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USCA1 Opinion
December 11, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2223
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GEORGE F. WOOD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Torruella and Selya, Circuit Judges,
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and Zobel,* District Judge.
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Terrence D. Garmey with whom Karen B. Lovell and Smith & Elliot,
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P.A. were on brief for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Richard S. Cohen, United States Attorney, and Thimi R. Mina,
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Assistant United States Attorney, were on brief for appellee.
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* Of the District of Massachusetts, sitting by designation.
ZOBEL, District Judge. Appellant was an attorney in private
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practice in Sanford, Maine. In 1987, Philip Spang, Jr. ("Philip"), a
client and close personal friend, approached him and asked if he would
help obtain the forged signatures of Philip's sons, Timothy and
Daniel, on deeds to certain real estate. Appellant initially refused
but then he agreed and sought out the services of William Lessard, a
private investigator in New Hampshire. Lessard promised to locate a
forger, but after considering the legal consequences of such action he
contacted the Federal Bureau of Investigation and agreed to cooperate
by wearing recording equipment during his encounters with appellant.
Appellant and Lessard communicated by telephone and in person to plan
the forgeries. After many such conversations, appellant was arrested,
charged with and, following a trial, convicted of two counts of wire
fraud in violation of 18 U.S.C. 1343. He now asserts errors in the
charge to the jury and in the admission of rebuttal testimony as well
as the government's argument with respect thereto. We affirm.
The underlying facts are substantially undisputed. Appellant
never denied that he sought to obtain forged signatures on deeds. He
claimed instead that he lacked the necessary fraudulent intent because
of the unusual way in which Philip conducted his real estate dealings.
Philip testified that in the 1940s and 1950s he invested significantly
in real estate. Hoping to avoid creditors and inheritance taxes,
Philip had the deeds prepared in the names of his children or
siblings. These deeds, naming such child or sibling as owner in fee,
were recorded. With respect to many of the transactions, Philip also
arranged for the "donee" to sign a deed conveying the same real estate
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to Philip. The latter would keep that deed at his home, until
necessary, when he would simply record it and thus divest the "donee"
of title. Appellant was familiar with Philip's unique real estate
arrangements and had, in fact, drafted and/or recorded a number of the
deeds.
During 1986 Philip and his wife began to have marital problems,
as a result of which his relationship with his sons Daniel and Timothy
became strained. Thus, when, in 1987, Philip asked Timothy and Daniel
to deed to him certain of the properties he had purchased and put in
their names, neither would do so. Philip testified that he believed
Timothy and Daniel had signed "return deeds" for these properties but
that he could not find the documents. He ultimately told appellant
that the deeds were missing and that he wanted the latter's assistance
in obtaining the sons' forged signatures on duplicate deeds to replace
the ones missing. Appellant testified that he believed he was only
helping to replace valid deeds which had been lost or stolen,* and
that, in any event, the forged deeds would be used only to convince
the sons to sign new deeds conveying title to Philip so as to carry
out Philip's original intent.
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* Appellant also testified that Philip told him his children had
cleaned out his office in the basement and had stolen deeds, money,
coins, and his grandfather's gold watch.
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Appellant asserts first that the trial court's failure to give
his requested jury instructions 9, 10, 11 and 12 constitutes
reversible error.** He argues that because the jury was not
instructed as to the legal effect of the return deeds the jury could
not fairly consider the theory of his defense; namely, that his good
faith belief in the existence of the return deeds negated criminal
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** Defendant's Proposed Jury Instructions nine through twelve read as
follows:
( 9 )
Mr. Wood has testified that he believed that Timothy and Daniel
Spang had signed deeds re-conveying to their father, Philip, the
property which Philip had deeded to them, and that he
consequently believed Philip and not Timothy and Daniel owned the
property. He has testified that he believed Timothy and Daniel
could not be defrauded of property they did not own. If you find
that the government has failed to disprove Mr. Wood's contention
that he held this belief, then the government has failed to prove
his intent to commit fraud and, accordingly, you must find him
not guilty.
( 1 0 )
When a person signs a deed and delivers that deed to the person
named on the deed as the new owner, the signer of the deed no
longer owns the property. It is not necessary for the deed to be
recorded in the Registry of Deeds for this transfer of ownership
to occur.
( 1 1 )
If you find that George Wood believed that Timothy Spang and
Daniel Spang signed deeds re-conveying to their father the
property he had previously deeded to them, and that he therefore
believed Timothy Spang and Daniel Spang did not own the property
and could not be defrauded of it, then you must find that the
government has failed to prove that Mr. Wood had an intent to
defraud and, therefore, you must enter a verdict of not guilty.
( 1 2 )
If you find that George Wood believed that Timothy Spang and
Daniel Spang signed deeds re-conveying to their father the
property he had previously deeded to them, then you must find
that the government has failed to prove that Mr. Wood had an
intent to defraud and, therefore, you must enter a verdict of not
guilty.
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intent.
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The Court's refusal to give requests 9, 11 and 12 requires little
discussion. They are clearly argument and the Court correctly
declined to give them. See United States v. Gonzalez, 933 F.2d 417,
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446 n.19 (7th Cir. 1991).
We review the failure to read proposed instruction 10 in light of
the record as a whole, considering the charge as given. United States
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v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989), cert. denied, 494 U.S.
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1005 (1990). Although a defendant is entitled to request an
instruction on his or her theory of the case, United States v. Noone,
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913 F.2d 20, 30 (1st Cir. 1990), cert. denied, 111 S. Ct. 1686 (1991),
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a trial court's refusal to give it is reversible error only if "'the
instruction (1) is substantively correct; (2) was not substantively
covered in the charge actually delivered to the jury; and (3) concerns
an important point in the trial so that the failure to give it
seriously impaired the defendant's ability to effectively present a
given defense.'" United States v. Gibson, 726 F.2d 869, 874 (1st
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Cir.)(quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir.
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1981)), cert. denied, 466 U.S. 960 (1984).
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The trial judge properly declined to instruct the jury in accord
with request number 10. First, it is not accurate. The request
implies that delivery of a signed but unrecorded deed is always
sufficient to transfer ownership of the property. The cases appellant
cites, however, hold only that an unrecorded deed may be effective
and binding between the grantor and grantee, without
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discussing the effect of such a transfer on third parties. See Buck
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v. Babcock, 36 Me. 491, 493 (1853); Lawry v. Williams, 13 Me. 281, 284
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(1836). Indeed, the recording statute cited by appellant clearly
states that an unrecorded conveyance is not effective against any
party except the grantor and those with actual notice. Me. Rev. Stat.
Ann. tit. 33, 201 (West 1988). Neither the cases nor the statute
support the broad concept of "ownership" advanced by appellant.
Second, even if request number 10 accurately stated the law it
was properly rejected because it is irrelevant to this case. The
judge instructed, without objection, that record title is a form of
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property whether or not it represents full legal title to the
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property. Because record title is something of value, the intention
to deprive another of such title by means of deception or
misrepresentation of facts constitutes fraudulent intent. Timothy
and Daniel indisputably held record title to the real estate at issue
when defendant sought to obtain their forged signatures. Until
Philip recovered and recorded the alleged return deeds they thus had
rights in the real estate, enforceable against any third party. So
long as those deeds remained unrecorded Timothy and Daniel had an
interest in land of which they could be defrauded.
Finally, the charge given was sufficient to frame the defendant's
theory of the case for the jury. The court gave detailed and complete
instructions regarding the good faith defense, defining "honest
intention" and "good faith," and explaining that "good faith
constitutes a complete defense to one charged with an offense of which
fraudulent intent is an essential element." In sum, we find no error
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in the trial court's failure to read defendant's requested
instructions 9, 10, 11 and 12.
Appellant next claims error in the admission of the testimony of
former members of his office staff in the prosecution's rebuttal case.
In particular, he objects to statements that they had observed
appellant signing names other than his own to documents as well as
witnessing and notarizing signatures without the signatory present;
that he had asked them to perform similar acts and, in one instance,
to back date a deed involving Daniel Spang.
Although the government argues that appellant, by failing to make
contemporaneous objection, has not preserved this issue for appeal,
defense counsel did generally and timely object to the rebuttal
evidence. Before the testimony was admitted the defense raised three
objections: (1) because appellant admitted that he had sought to
obtain "duplicate" signatures on deeds, the rebuttal testimony was
irrelevant to any disputed fact; (2) the prejudicial effect of the
evidence outweighed its probative value; and (3) rebuttal was improper
because appellant had offered no character evidence.
The conduct of a trial, including decisions whether to permit the
introduction of rebuttal evidence, resides with the sound discretion
of the trial judge. Borges v. Our Lady of the Sea Corp., 935 F.2d
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436, 442 (1st Cir. 1991). The record before us evinces no abuse of
that discretion. "Rebuttal evidence may be introduced to explain,
repel, contradict or disprove an adversary's proof." United States v.
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Laboy, 909 F.2d 581, 588 (1st Cir. 1990). Appellant testified that
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his effort to procure unauthorized signatures was a "one time
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occurrence." The proffered evidence thus directly contradicted the
testimony of appellant himself. It was also highly relevant on the
issue of appellant's intent and thus admissible under Rule 404(b).
Fed. R. Evid. 404(b). Moreover, the trial court's careful weighing of
the probative value and prejudicial effect of the evidence fully
comported with Rule 403. Fed. R. Evid. 403. "By design, all evidence
is meant to be prejudicial; it is only unfair prejudice which must be
avoided." United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st
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Cir. 1989).
Finally, appellant asserts error in the Court's refusal to issue
a curative instruction in response to a comment by the prosecutor
during closing argument.*** The trial court has broad discretion
to control the scope of closing arguments. United States v. Wilbur,
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545 F.2d 764, 767 (1st Cir. 1976). Having reviewed the record, we
conclude that the Court below did not abuse its discretion in this
instance. The comment was made in answer to the closing argument of
the defense and fell properly within the scope of issues raised at
trial. Therefore, neither the prosecutor's question during argument
nor the Court's refusal to give a curative instruction provides
grounds for reversal.
The judgment of conviction is affirmed.
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*** Referring to the testimony of one of appellant's former employees,
the prosecutor asked, "[i]f that is sloppy practice, ladies and
gentlemen, where does the line of criminal act begin?"
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Document Info
Docket Number： 91-2223
Filed Date： 12/11/1992
Precedential Status： Precedential
Modified Date： 9/21/2015