United States v. Christi , 682 F.3d 138 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 09-1889
UNITED STATES OF AMERICA,
Appellee,
v.
LENARD CHRISTI,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter, Associate Justice,*
and Boudin, Circuit Judge.
David A.F. Lewis for appellant.
Randall E. Kromm, Assistant United States Attorney, with
whom Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
June 19, 2012
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. In this appeal from
convictions for bank fraud, wire fraud (as well as conspiracy to
commit these offenses), and money laundering, Lenard Christi claims
insufficiency of the evidence to show anything more than his mere
(innocent) presence at some events in the sequence of the
transactions charged, and abridgement of his Sixth Amendment right
to jury trial when the trial judge closed the courtroom doors
during jury instructions. We affirm.
In the course of a year and a half in 2000-2002, Christi
and a co-defendant, Robert Felleman, were associated in five
instances of depositing large checks (one for $15,000,000) in three
different bank accounts (the one involved here being in the name of
a defunct corporation), and then writing checks against the
resulting, ostensible account balances or requesting substantial
wire transfers from them. In none of the five was the check good.
In this instance, one for about $320,000 from an entity called
Allied Building Products was deposited by mail in the corporate
account, seemingly endorsed over to the moribund entity by Christi,
the apparent payee. Four days later, Christi and Felleman visited
a branch of the bank to arrange for a transfer to an account in
Taiwan of $220,000 from the balance stated after the deposit.
Felleman began a series of other withdrawals against the funds that
day, and on the next he and Christi went to the bank to withdraw a
further $20,000; four wire transfers were made from the supposed
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funds to payees in Nigeria, two of them arranged by Christi.
Subsequently the Allied Products check was dishonored as having
been altered and was returned unpaid; it had been written in the
amount of $268.96 and was not payable to Christi. Felleman and
Christi gave disparate accounts of the transaction and were
subsequently indicted for conspiracy to commit bank and wire fraud,
18 U.S.C. § 371, bank fraud, 18 U.S.C. § 1344, wire fraud, 18
U.S.C. § 1343, and money laundering, 18 U.S.C. § 1957, Christi
being charged both as a principal and as aiding and abetting
Felleman’s activities. Felleman negotiated guilty pleas, and
Christi was convicted.
The scope of the issue of evidentiary insufficiency,
raised by claiming entitlement to acquittal that could have been
requested under Federal Rule of Criminal Procedure 29 on the bank
and wire fraud and laundering charges, is subject to three
limitations, the first stemming from Christi’s failure to raise the
claim at trial. At the close of the Government’s evidence his
counsel did make a Rule 29 motion, but on the ground that the
description of the wire fraud was not sufficiently distinct from
the laundering charge to satisfy the requirement that the source of
laundered money be a separate criminal activity known to the
defendant. See United States v. Seward, 272 F.3d 831 (7th Cir.
2001). Here, however, he says nothing about this issue, but argues
instead that the evidence and its plausible implications fall short
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of supporting rational inferences of guilt beyond a reasonable
doubt. See United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009).
As a consequence, we review only for plain error, considering
whether submission of the three charges to the jury was erroneous,
plainly so, prejudicial, and compromising to the fairness and
integrity of the judicial proceeding. See United States v. Rivera-
Rivera, 555 F.3d 277, 285-86 (1st Cir. 2009).
The appeal is limited and simplified, secondly, by the
fact that Christi does not contest the commission of the offenses
by Felleman. It is therefore a given that the evidence shows that
he, at least, committed the two varieties of fraud and engaged in
the money laundering.
Finally, Christi is forced to show that the evidence
failed to support a finding that he committed the offenses even by
aiding and abetting Felleman in his crimes, for Christi was charged
as an accessory as well as a principal with respect to each of the
substantive offenses. That is, he must demonstrate that the
evidence would not support so much as an inference that he
“associated with [Felleman’s] venture, participated in it as
something he wished to bring about, and sought by his actions to
make it succeed.” See United States v. Colón-Muñoz, 192 F.3d 210,
223 (1st Cir. 1999). This he cannot do.
Christi argues that his status as innocent bystander is
a reasonable possibility owing to the facts that the endorsement on
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the Allied Products check was apparently not his signature, that
Felleman did most of the talking at the meeting to arrange the
$220,000 wire transfer, and that Felleman was the signatory on the
checks for smaller amounts drawn against the illegitimate deposit.
But there is too much inculpatory evidence to allow for any
conclusion, let alone a plain one, that it was unreasonable for the
jury to infer that he was taking part in an effort to bring the
fraudulent scheme to a successful end.
To begin with, of course, he could hardly claim with a
straight face that he just happened to be accompanying Felleman in
his bank appearances, in light of the evidence associating him with
four other efforts involving phony checks and claims from non-
existent funds. In fact, he described himself as Felleman’s
business associate and worked out of an office of the defunct
corporation, whose listed headquarters were apparently unpopulated
save for him (and presumably Felleman). On his visit to the bank
when Felleman dominated the discourse his own remarks contributed
to an atmosphere of good-natured affability, and his presence would
have preempted any question the bank official might have had about
the regularity of the endorsement of the Allied Products check to
the corporation. And while it is true that Felleman signed checks
drawn against the balance of the proceeds after the wire transfer
had been ordered, Christi actively arranged for at least two
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subsequent wires of funds from the ostensible balance in the
account.
If that were not enough, Christi nailed down the
Government’s case by lying about the circumstances of the
transaction in his inconsistent accounts afterwards. See United
States v. Polanco, 634 F.3d 39, 45 (1st Cir. 2011). When the
bank’s investigator asked about the apparently fraudulent series of
transactions, Christi did not deny knowledge of the deposit and
claimed that the funds supposedly represented by the check had come
from someone named Danlodi, to cover taxes due in connection with
a commercial development on the Caribbean Island of St. Kitts.
When the FBI first interviewed him, the ultimate source of the
funds had become a Nigerian lawyer, who had instructed that money
be wired to Taiwan. And when the same FBI agent interviewed him
again over three years later, the transaction that generated the
Allied check involved Keystone Oil, acting through a Dutch engineer
named Christian Eze.
In sum, a jury could reasonably find that Christi was
associated with Felleman in an effort to get money from a bank to
be wired to a foreign country for later disposition. The first
step was to cash a fraudulent check, replicating a series of
schemes too many in number to allow for doubt about Christi’s
knowledge of their fraudulent character. His presence and
sociability lent a note of regularity to the meeting at the bank to
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arrange disposition of the bulk of the Allied Products funds, which
he himself depleted further by lesser wire transfers. He admitted
his association with Felleman in a business conducted from a lonely
office in the name of a corporation that had disappeared, leaving
nothing behind but the name on a bank account receiving the
proceeds of fraud. When exposure came he responded with serial,
clumsy lies meant to put a coating of legitimacy on the criminal
activity. At the least, his actions amounted to association,
participation, and action aimed at the success of the scheme, and
thus to aiding and abetting Felleman’s fraud in getting and
disposing of the funds, if not to full principal involvement.
There was no error in the inferences of Christi’s guilt.
Christi’s second claim of error goes to limiting public
access to the courtroom during the better part of the jury
instructions, but we think he waived any such claim. The court
apparently began the charge with the courtroom doors open, but
interrupted the proceeding with a short break for some clerical
task. Before resuming, the judge notified spectators, who he
understood were waiting for the next case, that if they stayed they
would have to remain until the instructions were over, for he was
going to lock the door. Christi’s lawyer made no objection and
made none later when counsel were invited to raise any objection to
the charge. At the end of the afternoon and before any verdict,
when the jurors were about to leave for the night, the prosecutor
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approached the judge to mention the locked courtroom door and the
structural character of a defendant’s Sixth Amendment right to
public trial. He replied to a question from the judge by saying
the Government had not been prejudiced, and a moment later stated
twice that no one had been adversely affected by closing the door
for the balance of the instructions. He said that in his opinion
there was “no issue whatsoever” about it, but that he just wanted
a record on the matter. Christi’s lawyer was there throughout the
exchange but spoke not a word on the record, except to bring the
colloquy to a close by saying that she had to leave for a prior
commitment.
Even though his lawyer stood silent during the
substantive discussion of the public trial right and the
significance of stopping traffic in and out during the charge,
Christi now says his Sixth Amendment right was violated when the
doors were locked. If he had merely failed to object and the
court’s action had not otherwise been addressed, he could invoke
plain error review, see United States v. Scott, 564 F.3d 34, 37
(1st Cir. 2009), but the circumstances of defense counsel’s failure
to speak on the matter here shows that her silence passed beyond
inadvertence or passivity to the point of waiver. Although the
trial judge did not in so many words request an affirmative
declaration of position from defense counsel in response to the
Government’s statement for the record, the exchange between the
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court and the prosecutor placed the subject matter unmistakably on
the table, and the defense’s silence is reasonably understood only
as signifying agreement that there was nothing objectionable. The
court said to the two lawyers, “the issue . . . has to be raised by
someone who is adversely affected by it.” This statement was the
practical equivalent of an express invitation to object, cf. United
States v. Jimenez, 512 F.3d 1, 6-7 (1st Cir. 2007), and defense
counsel had to know she was on the spot to speak up or waive any
claim.
It is of no matter to this waiver analysis that a
violation of the Sixth Amendment public trial right is structural,
as distinct from merely trial error. See United States v. Owens,
483 F.3d 48, 63 (1st Cir. 2007). The structural character means
only that if Christi could now raise the issue he would not need to
show any particular prejudice if otherwise entitled to relief. See
id. While there is some question whether Article III structural
error may be waived (that is, error in assigning certain Article
III judicial functions to a magistrate judge), that question arises
only because the values protected are substantially institutional
rather than individual, see Peretz v. United States, 501 U.S. 923,
937 (1991) (citing Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833, 850-51 (1986)). Indeed, In Peretz, the Supreme Court
expressly cited Levine v. United States, 362 U.S. 610, 619 (1960)
for the proposition that a failure to object to closing a courtroom
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waives any claim of infringement to a right of public trial.1 The
Sixth Amendment claim having been waived, there is no occasion to
consider whether closing the doors in this case was objectionable
under Scott.
Affirmed.
1
It is not significant, as Christi claims, that the public
trial right in Levine was provided by the Fifth Amendment Due
Process Clause, owing to the fact that the issue arose in a
criminal contempt proceeding, which is not a Sixth Amendment
“prosecution[].” As the Court explained, the values protected are
the same in each case. Levine, 362 U.S. at 616.
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