,
or
that the
statements
unrealistic
true
facts
somewhere
in
its
But
obtain
defendant's
the
were untrue.
It
the analogy
files.
There
is
is
no
on November 7 or to
Uniform Commercial
channels is, in some
everyone
Code, notice
to the bank
notice to
his
-19-19-
is
hard to
imagine any
reason
of practical
policy to
the indictment
fact that in
transfer
multiplicitous.
part of
of $350,000
transfer,
including a
out
multiplicity is
of the
same
count I the
reference to
on the
government mentioned
of Medina's
use
account.
The
the original
the
same
taking by
II of the indictment.
Although
conduct
in relation
to
two
the same
act or transaction
constitutes a
the test to
be
applied to determine
whether there
are two
required
proof that
federally
insured
interstate
or
offenses or
bank;
foreign
United States v.
_____________
304 (1932).
a scheme
had been
section
2314
transportation
element]
proof
a
of
stolen property.
Each provision thus requires proof that the other does not.
-20-20-
Medina's last
The
should at least
an acquittal is reviewed de
__
Torres,
______
(1st Cir.
980 F.2d
court's denial of a
788, 790
1992), and
the trial
for abuse
of discretion.
112, 116
We need not
differentiate
the
verdict
sharply,
because
in
this
case
jury's
evidence.
Medina's
critical
conduct
was
issues involved
largely
undisputed,
his knowledge
and
and state
the
of mind.
to a
expected such
Spanish ministry
a check from
for a
grant of
Banco Central.
had ever
$365,000 or
His persistence
and haste in getting the money deposited into his account and
then out of the country
must
certainly
innocent mistake
have
that
was fragmented,
Medina's
The
story
improbable in a
jury
of
an
number of
customer service
-21-21-
amount.
witness thought
$365,000.
that
the
value
expecting a
that his
of the
check
own
was
reflected in
value of
the box
that
out a variety of
evidence
comments and
objection
subject to
remotely
provide
at trial;
while one
or
two might
no
plain
reason to
evidence.
Affirmed.
________
error.
hesitate
troubling or even
The prosecutor's
in
our
have been
appraisal
remarks
of
the
-22-22-