United States v. Medina Puerta ( 1994 )


Menu:
  • USCA1 Opinion









    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    ____________________

    No. 93-2167

    UNITED STATES OF AMERICA,

    Appellee,

    v.

    ANTONIO MEDINA PUERTA,

    Defendant, Appellant.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Robert E. Keeton, U.S. District Judge]
    ___________________

    ____________________

    Before

    Selya, Circuit Judge,
    _____________

    Bownes, Senior Circuit Judge,
    ____________________

    and Boudin, Circuit Judge.
    _____________

    ____________________

    Morris M. Goldings with whom Richard S. Jacobs and Mahoney,
    ___________________ __________________ ________
    Hawkes & Goldings were on brief for appellant.
    _________________
    Timothy Q. Feeley, Assistant United States Attorney, with whom
    __________________
    Donald K. Stern, United States Attorney, was on brief for the United
    _______________
    States.


    ____________________

    October 21, 1994
    ____________________






















    BOUDIN, Circuit Judge. On September 5, 1991, a grand
    _____________

    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



    -2-
    -2-















    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
    ___ ______

    States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, 63
    ______ ____ ____________

    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



    -3-
    -3-















    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



    -4-
    -4-















    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



    -5-
    -5-















    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
    ______

    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.





    -6-
    -6-















    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--



    -7-
    -7-















    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
    ____ ______________ _______

    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



    -8-
    -8-















    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
    _____________ _________

    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
    _____

    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:



    -9-
    -9-















    (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
    ___

    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
    __

    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



    ____________________

    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-















    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



    -11-
    -11-















    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
    ________ ______

    States, 458 U.S. 279 (1982), where the 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 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
    ________

    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.
    ________

    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



    ____________________

    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-















    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
    ______ _____________ _______

    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
    ___________

    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]


    ____________________

    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 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
    _____________ ______

    (1st Cir.), cert. denied, 449 U.S. 837 (1980). See also
    _____________ ________

    Turner v. United States, 396 U.S. 398, 420 (1970). But it is
    ______ _____________

    one thing to say that the evidence is sufficient if adequate
    ________

    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
    ______ ______

    adequacy of the instructions.
    ____________

    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
    __

    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
    ____

    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.



    -15-
    -15-















    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
    _______

    clearly tell the jury that it had to be unanimous in finding

    within count I of the indictment either a scheme to defraud
    ______

    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
    ____ ______________ _____________

    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
    ____

    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
    ____

    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.



    -16-
    -16-















    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.),
    ___ _____________ ________

    cert. denied, 454 U.S. 1102 (1981). Here, Medina's brief
    ____________

    says blandly but without explanation, "no money had been



    -17-
    -17-















    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.
    ___

    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



    -18-
    -18-















    drugs or stolen property if the substance is not in fact a

    controlled substance or the property not stolen. E.g. United
    ____ ______

    States v. Rose, 590 F.2d 232, 235 (7th Cir. 1978), cert.
    ______ ____ _____

    denied, 442 U.S. 929 (1979); United States v. Oviedo, 525
    ______ ______________ ______

    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



    -19-
    -19-















    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.
    _____________

    Blockburger, 284 U.S. 299, 304 (1932). Here, section 1344
    ___________

    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.





    -20-
    -20-















    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-
    __ ____ _____________ _________

    Torres, 980 F.2d 788, 790 (1st Cir. 1992), and the trial
    ______

    court's denial of a new trial request is reviewed for abuse

    of discretion. United States v. Nickens, 955 F.2d 112, 116
    ______________ _______

    (1st Cir.), cert. denied, 113 S. Ct. 108 (1992). We need not
    ____________

    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



    -21-
    -21-















    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
    ____

    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.
    ________

















    -22-
    -22-