United States v. Howard Shmuckler , 792 F.3d 158 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2015 Decided July 7, 2015
No. 12-3024
UNITED STATES OF AMERICA,
APPELLEE
v.
HOWARD R. SHMUCKLER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cr-00102-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Jay Apperson, Assistant U.S. Attorney, argued the cause for
appellee. On the brief were Ronald C. Machen, Jr., U.S.
Attorney at the time the brief was filed, and Elizabeth Trosman,
John P. Mannarino, Jonathan P. Hooks, and Lauren R. Bates,
Assistant U.S. Attorneys.
Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and
SENTELLE, Senior Circuit Judge.
2
GARLAND, Chief Judge: A jury convicted Howard
Shmuckler on five counts of bank fraud and five counts of
possessing and uttering1 a counterfeit security with intent to
deceive. On appeal, Shmuckler challenges the sufficiency of the
evidence supporting one of the counterfeit security counts.
Because the government failed to present evidence from which
a reasonable jury could have found that the security (a check)
was counterfeit, we reverse the conviction on that count. We
reject, however, Shmuckler’s request that we remand the case
for an inquiry into jury selection.
I
Between August 2005 and March 2006, Shmuckler
deposited a number of checks that falsely listed him as the
payee, in amounts totaling over $1,358,000, into accounts
controlled by him and his wife. On July 16, 2010, a grand jury
returned a ten-count indictment, charging Shmuckler with five
counts of bank fraud, in violation of 18 U.S.C. §§ 2 & 1344, and
five counts of possessing and uttering a counterfeit security with
intent to deceive, in violation of 18 U.S.C. §§ 2 & 513(a). The
ten counts were comprised of one count of bank fraud and one
count of possessing and uttering a counterfeit security for each
of five transactions. The case went to trial on December 5,
2011.
Count 8 of the indictment charged Shmuckler with
possessing and uttering a counterfeit check issued by a
1
See Oxford English Dictionary Online, http://www.oed.com
(defining “to utter” as “to pass or circulate (base coin, forged notes,
etc.) as legal tender”); 1 & 2 Phil. & M., c. 11 (1554-1555) (Eng.)
(criminalizing, as High Treason, the import of counterfeit money into
the Realm with “the intent to utter or make paiment withe the same
within this Realme”).
3
commercial insurance agency, the Young Agency, on or about
October 18, 2005. In support of the charge, the government
introduced (inter alia) the testimony of Steven Hickey, the
accounting manager for the Young Agency. Hickey testified
that, on September 28, 2005, the Young Agency issued a check
for premium payments to American International Company in
the amount of $408,000. He further stated that, on October 19,
2005, SunTrust Bank contacted the Young Agency, advising
that the check was presented to the bank but did not clear
because SunTrust detected that the payee’s name on the check
“had been altered fraudulently” to “Howard R. Shmuckler.”
12/6/2011 A.M. Tr. 38-42. The Young Agency then placed a
stop payment order on the check and issued a replacement check
to American International. The government also introduced into
evidence a copy of the genuine check as issued by the Young
Agency, and a copy of the check as deposited by Shmuckler.
The jury convicted Shmuckler on Count 8 and on one count
of bank fraud for the same transaction. It also convicted him on
four other counts of possessing and uttering a counterfeit
security and four other counts of bank fraud for transactions
involving other checks. On April 5, 2012, the district court
sentenced Shmuckler to concurrent sentences of 75 months’
imprisonment on each count. It imposed concurrent, five-year
terms of supervised release on the bank fraud counts and
concurrent, three-year terms of supervised release on the
counterfeit security counts. Finally, it ordered Shmuckler to pay
restitution, as well as a $100 special assessment on each count.
On appeal, Shmuckler challenges his conviction on Count
8. Although he does not challenge his convictions on the other
counts,2 he requests that we remand the entire case to the district
2
The fact that Shmuckler’s prison sentence on Count 8 was set to
run concurrently with sentences for his convictions on the other counts
4
court to inquire into whether there was misconduct in
connection with the selection of his jury. We address Count 8
in Part II and the jury issue in Part III.
II
Shmuckler contends that we must vacate his conviction on
Count 8 because it was the result of a prejudicial variance.
Specifically, he maintains that the evidence introduced at trial
showed at most that the Young Agency check was forged -- that
is, “falsely altered,” 18 U.S.C. § 513(c)(2) -- while the
indictment charged that the check was counterfeit -- that is,
“falsely made or manufactured in its entirety,” id. § 513(c)(1).
Although both sides briefed and argued this claim under the
framework of variance, Shmuckler’s claim is more readily
analyzed as an ordinary sufficiency-of-the-evidence challenge.
A variance between a crime charged in the indictment and the
evidence introduced at trial “requires reversal of a conviction
only if the defendant suffered prejudice as a consequence.”
United States v. Cross, 766 F.3d 1, 5 (D.C. Cir. 2013) (citing,
inter alia, Berger v. United States, 295 U.S. 78, 82 (1935)).
Here, if the evidence was insufficient to support Shmuckler’s
conviction for possessing and uttering a counterfeit check, that
alone would constitute sufficient prejudice to require reversal,
see id., and nothing would be added by calling the situation a
variance. Conversely, if the evidence was sufficient to support
that conviction, there was no prejudicial variance and hence no
ground for reversal. Both parties agree with this analysis. See
Oral Arg. Recording at 8:18-50 (defense counsel); id. at 32:14-
56 (government counsel).
does not affect our duty to review his challenge to that count. See Ball
v. United States, 470 U.S. 856, 864-65 (1985); United States v.
McLaughlin, 164 F.3d 1, 16 (D.C. Cir. 1998).
5
Shmuckler preserved the sufficiency-of-the-evidence issue
for our review by filing the requisite motion for judgment of
acquittal in the district court. See 12/8/2011 Tr. 92-93; see also
United States v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998)
(holding that “a ‘broadly stated’ motion for judgment of
acquittal ‘without specific grounds’ is ‘sufficient to preserve [a]
full range of challenges . . . to the sufficiency of the evidence’”
(quoting United States v. Hammoude, 51 F.3d 288, 291 (D.C.
Cir. 1995))). He has also raised the issue on appeal. We
therefore proceed to consider whether there was sufficient
evidence to conclude that the Young Agency check Shmuckler
deposited was counterfeit, without pausing over the parties’
dueling variance arguments. “[T]he relevant question is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime” -- here, that the check was
counterfeit -- “beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis omitted).
Under 18 U.S.C. § 513, it is illegal to “utter[] or possess[]
a counterfeited security . . . [or] a forged security . . . with intent
to deceive another person, organization, or government.” 18
U.S.C. § 513(a). Section 513 defines a “counterfeited”
document as one “that purports to be genuine but is not, because
it has been falsely made or manufactured in its entirety.” Id.§ 513(c)(1) (emphasis added). It defines a “forged” document
as one “that purports to be genuine but is not because it has been
falsely altered, completed, signed, or endorsed, or contains a
false addition thereto or insertion therein, or is a combination of
parts of two or more genuine documents.” Id. § 513(c)(2)
(emphasis added).3
3
The government argues that there is not a hard dichotomy
between “forged” and “counterfeited,” and that even when the
evidence shows only that a security was falsely altered, that can still
6
Ordinarily, the difference between a “counterfeited”
security and a “forged” security should not matter because the
statute makes it a crime to possess (or utter) either one with
intent to deceive. Thus, if the government had charged
Shmuckler with possessing a counterfeit or a forged check, it
would have been entitled to prove either at trial.4 But the
government did not charge Shmuckler with possessing a
counterfeit or a forged check. It simply charged him with
possessing a counterfeit check, full stop. “By the way the
government chose to frame [the] indictment,” it made a
counterfeit check “an essential part of the charge and limited the
bas[i]s for possible conviction” to the possession of such a
check. United States v. Leichtnam, 948 F.2d 370, 379 (7th Cir.
1991). Accordingly, the question before us is whether there was
support a conviction for a counterfeit security if “‘all the essential
information was falsified.’” Gov’t Br. 36-37 (quoting United States
v. Blakey, 960 F.2d 996, 999-1000 (11th Cir. 1992)). Whether or not
the government is correct, there is no evidence that all the essential
information on the Young Agency check was altered. As we recount
below, the only apparent difference between the check as issued and
as deposited is the payee information. Cf. Blakey, 960 F.2d at 999(finding that a check had been counterfeited when it had been
transformed from a $5.00 check drawn in 1983, to a $35,000 cashier’s
check with a 1987 date and a false authorizing signature).
4
We use the disjunctive “or” for clarity, although such an
indictment would actually have charged the defendant in the
conjunctive to provide the defendant with sufficient notice of what he
had to defend against. Thus, the indictment would actually have
charged the defendant with possessing a counterfeit check and a
forged check. See DEP’T OF JUSTICE, U.S. ATTORNEY’S MANUAL:
CRIMINAL RESOURCE MANUAL § 227 (1997). The jury instruction
would then have permitted the jury to convict upon proof that the
defendant possessed either a counterfeit or a forged check. See United
States v. Baxter, 761 F.3d 17, 25 n.7 (D.C. Cir. 2014); United States
v. Coughlin, 610 F.3d 89, 106 (D.C. Cir. 2010).
7
sufficient evidence for a rational juror to have concluded beyond
a reasonable doubt that the Young Agency check Shmuckler
deposited was counterfeit -- i.e., that it was a document “falsely
made or manufactured in its entirety,” rather than an otherwise
genuine document that was simply “falsely altered,” 18 U.S.C.
§ 513(c).
To prove that the check Shmuckler deposited was
counterfeit, the government might have introduced both that
check and the original check the Young Agency issued. If there
were in fact two different, physical checks, the jury could then
readily have concluded that the check Shmuckler deposited must
have been a different document, falsely made or manufactured
in its entirety. But the government did not introduce the actual
checks. It introduced only copies, Oral Arg. Recording at
21:01-32, and it is not possible to tell by comparing them
whether the deposited check was an alteration of the original or
an entirely new document, compare Gov’t Trial Ex. 64 (J.A. 32),
with Gov’t Trial Ex. 9E (J.A. 33).
The government might also have sought to prove that the
check deposited by Shmuckler was counterfeit by calling
attention to aspects of that check that would have indicated its
counterfeit nature. Cf. Spinner, 152 F.3d at 958 (finding
insufficient evidence to sustain a firearms conviction where the
jury was left “without any testimonial guidance [to] determine[]
that the weapon satisfied the applicable statutory requirements”
(citing United States v. Meadows, 91 F.3d 851 (7th Cir. 1996))).
But the government did not do this either. Indeed, the only
obvious difference between the check copies is that one is made
out to American International Company and the other is made
out to Howard R. Shmuckler. That difference does not resolve
whether the discrepancy is due to forgery or counterfeiting.
8
We are therefore left to consider the evidence that the
government did present to the jury. The only such relevant
evidence was the testimony of Steven Hickey. That testimony
does not help the government on this issue either.5
Hickey repeatedly testified that the check with Shmuckler’s
name on it had been fraudulently “altered,” 12/6/2011 A.M. Tr.
38, which is the definition of forgery rather than counterfeiting,
see 18 U.S.C. § 513(c). The only difference that Hickey said he
observed in examining copies of the check issued by the Young
Agency and the one deposited by Shmuckler is the same
difference we observe: the changed payee name. See 12/6/2011
A.M. Tr. 40-41. Indeed, after Hickey told the prosecutor that
the “payee name had been altered,” id. at 38; see id. at 40, the
prosecutor asked whether “any other part of the check [had]
been altered.” His answer was “no.” Id. at 41.
The government draws our attention to Hickey’s testimony
that “[t]he original check was presented to the bank,” id. at 39.
It maintains that this suggests that both the original, unaltered
check and the false check were presented to the bank, which
would in turn suggest that the false check was an entirely new
document. Gov’t Br. 36. But this takes Hickey’s statement out
of context. Hickey’s other testimony, both preceding and
following the statement cited by the government, indicates that,
5
In a footnote, the government argues that the jury could have
considered two other kinds of evidence: (1) testimony concerning
other counterfeit checks deposited by Shmuckler, and (2) testimony
“regarding a scam commonly referred to in the banking industry as the
‘Nigerian cashier’s check scam’ where individuals would create
counterfeit checks by ‘get[ting] a copy of a check and alter[ing] it.’”
Gov’t Br. 34 n.17. None of this testimony, however, bears on whether
the Young Agency check (as opposed to some other check) was
counterfeit.
9
when he used the term “original check,” he meant the “original
check that . . . had been fraudulently altered and presented for
payment to the bank,” 12/6/2011 A.M. Tr. 38, and not the
original check that had been issued by the Young Agency. In
context, he used the term “original check” to distinguish the
altered check from the “replacement check” that the Young
Agency issued after it stopped payment on the altered check, id.
at 38-39. The government’s reading of Hickey’s testimony is at
best speculative, and speculation cannot sustain a jury verdict.
See United States v. Gaskins, 690 F.3d 569, 578 n.3 (D.C. Cir.
2012); United States v. Teffera, 985 F.2d 1082, 1085, 1088
(D.C. Cir. 1993). We therefore conclude that there was
insufficient evidence for a jury to find that the Young Agency
check was counterfeit and hence insufficient evidence to sustain
his conviction on Count 8.6
III
In this part, we address Shmuckler’s two jury-related
contentions.
A
Shmuckler first contends that the district court plainly erred
by failing to sua sponte conduct a hearing to inquire into a
matter that arose after his jury was selected. As a remedy, he
asks us to remand the case for such an inquiry.
Jury selection for Shmuckler’s trial took place on Friday,
December 2, 2011. One of the forty-five prospective jurors who
6
Shmuckler agrees, however, that the government did proffer
sufficient evidence that the checks underlying the other four counts of
the indictment were counterfeit rather than forged. Oral Arg.
Recording at 15:40-16:11.
10
participated, Juror 1547, indicated during voir dire that he
worked “in an environment with a lot of attorneys and dealt with
legislation dealing with banking issues,” 12/2/2011 Tr. 40-41;
that he had daily contact with the Secret Service and U.S.
Capitol Police, id. at 45; and that he had a “very frustrating”
experience in which fraudulent checks were written on his bank
account, id. at 173-75. The district court denied Shmuckler’s
motion to strike Juror 1547 for cause, but Shmuckler later used
one of his peremptory strikes to knock the juror out of the jury
pool.
At the end of voir dire, the courtroom clerk called the
number of each prospective juror who had been selected for the
jury. Juror 1547, who had been struck, was not among them.
Nonetheless, Juror 1547 ended up seated in the jury box, in a
seat that was supposed to be occupied by Juror 0514. After the
district court dismissed the panel -- instructing those who were
selected to report back to court on December 5 for the start of
the trial, and instructing those who were not selected to return to
the jurors’ lounge on their way out -- the prosecutor alerted the
district court to Juror 1547’s erroneous presence in the jury box.
The district court then directed the courtroom clerk to call Juror
0514 (who had not reported to the jurors’ lounge on her way
out) and instruct her to be in court on December 5 for the start
of trial, and to call Juror 1547 and instruct him not to return to
court.
As instructed, Juror 0514 reported to court for trial on
Monday, December 5. She was sworn in with the rest of the
jury and served without further incident. As also instructed,
Juror 1547 did not report and had no role in the trial.
Shmuckler acknowledges that, because he did not raise a
timely objection or claim of juror misconduct with the district
court, our review must proceed under the plain error standard.
11
Shmuckler Br. 23; see FED. R. CRIM. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). This means that
Shmuckler has the burden of showing that there is “‘(1) error,
(2) that is plain, and (3) that affect[s] substantial rights. If all
three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’” United States v. Simpson, 430 F.3d
1177, 1183 (D.C. Cir. 2005) (quoting Johnson v. United States,
520 U.S. 461, 467 (1997) (internal citations and quotation marks
omitted)). In most cases, to affect the defendant’s substantial
rights, “‘the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.’” Id. at
1183-84 (quoting Olano, 507 U.S. at 734).7
Shmuckler maintains that the district court should have
recognized that it was required to hold a hearing to “determine
the circumstances of the switch and whether the circumstances
implicate juror bias.” Shmuckler Br. 24-27. Not so. Although
a hearing is ordinarily required to determine “the prejudicial
effect of uncontested misconduct,” district courts have “broad
discretion” to consider the “strength and seriousness of the
7
The government acknowledges that, ordinarily, claims that are
not timely raised in the district court are considered forfeited and
reviewed for plain error. See Olano, 507 U.S. at 733. It contends,
however, that the failure to timely raise a claim of juror bias should be
regarded as a waiver, precluding any appellate review at all. Gov’t Br.
14-16 (citing, e.g., United States v. Rowe, 144 F.3d 15, 20-21 (1st Cir.
1998) (holding that such a claim is “waived,” without distinguishing
between waiver and forfeiture)). But see Olano, 507 U.S. at 733(“Waiver is different from forfeiture. Whereas forfeiture is the failure
to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.” (internal quotation
marks omitted)). We do not address this contention because
Shmuckler’s claim fails even under the plain error standard.
12
allegations” and decide how to investigate when it is not clear
that misconduct occurred at all. United States v. White, 116
F.3d 903, 929-30 (D.C. Cir. 1997).
The person who was properly selected for the jury -- Juror
0514 -- did sit on the jury. The person who was mistakenly in
the jury box on the Friday before the trial began -- Juror 1547 --
did not. As Shmuckler recognizes, his theory that the juror mix-
up was not an innocent mistake, but rather part of some scheme
that involved Juror 0514, is based on speculation. See Oral Arg.
Recording at 4:03-09; see also id. at 3:02-4:01 (statement by
Shmuckler’s counsel offering “speculative scenarios” in which
Juror 0514 and Juror 1547 might have colluded; or in which
Juror 0514 might have attempted to avoid jury duty and, having
failed, then voted to convict Shmuckler to curry favor with the
government).8 But “[d]efense ‘counsel’s unsubstantiated
suspicion’ does not, on its own, require the district court to
conduct jury questioning.” United States v. Gibson, 353 F.3d
21, 26 (D.C. Cir. 2003) (quoting United States v. Thornton, 746
F.2d 39, 50 (D.C. Cir. 1984)).
B
Nearly a year after the jury announced its verdict against
him, and after he had noticed his appeal, Shmuckler filed a post-
judgment motion in the district court seeking to interview Juror
0514 pursuant to Local Criminal Rule 24.2(b). Once a jury has
been discharged, that rule authorizes -- but does not require --
8
See also Shmuckler Br. 25, 27 (stating that “[t]he court and
parties did not know why or how the switch occurred,” and that, “[i]f
the switch was due to Juror 0514’s effort to evade serving as a juror,
conduct that is punishable as contempt, . . . [she] might have been
motivated . . . to convict based on a desire to curry favor with the party
responsible for prosecuting that contempt” (emphasis added)).
13
the district court to grant such a request “for good cause shown.”
D.D.C. CRIM. R. 24.2(b). The district court denied the motion
in a Minute Order, finding (inter alia) that Shmuckler failed to
show good cause because the facts he alleged “d[id] not
plausibly reflect possible misconduct.” Minute Order, United
States v. Shmuckler, No. 10-cr-00056 (D.D.C. Feb. 5, 2013)
(J.A. 25).
Shmuckler did not appeal that order. Instead, he filed a
motion in this court to remand the case so that he could refile his
Rule 24.2(b) motion with the district court, this time providing
more detail as to why it should be granted. In particular, he
suggested that he could “explain[] in greater detail the unusual
conduct during the impaneling of the jury.” Mot. to Remand 2,
United States v. Shmuckler, No. 12-3024 (D.C. Cir. Mar. 15,
2013) (J.A. 50). A special panel of this court directed the
parties to include a discussion of the motion in their merits
briefs. That motion is now before us.
In the time between filing his motion to remand and filing
his merits briefs, Shmuckler seems to have changed tack. He
now argues that we should remand the case, not because he has
more detail to include in his interview motion, but because the
district court erred in concluding that he had failed to show good
cause in the first place. Compare Mot. to Remand 2, with
Shmuckler Br. 33. In light of the discussion above, we find both
tacks unavailing. The district court did not abuse its discretion
in finding that Shmuckler had failed to show good cause to
conduct an interview. Indeed, in his original motion, Shmuckler
did nothing more than describe the factual circumstances of the
seating of the jurors. See Mot. for Authorization, United States
v. Shmuckler, No. 10-cr-00056 (D.D.C. Feb. 5, 2013) (J.A. 45-
46). Nor does Shmuckler now describe any more detail that he
wishes to add. See Mot. to Remand 2.
14
IV
For the foregoing reasons, we vacate Shmuckler’s
conviction on Count 8 and remand the case to the district court
for further proceedings consistent with this opinion. We affirm
the district court’s judgment in all other respects and deny
Shmuckler’s request to remand for an inquiry into jury selection.
So ordered.