DocketNumber： 93-1122
Filed Date： 12/9/1993
Status： Precedential
Modified Date： 9/21/2015
December 9, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1122
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN C. JONES,
Defendant, Appellant.
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ERRATA SHEET
Please make the following correction in the opinion in the above
case released on December 3, 1993:
Page, line 2: "entences" should be corrected to read
"sentences"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1122
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN C. JONES,
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
Selya and Stahl, Circuit Judges,
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and Fuste,* District Judge.
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Morris M. Goldings with whom Richard S. Jacobs and Mahoney,
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Hawkes & Goldings were on brief for appellant.
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Margaret D. McGaughey, Assistant United States Attorney, with
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whom Jay P. McCloskey, United States Attorney, and Raymond C. Hurley,
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Assistant United States Attorney, were on brief for appellee.
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December 3, 1993
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*Of the District of Puerto Rico, sitting by designation.
FUSTE, District Judge. Defendant Stephen C. Jones
FUSTE, District Judge.
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was convicted of conspiracy to defraud two federally insured
banks and to transport forged securities in interstate commerce
in violation of 18 U.S.C. 2314 (Count 1), bank fraud in
violation of 18 U.S.C. 1344 (Counts II and III), and the
interstate transportation of forged securities in contravention
of 18 U.S.C. 2314 (Counts IV and V). Jones argues on appeal
that (1) a UCC-3 release of collateral form is not a "security"
as defined by pertinent statute and his conviction on Counts IV
and V should, therefore, be reversed; (2) the judge incorrectly
gave a willful blindness instruction as to Jones' intent; (3)
there was insufficient evidence to support the verdicts; (4) the
court erroneously denied a motion to sever Jones' trial from that
of his codefendant, and (5) the sentence was overly severe and
was incorrectly based on Jones' occupation as an attorney.
We conclude that a UCC-3 release of collateral form is
not a security as provided for in the applicable statute, the
willful blindness instruction was correctly given, and the denial
of the motion for severance was not an error. We reverse the
conviction on Counts IV and V and the consecutive ten-year
sentence imposed for the transportation of forged securities. We
find that there was sufficient evidence to support Jones'
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conviction on Counts I, II, and III and therefore the five-year
concurrent sentences imposed on those counts shall stand.
I.
I.
Background
Background
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Viewing the evidence in the light most favorable to the
government, see United States v. Rivera-Santiago, 872 F.2d 1073,
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1078-79 (1st Cir.), cert. denied, 492 U.S. 910 (1989), the
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following facts were established at trial. During the early
1970s, defendant Stephen C. Jones, together with his father Allan
and Jones' codefendant, Robert Welch, formed a holding company
called Iyanough Management, which over the years acquired a
number of hotels, motels, and other property. In 1985, Iyanough
Management entered into a partnership known as Armory Hotel
Associates with a group of contractors and developers in Maine.
The purpose of the partnership was to convert an old armory
building in Portland, Maine, into the Portland Regency Inn. The
renovations were financed through a loan from Patriot Bank for
$8.2 million, which was secured by a mortgage of the building and
a security interest covering the furniture, fixtures, and
equipment of the hotel. A further cash infusion into the project
was obtained from the Berkshire Saving Bank in the form of a $2
million irrevocable line of credit, which was secured by a second
mortgage on the building and a second security interest in the
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furniture, fixtures, and equipment of the hotel. As a part of
the original mortgage agreement with the two banks, Armory Hotel
Associates signed a UCC-1 form with each bank. This form is a
financing statement which certifies that a party holds a security
interest in particular property. The UCC-1 is filed with the
Secretary of State's office so that any later parties will be
aware that there is an encumbrance upon the property. Each of
the mortgage agreements with the banks provided that no
additional encumbrances upon the collateral could be incurred,
and in the event that any part of the security was sold or
transferred, the entire mortgage debt would be due and payable on
demand. As one of the partners in the Armory Hotel Associates,
Jones signed the notarized mortgage security agreements with both
banks.
Beginning in 1987, Iyanough Management began to
experience financial difficulties. As a measure to generate cash
flow, a sale and lease back of the furniture, fixtures, and
equipment of the Portland Regency Inn was negotiated through
broker David Mudie. Mudie was originally led to believe that
Iyanough Management owned the Portland Regency and its furniture,
fixtures and equipment. Through a search with the Secretary of
State's Office, Mudie found out that Armory Hotel Associates
actually owned the hotel and its contents, and discovered the
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lien on the fixtures, furniture and equipment. As a result, in
order to complete the sale and lease back, Kansallis Finance
Ltd., the group financing the transaction, required that a
release of the security interests of Berkshire County Savings
Bank and Patriot Bank be perfected through the filing of UCC-3
forms. A UCC-3 is a document which can be used to release a
security interest in certain property which has been memorialized
in a UCC-1.1 Welch induced employees of Iyanough Management to
forge the signatures of the loan officers of the two banks on the
release forms. The two forged documents, purporting to release
the interest of the two banks, were filed with the Secretary of
State's office in Maine in August 1987. Welch also directed an
employee to forge the signature of one of the Maine partners of
the Armory Hotel Associates on various other forms required by
Kansallis.
One of Kansallis' prerequisites for the closing was an
opinion letter from counsel for Armory Hotel Associates opining
that Kansallis was receiving a first security interest in the
collateral consisting of the furniture, fixtures, and equipment.
Two drafts of the opinion letter were sent to Jones at his law
firm by the attorney for Kansallis. The final opinion letter was
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1A UCC-3 can also be used to continue, assign or amend a
security interest. When we discuss the document in this case, we
are referring to its use as a release of a security interest.
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returned to Kansallis' counsel on the letterhead of Jones' law
firm, and was signed by John Aufiero, counsel for Iyanough
Management. Aufiero testified at trial that he was given the
form by Jones to sign. David Mudie testified that he spoke with
Jones several times about the transaction and the documents
necessary to complete the arrangement. When the transaction was
completed, the sum of $1,288,533 was wired to Iyanough
Management's account. Approximately $290,000 of the proceeds of
the loan were eventually transferred into an account in Jones'
name.
FBI Agent James Osterrieder interviewed Jones as part
of his investigation of the forged documents. During the
interview, Jones stated that initially it was his idea to carry
out the sale and lease back of the furniture, fixtures, and
equipment, in order to generate cash. Jones stated that he knew
that the banks had a lien on the equipment, but thought that
there was a clause in the closing document which would allow for
the sale and lease back. Jones also told the agent that he and
Welch had discussed the need for a UCC-3 release of interest
before the sale and lease back could proceed, but that Welch said
that he would take care of the problem. Jones admitted that he
had seen a draft of the opinion letter which was required by
Kansallis to consummate the sale and lease back deal, and that he
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arranged to have Aufiero sign the letter because Jones was out of
town at the time.
Robert Welch pled guilty to bank fraud and interstate
transportation of forged securities, and proceeded to trial on
the conspiracy charge. At trial, Welch testified that he
completed the arrangement for the sale and lease back without
telling Jones the details of the transaction, and that Jones
never questioned Welch about the deal. Both defendants argued
that Welch, working alone, caused the UCC-3 documents to be
forged by Iyanough Management employees and filed with the
Secretary of State. Welch was found guilty of conspiracy and
Jones was found guilty on all counts.
II.
II.
Discussion
Discussion
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A. Release of Collateral as a Security Interest
A. Release of Collateral as a Security Interest
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Jones first argues that a UCC-3 is not a "security" for
the purposes of 18 U.S.C. 2314. 18 U.S.C. 2311 defines the
term "security" as used in 2314.2 The district court found,
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2Section 2311 provides:
"[S]ecurities" includes any note, stock
certificate, bond, debenture, check, draft,
warrant, traveler's check, letter of credit,
warehouse receipt, negotiable bill of lading,
evidence of indebtedness, certificate of
interest or participation in any profit-
sharing agreement, collateral-trust
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and the government argues, that a UCC-3 is analogous to an
"instrument or document or writing . . . transferring or
assigning any right, title or interest in or to goods, wares and
merchandise." We disagree and hold that a UCC-3 release of
collateral is not a "security" for the purpose of 18 U.S.C.
2314.
Statutory interpretation is a question of law and,
therefore, is subject to de novo review. United States v.
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Taylor, 802 F.2d 1108, 1112 (9th Cir. 1986), cert. denied, 479
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U.S. 1094 (1987). It has been found that Congress intended a
broad definition of securities in the context of outlawing the
transportation of falsely made or forged securities in interstate
commerce. United States v. Speidel, 562 F.2d 1129, 1131 (8th
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Cir. 1977), cert. denied, 435 U.S. 915 (1978). An analysis of
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certificate, preorganization certificate or
subscription, transferable share, investment
contract, voting-trust certificate; valid or
blank motor vehicle title; certificate of
interest in property, tangible or intangible;
instrument or document or writing evidencing
ownership of goods, wares, and merchandise,
or transferring or assigning any right,
title, or interest in or to goods, wares, and
merchandise; or in general, any instrument
commonly known as a "security", or any
certificate of interest or participation in,
temporary or interim certificate for, receipt
for, warrant, or right to subscribe to or
purchase any of the foregoing or any forged,
counterfeited, or spurious representation of
any of the foregoing.
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the cases applying the definition of "security" under
section 2314, however, does not result in a clear picture of
exactly what is encompassed in this broad definition, or how to
proceed in determining whether novel instruments should also be
included.
The district court relied upon Speidel, supra, in
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support of its finding that a UCC-3 is a security. In Speidel,
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the Eighth Circuit held that a quitclaim deed is a security. The
court found that although a quitclaim deed is not the type of
item normally considered as a security by the commercial and
financial community, such an instrument is an express conveyance
of whatever interest and title the grantor has in a piece of
property. Although it warrants no specific interest in property,
it does transfer some interest in property. Such a deed may be
used to convey interests in land, to clear title to land
encumbered by liens or to transmit full title to land by
conveying the grantor's entire interest to any grantee. After a
quitclaim deed is conveyed, the grantee holds the entire interest
which the grantor had owned.
We are unable to agree with the district court that a
UCC-3 is analogous to a quitclaim deed. Unlike a quitclaim deed,
the UCC-3 at issue in this case is not effective by itself to
transfer or assign a title, right or interest in or to property.
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At most, one could argue that the UCC-3 transfers an interest
from the secured party back to the owner of the property. This
is a much more constrained purpose than the potential uses of a
quitclaim deed, and only permits a transfer of a limited interest
to one particular party, the original owner. The sole result of
the filing of a UCC-3 is that the owner of the property has a
title free of encumbrances and can proceed to transfer the lien
free property to another party. In this case, the UCC-3 was
merely one step in the process of transferring an interest in the
fixtures, furniture, and equipment to a third party, and was
insufficient on its own to convey title to the items listed.
Furthermore, a UCC-3 does not contain the same
qualities as other documents which have been deemed securities.
In determining whether an instrument is a security, other courts
have examined factors such as whether the document evidences an
obligation for the payment of money or represents a particular
interest in goods or property and has inherent value, United
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States v. Canton, 470 F.2d 861, 863 (2d Cir. 1972); whether the
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instrument has intrinsic value and is recognized and treated as
having intrinsic value in the regular channels of commerce, and
whether the document could be sold, United States v. Wexler, 621
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F.2d 1218, 1224 (2d Cir.), cert. denied, 449 U.S. 841 (1980);
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whether the item could be used as collateral and represents an
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acknowledgment of a debt owed or a contractual obligation to pay
in the future, United States v. Austin, 462 F.2d 724, 736 (10th
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Cir.), cert. denied, 409 U.S. 1048 (1972); and whether the
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document purports to be valuable and is sufficient to establish a
given right, relationship or property interest. United States v.
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Johnson, 700 F.2d 163, 175 (5th Cir. 1983).
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The effect of the forged UCC-3 release here was only to
terminate the security interest which the two banks held in the
fixtures, furniture, and equipment of the Portland Regency Inn.
By itself, a document of release has no value, and does not
represent a tangible or intangible valuable property right. Such
a form could not be sold or used as collateral. It does not
represent an acknowledgment of a debt owed or a contractual
obligation to pay in the future. The form was valuable only to
the Armory Hotel Associates and not to any third party. A UCC-3
serves merely to terminate and not to transfer or assign any
property interest.
In addition, we recognize that when, as in this case,
there is ambiguity in a criminal statute, such ambiguity should
be construed in favor of the defendant. United States v.
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Borowski, 977 F.2d 27 (1st Cir. 1992). Because we hold that a
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UCC-3 is not a security as defined for the purposes of 18 U.S.C.
2314, Jones' conviction on two counts of interstate
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transportation of forged securities pursuant to this section must
be reversed.
B. Willful Blindness Instruction
B. Willful Blindness Instruction
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Next, Jones objects to the "willful blindness"
instruction given to the jury, arguing that there was no evidence
that he was aware that a crime was likely in progress and no
evidence that he facilitated it. A willful blindness instruction
is appropriate when (1) defendant claims a lack of knowledge;
(2) the facts suggest a conscious course of deliberate ignorance,
and (3) the instructions, taken as a whole, cannot be
misunderstood by a juror as mandating an inference of knowledge.
United States v. St. Michael's Credit Union, 880 F.2d 579, 584
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(1st Cir. 1989). Here, the first element is obviously present
since Jones claims that he was ignorant of any wrongdoing. The
second requirement may be established from the evidence adduced
at trial. Jones, as one of the partners, signed the original
mortgage agreements with Patriot Bank and Berkshire County
Savings Bank. By signing these agreements, he displayed
knowledge of the encumbrances placed on the fixtures, furniture,
and equipment of the Portland Regency Inn. He also would have
known that the agreements provided that Armory Hotel Associates
could not incur any additional encumbrances on the collateral,
and that the mortgage would become due and payable if any of the
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collateral was sold or transferred. There was evidence produced
at trial that Jones and Welch discussed the need to obtain cash
for Iyanough Management, and the possibility of obtaining such
cash through a deal with Mudie involving a sale of the furniture,
fixtures, and equipment of the Portland Regency Inn. There was
evidence that Mudie discussed the deal with Jones and that
Rodr guez, the lawyer for Kansallis, sent documents to Jones
regarding the deal, including drafts of the opinion letter. In
its final form, this opinion letter represented, among other
things, that the firm was acting as counsel for Armory Hotel
Associates and that there were no other encumbrances on the
furniture, fixtures, and equipment so that Kansallis' security
interest was perfected. Furthermore, John Aufiero testified that
Jones brought him the opinion letter on the letterhead of Jones'
law firm, and requested that Aufiero sign the document.
Testimony by the FBI agent established that initially
it was Jones' idea to arrange the sale and lease back of the
furniture, fixtures, and equipment. Jones told the agent that he
was aware of the banks' liens on the equipment but felt that
there was some way out of them. According to Jones, Welch later
told Jones that Welch did not think that the bank would release
the collateral, but that Welch would take care of it. The day
after the money came through from Mudie and Kansallis, there was
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evidence that Jones personally received checks totalling
approximately $290,000.
This evidence, taken in the light most favorable to the
government, is sufficient for a jury to conclude that Jones knew
about the deal with Kansallis and Mudie, and knew that such a
deal would not be able to go forward without a release of the
prior security interests held by the two banks in the furniture,
fixtures, and equipment of the Portland Regency Inn. Moreover,
there is sufficient evidence from which a jury could conclude,
that Jones knew both (1) that the banks would not release their
interests unless their mortgages were paid in full, and (2) that
the opinion letter was an alternative means of representing to
Kansallis that the property was no longer encumbered by any prior
liens. Even if, as Welch testified, Jones was unaware of the
actual steps taken by Welch to release the security interest, we
find that the facts established at trial suggest that this lack
of knowledge could have been due to a conscious course of
deliberate ignorance on the part of Jones.
The jury instruction given was not likely to give
jurors the impression that they were compelled to make an
inference of knowledge on the part of Jones. The judge
instructed the jury
[t]hat in considering whether defendant
Stephen Jones knowingly committed any
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offense, you may infer but are not required
to infer, knowledge on his part from a
combination of suspicion and indifference to
the truth if you find beyond a reasonable
doubt that to have existed on his part. [sic]
If you find that he had a strong suspicious
[sic] that things were not what they seemed,
or that someone had withheld some important
facts, yet that he shut his eyes for fear of
what he would learn, you may conclude that he
acted knowingly . . . . With regard to any
such inference you must reason with care.
You may not draw this inference or knowledge
from negligence or mistake. I instruct you
that negligence, even gross negligence, is
not a proper basis to support a finding of
wilfulness, or to support a finding of
knowledge, nor is error or mistake . . . I'm
not suggesting one way or the other how you
should find with respect to this matter. I
am not suggesting that you make any such
finding, or that if you do, what the finding
should be. I'm simply telling you . . . that
you may infer knowledge if you find willful
blindness to a fact to have occurred.
This instruction clearly did not mandate a finding of knowledge
on the part of the jury.
Jones objects that the court failed to utilize the
instructions on willful blindness which the defendant offered,
arguing that his wording "more properly put such instruction in
the proper context for the jury." The failure to give a
requested jury instruction is reversible error only if "the
requested instruction is substantially correct, was not
substantially covered in the charge actually given, and covers an
important point in the trial so that the failure to give it
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seriously impaired the defendant's ability to present a given
defense." United States v. Nason, No. 92-2303, slip op. at 11
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(1st Cir. July 9, 1993) (citing United States v. Newton, 891 F.2d
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944, 949 (1st Cir. 1989)). Jones' argument fails under this
test. Although his requested instruction is substantially
correct, Jones fails to point out in what manner his instructions
were superior to those given, and a comparison of the two sets of
instructions shows no material difference in what was conveyed to
the jury. There is no suggestion that an important point was not
conveyed by the given instructions. We find no error in the
judge's declining to adopt Jones' suggested instructions.
C. Sufficiency of the Evidence
C. Sufficiency of the Evidence
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Jones argues that there was insufficient evidence to
sustain his conviction. In order to successfully challenge the
sufficiency of the evidence on appeal, a defendant must show that
no reasonable jury could have found him guilty beyond a
reasonable doubt. United States v. Innamorati, 996 F.2d 456, 469
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(1st Cir. 1993). On appeal, we must view the evidence in the
light most favorable to the government, "drawing all plausible
inferences in its favor and resolving all credibility
determinations in line with the jury's verdict." United States
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v. David, 940 F.2d 722, 730 (1st Cir.), cert. denied, U.S.
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(1991). We will examine the conspiracy and bank fraud charges in
turn.
1. Conspiracy Charge
1. Conspiracy Charge
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Conviction of conspiracy requires proof that the
defendant entered into an agreement with another to commit a
crime; the agreement need not be express but may be implicit in a
working relationship. Innamorati, 996 F.2d at 470. The
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government must prove two kinds of intent: intent to agree and
intent to commit the crime. However, "[t]he government need not
prove that a co-conspirator knew all of the details or
participated in all of the objectives of the plan." United
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States v. G mez-Pab n, 911 F.2d 847, 853 (1st Cir. 1990), cert.
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denied, 498 U.S. 1074 (1991) (citations omitted).
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In order to convict Jones of conspiracy to commit bank
fraud,3 the prosecution must show that Jones and Welch agreed to
defraud Patriot Bank and Berkshire County Savings Bank. Jones
argues that the fraud perpetrated upon the banks was completed on
July 23, 1987, when the forged UCC-3 forms were filed with the
Maine Secretary of State, and that the only direct evidence
connecting Jones to any fraudulent activity was the opinion
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3Our disposition of this appeal renders moot any discussion
of the part of the charge for conspiracy to transport forged
securities in interstate commerce. For that reason, we limit the
analysis to the sufficiency of the charge for conspiracy to
commit bank fraud.
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letter dated August 10, 1987. This claim, however, ignores the
evidence that Jones knew about the possibility of the sale and
lease back arrangement, and discussed with Welch the need to
obtain releases from the two banks. From this, the jury could
have inferred that even if Jones did not have actual knowledge
that Welch was forging the UCC-3 forms, he knew that there was a
need to obtain a release from the banks, he was aware that the
bank would not allow such a release unless the mortgage was paid
in full, and he knew that somehow Welch was going to "take care
of it." Based on this evidence, a reasonable jury could conclude
that even if there was no express agreement, Jones sat passively
by and let his partner proceed with the sale and lease back,
knowing that the transaction could not be completed legally and
would effect a fraud on the new lender.
2. Bank Fraud Charges
2. Bank Fraud Charges
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In order to convict Jones of bank fraud under 18 U.S.C.
1344(1), the jury had to find beyond a reasonable doubt that
Jones "engaged in or attempted to engage in a pattern or course
of conduct designed to deceive a federally chartered or insured
financial institution into releasing property, with the intent to
victimize the institution by exposing it to actual or potential
loss." United States v. Ragosta, 970 F.2d 1085, 1089 (2d Cir.),
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cert. denied, U.S. (1992) (quoting United States v.
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Stavroulakis, 952 F.2d 686, 694 (2d Cir. 1992)). The element of
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intent can be established through circumstantial evidence and
inferences drawn from evidence presented at trial. Id. at 1090.
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The same evidence which serves to sustain a conviction
for conspiracy to commit bank fraud will suffice to affirm Jones'
conviction for bank fraud under a willful blindness theory.
Jones knew that a sale and lease back of the furniture, fixtures,
and equipment was being planned. He knew that Kansallis required
a release of the banks' interest and that such a release would
not be granted unless the mortgage was paid off. Even if, as
Welch testified, Jones never found out about the forgery and just
trusted Welch to work out a deal which would provide the
desperately needed cash, a rational jury could have concluded
that Jones deliberately shut his eyes to what was occurring.
"The purpose of the willful blindness theory is to impose
criminal liability on people who, recognizing the likelihood of
wrongdoing, nonetheless consciously refuse to take basic
investigatory steps." United States v. Rothrock, 806 F.2d 318,
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323 (1st Cir. 1986). The evidence presented at trial was
sufficient for a conviction on the counts of bank fraud.
D. Motion to Sever
D. Motion to Sever
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Jones moved for severance of his trial from that of
codefendant Welch under Fed. R. Crim. P. 14.4 The court denied
his motion, holding that Jones failed to persuasively demonstrate
that he would incur prejudice at trial as a result of the
joinder. Jones appeals the denial, arguing that he was a victim
of the prejudicial spillover of evidence against his codefendant,
who had already pled guilty to the substantive counts charged.
In addition, Jones suggests that the jury may have held him to a
higher standard than Welch since Jones was an attorney. Finally,
Jones argues that the joinder improperly placed him in a position
where, in order to exercise his Fifth Amendment privilege against
self-incrimination, he was forced to accept an adverse jury
inference.
The grant or denial of a motion for severance is left
to the discretion of the trial court and will only be disturbed
for an abuse of that discretion. United States v. Porter, 764
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F.2d 1, 12 (1st Cir. 1985). For reasons of judicial economy, co-
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4Fed. R. Crim. P. 14 provides in part:
If it appears that a defendant or the
government is prejudiced by a joinder of
offenses or of defendants in an indictment or
information or by such joinder for trial
together, the court may order an election or
separate trials of counts, grant a severance
of defendants or provide whatever other
relief justice requires.
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conspirators are generally tried together absent a strong showing
of prejudice. United States v. Perkins, 926 F.2d 1271, 1280 (1st
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Cir. 1991). In order to obtain a severance, a defendant must
show that substantial prejudice, amounting to a miscarriage of
justice, would result from a joint trial. United States v.
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Sabatino, 943 F.2d 94, 96 (1st Cir. 1991). Mere speculative
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allegations as to possible prejudice from joinder do not sustain
the burden of showing an abuse of discretion in denying a motion
for severance.
Jones failed to show that the presence of Welch at
trial was so prejudicial as to warrant severance. Welch argued
at trial that there was no conspiracy between Jones and him
because Welch operated on his own to perpetrate the fraud upon
the banks and the transportation of the forged documents.
Several times on the stand Welch emphasized that he was the only
one responsible for the criminal acts. Such evidence could only
be helpful to Jones' claim that he had no knowledge of Welch's
activity.
Jones' claim of a spillover effect is also unavailing.
The danger which is to be prevented is that the jury will be
unable to separate the evidence against different defendants or
that evidence which is admissible against only one defendant will
be used by the jury against a co-conspirator. See Perkins, 926
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F.2d at 1281. Usually, however, any prejudice caused by joinder
is best dealt with through instructing the jury to give
individual consideration to each defendant. United States v.
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Bruner, 657 F.2d 1278 (D.C. Cir. 1981). Here, there is no
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evidence, and Jones has not identified any, that the jury was
unable to evaluate separately and fairly the guilt or innocence
of each defendant. The judge instructed the jury that a guilty
plea by Welch could not be considered as evidence against Jones,
and also noted that each defendant should be given separate
consideration. He informed the jury that any evidence which was
admitted solely against one defendant could not be considered
against the other defendant.
Jones argues that the jury may have held him to a
higher standard of conduct than Welch because he is an attorney.
However, Jones presents no evidence that his occupation caused
the jury to view him more harshly. In any event, Jones could
have requested a special jury instruction that attorneys are held
to the same standard of conduct as others, and failed to do so.
See United States v. Picciandra, 788 F.2d 39, 46 (1st Cir.),
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cert. denied, 479 U.S. 847 (1986).
____________
Finally, Jones claims that the joinder, combined with
the willful blindness instruction, forced him to risk an adverse
inference on the part of the jury by exercising his Fifth
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22
Amendment privilege not to testify. In Porter, we rejected the
______
argument that the antagonistic defense of a codefendant was
grounds for severance of trial because it would force the
defendant to testify in violation of the Fifth Amendment. 764
F.2d at 14. The need for severance to protect Jones' Fifth
Amendment rights was even more minimal, since Welch's defense was
completely in line with Jones' claim of innocence. The joinder
had no impact on Jones' Fifth Amendment rights and there was no
abuse of discretion in the trial court's refusal of the motion to
sever.
E. Severity of Sentence
E. Severity of Sentence
____________________
Jones objects to the length of the fifteen-year
sentence by the trial court. He argues that a five-year sentence
would be appropriate for a first time offender such as himself.
Because we reverse Jones' conviction for the interstate
transportation of forged securities, his sentence is reduced to
five years for conspiracy to commit bank fraud and five years
each for two counts of bank fraud, to be served concurrently. We
see no reason to alter Judge Carter's assessment and pre-
guideline sentencing on Counts I, II, and III. Therefore, the
sentence on the remaining counts will stand as crafted by the
trial judge. See United States v. Jim nez-Rivera, 842 F.2d 545,
___ ________________________________
548 (1st Cir.), cert. denied., 487 U.S. 1223 (1988).
____________
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III.
III.
Conclusion
Conclusion
__________
Because we hold that a UCC-3 is not a "security" for
the purpose of 18 U.S.C. 2314, Jones' conviction on Counts IV
and V for the interstate transportation of forged securities is
reversed. Sufficient evidence was adduced at trial to convict
reversed
________
Jones of conspiracy and bank fraud on Counts I, II, and III, and
the trial court did not abuse its discretion by denying the
motion to sever Jones' trial from that of his codefendant. For
these reasons, Jones' convictions for conspiracy and bank fraud
are affirmed.
affirmed
________
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24
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