F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 26 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 01-3250
vs. (D.C. No. 99-10155-01)
(D. Kan.)
JANET E. LESTER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, BALDOCK, and KELLY, Circuit Judges.
Defendant-Appellant Janet E. Lester was convicted after jury trial on
seventeen counts of transportation of stolen securities, 18 U.S.C. § 2314, and ten
counts of uttering and possessing forged securities in violation of 18 U.S.C. §
513. The district court sentenced Mrs. Lester to a term of imprisonment of 37
months after applying enhancements for abusing a position of trust and for
obstruction of justice. We have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a) and we affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Background
Mrs. Lester worked in the position of office manager, and eventually
controller, for U-STOR Mid States Management, Inc. (UMMI) in Valley Center,
Kansas. UMMI provides management services, including bookkeeping and
accounting functions, for sixteen mini-storage properties in Oklahoma, Texas, and
Louisiana. Mrs. Lester was responsible for entering income and expense figures
for each property and for preparing appropriate financial statements, all on
UMMI’s computerized bookkeeping system. In addition, she reconciled UMMI’s
checking accounts and monthly operating statements, and prepared tax reports.
Donald Hayes, UMMI’s manager, placed Mrs. Lester in charge of the office
when his absence necessitated it and gave her supervisory authority over two part-
time employees. Late in 1998, Mr. Hayes became aware that one of the properties
showed less income than he expected. After directing one of the part-time
employees to investigate the matter, Mr. Hayes learned that Mrs. Lester had
understated deposits to checking accounts and overstated outgoing checks. This
investigation also led to the discovery that several of the checking account
statements and cancelled checks related to the properties were missing. Mr.
Hayes’s search of Mrs. Lester’s trash bag yielded cancelled checks, bank
statements, and other documents related to UMMI’s checking accounts.
Through this investigation, Mr. Hayes gathered that Mrs. Lester had been
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writing herself, and credit card companies with which she had accounts, checks
and then covering the shortfall through her control of the bookkeeping duties.
She was able to obtain these checks by requesting Mr. Hayes to sign blank checks
that she would purportedly use to pay bills on those occasions when he was out of
the office. The evidence adduced at trial revealed that Mrs. Lester had used this
scheme to write 296 checks to herself or her credit card companies totaling
$471,969.08.
The results of this investigation led eventually to the return of a
superseding indictment charging Mrs. Lester with seventeen counts of unlawfully
transporting a falsely made security, 18 U.S.C. § 2314, eleven counts of uttering
and possessing a forged security (the government subsequently dismissed one of
these counts by motion), 18 U.S.C. § 513, and eight counts of money-laundering,
18 U.S.C. § 1956(a)(1)(B)(i). After a three-day trial, a jury found Mrs. Lester
guilty on all counts of unlawfully transporting a security and of uttering and
possessing a forged security, but acquitted her on the money-laundering counts.
The resulting sentence was thirty-seven months of imprisonment, three years of
supervised release, and restitution.
Discussion
On appeal, Mrs. Lester asserts the district court erred by: (1) instructing the
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jury improperly on the terms “falsely made” and “forged”; (2) refusing to allow
Mrs. Lester to invoke her Fifth Amendment right against self-incrimination during
cross-examination; (3) denying her motion for a new trial based on the
prosecutor’s improper expression of opinion on Mrs. Lester’s credibility during
closing argument; and (4) enhancing Mrs. Lester’s sentence two levels for
obstruction under United States Sentencing Guidelines (“U.S.S.G.”) § 3C1.1.
Jury Instructions
We review jury instructions as a whole and apply a de novo standard of
review in determining the propriety of an individual jury instruction to which
objection was made at the time of trial. United States v. Mullins, 4 F.3d 898, 900
(10th Cir. 1993). We determine whether the jury, considering the instructions as
a whole, was misled and will not disturb the judgment unless we have substantial
doubt that the jury was guided fairly. Id. (internal citations omitted).
Mrs. Lester was charged with violating 18 U.S.C. § 2314, which states in
pertinent part: “Whoever, with unlawful or fraudulent intent, transports in
interstate . . . commerce any falsely made, forged, altered, or counterfeited
securities . . . knowing the same to have been falsely made, forged, altered, or
counterfeited . . . [s]hall be fined . . . or imprisoned not more than ten years, or
both.” Mrs. Lester claims the district court erred in instructing that “a check may
be ‘falsely made’ if the check was made payable to an unauthorized payee.” I R.
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Doc. 32 (Jury Instruction No. 14). Instead, Mrs. Lester suggests that the law in
this Circuit holds that a document genuine on its face is not made false because of
its content or purpose. See Marteney v. United States, 216 F.2d 760 (10th Cir.
1954). This argument is unavailing.
To begin, the holding in Marteney built on the premise that “the words
‘falsely made’ and ‘forged’ are homogeneous, partaking of each other.” Id. at
763. The Supreme Court rejected just such a construction in Moskal v. United
States, 498 U.S. 103 (1990), where it stated that equating “falsely made” with
“forged” or “counterfeited” violated “the established principle that a court should
give effect, if possible, to every clause and word of a statute.” Id. at 109 (internal
quotations omitted). Thus, the Court concluded that a “title-washing” scheme,
where the perpetrators procured genuine Pennsylvania automobile titles by first
obtaining Virginia titles reflecting rolled-back odometer mileage figures, fell
within the ambit of transporting “falsely made” securities under § 2314. Id. at
105–06. According to the Court, “[s]uch titles are ‘falsely made’ in the sense that
they are made to contain false, or incorrect, information.” Id. at 109. Similarly,
we approved a jury instruction that allowed a jury to find an otherwise genuine
check to be “falsely made” under § 2314 if it “was drawn on a closed account.”
United States v. Phillips, 869 F.2d 1361, 1364 (10th Cir. 1988).
In this case, Mrs. Lester was not authorized to complete the checks in
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question as she did. She transported checks made payable to unauthorized payees
for unauthorized amounts. See United States v. Gartmon, 146 F.3d 1015, 1024
(D.C. Cir. 1998) (affirming conviction under § 2314 for scheme involving checks
written to actual individuals, but without authorization). A check completed
fraudulently as payable to an unauthorized payee certainly fits within the category
of an instrument that is “made to contain false, or incorrect, information.”
Moskal, 498 U.S. at 109; see also United States v. Hagerty, 561 F.2d 1197, 1199
(5th Cir. 1977) (concluding that “falsely made” includes filling in the drawee
information without authorization). In light of these authorities, we conclude that
the district court’s definition of “falsely made” fairly guided the jury in
determining whether Mrs. Lester violated § 2314. As to Mrs. Lester’s one-
sentence claim that such a construction makes a federal crime of simple
embezzlement and thereby over-extends Congressional authority, we deem it
waived for want of briefing. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679
(10th Cir. 1998) (arguments inadequately briefed in opening brief are waived).
Mrs. Lester also argues that the district court erred in not adopting her
proposed instructions 2, 5, and 6. To the extent she argues that they should
replace the district court’s “falsely made” instruction discussed above, we reject
that argument. To the extent that she claims the district court erred in instructing
the jury regarding the term “forged,” we note that the district court’s instruction
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on the term mirrors the exact language used in 18 U.S.C. § 513. See I R. Doc. 32
(Jury Instruction No. 13). Thus, her claim that a different definition of “forged”
should have been submitted to the jury could only relate to the term as it is used
in § 2314. This argument must fail because the indictment charged Mrs. Lester
with transporting “falsely made” securities in violation of § 2314, not “forged”
securities. As such, the district court did not err in refusing to give Mrs. Lester’s
proposed instructions 2, 5, and 6.
Self-Incrimination
Through direct examination by her counsel, Mrs. Lester testified that many
of the checks written to her actually represented bonuses or reimbursements for
various expenses. According to her testimony, Mr. Hayes paid Mrs. Lester this
extra money in part to ensure that she not reveal information regarding alleged
illicit affairs in which he was engaged. On cross-examination, the government
questioned Mrs. Lester regarding her federal income tax returns and whether she
had reported any of the alleged bonuses as income. The court interrupted the
cross-examination and provided Mrs. Lester with warnings similar to those the
Supreme Court outlined in Miranda v. Arizona, 384 U.S. 436 (1966), after
realizing that her Fifth Amendment right to self-incrimination might be implicated
by this line of questioning.
Following a recess to allow both parties to do some research on the issue,
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the court refused to allow Mrs. Lester to assert her right against self-incrimination
on the ground that she had waived the right to the extent the cross-examination
questioning was relevant to issues raised through direct examination. Mrs.
Lester’s defense counsel moved for a mistrial based on this refusal, but the court
denied the motion on the ground that the tax returns provided information that
was inconsistent with Mrs. Lester’s claims on direct examination that she was
entitled to the money.
We review the trial court’s evidentiary rulings using an abuse of discretion
standard of review. 1 See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–42 (1997).
Mrs. Lester claims that the district court’s refusal to allow Mrs. Lester to invoke
her Fifth Amendment privilege violated Fed. R. Evid. 608, the last sentence of
which reads: “The giving of testimony . . . does not operate as a waiver of the . . .
privilege against self-incrimination when examined with respect to matters which
relate only to credibility.”
While the government’s questioning of Mrs. Lester regarding her tax
returns clearly implicated her credibility, it is indisputable that the questioning
bore directly on her claims that she was entitled to the checks and that they
1
Our review of the record indicates that Mrs. Lester’s defense counsel did
not make a contemporaneous objection to the court’s denial of her Fifth
Amendment privilege. Both parties appear to agree, however, that the standard of
review is abuse of discretion. Moreover, we would achieve the same result using
either plain error or abuse of discretion standards of review.
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represented additional income to her. Thus, the questioning did not relate “only
to credibility” and no violation of Rule 608 occurred. See United States v.
Blankenship, 746 F.2d 233, 238 n.1 (5th Cir. 1984) (noting that Rule 608 “has
nothing to do with the scope of a testifying defendant’s waiver of the privilege
with respect to the crime with which he is charged”). “It is well established that a
witness, in a single proceeding, may not testify voluntarily about a subject and
then invoke the privilege against self-incrimination when questioned about the
details.” Mitchell v. United States, 526 U.S. 314, 321 (1999). Indeed, a
defendant “cannot reasonably claim that the Fifth Amendment gives him . . . an
immunity from cross-examination on the matters he has himself put in dispute.”
Brown v. United States, 356 U.S. 148, 155–56 (1958). We conclude that the
questioning of Mrs. Lester regarding her tax returns was well within the scope of
cross-examination, related to more than just credibility, and it was therefore not
an abuse of discretion for the district court to refuse to allow Mrs. Lester to
invoke her privilege against self-incrimination.
Prosecutor’s Statements Regarding Mrs. Lester’s Credibility
During closing argument, the prosecutor made several statements regarding
Mrs. Lester’s credibility. On appeal, Mrs. Lester claims that the district court’s
denial of her motion for a new trial based on the following statements constituted
reversible error:
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The defendant’s story simply doesn’t make sense, but not only does
it not make sense, it’s a lie. You can’t believe anything she said.
Why? Because she’s a liar and she lies under oath . . . .
IV R. Doc. 78 at 377–78.
The defendant has no credibility in this case. One thing that
people think of sometimes when you hear an inconsistent story over
here and another one up there is asking the question, “Were you
lying then or are you lying now?”
Id. at 379.
The district court sustained defense counsel’s objection to the first statement, but
the record indicates no objection was made to the second statement. The district
court did instruct the jury, however, that “[t]he lawyers’ statements, objections
and arguments are not evidence,” and that “[the jury members] are the sole judges
of the credibility or ‘believability’ of each witness and the weight to be given to
the witness’s testimony.” I R. Doc. 32 (Jury Instruction Nos. 4 & 5). Mrs. Lester
filed a motion for a new trial based in part upon these statements; the trial court
denied the motion in a written order. See I R. Doc. 50.
Where a defendant makes a contemporaneous objection to a prosecutor’s
closing argument, and subsequently moves for a new trial based, in part, on
allegations of prosecutorial misconduct, we review the district court’s denial of
such motion for an abuse of discretion. United States v. Broomfield, 201 F.3d
1270, 1276 (10th Cir. 2000). Thus, Mrs. Lester’s submission that we should
adopt a per se rule reversing all convictions involving a prosecutor’s misconduct
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runs contrary to our precedent. See United States v. Hernandez-Muniz, 170 F.3d
1007, 1012 (10th Cir. 1999) (“We have not, however, established that referring to
testimony as a lie constitutes per se prosecutorial misconduct.”). Our cases hold
that improper statements by a prosecutor warrant a new trial only where they
influenced the jury’s verdict. See Broomfield, 201 F.3d at 1276–77; United
States v. Oles, 994 F.2d 1519, 1524 (10th Cir. 1993). Moreover, “a criminal
conviction is not to be lightly overturned on the basis of a prosecutor’s comments
standing alone, for the statements or conduct must be viewed in context,” United
States v. Young, 470 U.S. 1, 11 (1985), including a review of “the strength of the
evidence against the defendant, whether curative instructions were given, and
whether the prosecution was responding to an attack made by defense counsel.”
Oles, 994 F.2d at 1524.
The government claims that the prosecutor’s comments were largely a
response to defense counsel’s “vicious attacks” on the credibility of its own
witness, Mr. Hayes. According to the government, these attacks included
statements such as:
Unless you can say, “I believe everything that Donald Hayes
says beyond a reasonable doubt”—and that answer is pretty easy
because he’s the only one, he’s the only one that bolsters that count.
IV R. Doc. 78 at 371–72
One method [to review the evidence] would be look to see whether
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or not Mr. Hayes was out of town or present . . . What does that
mean? Means you can’t trust that testimony, doesn’t it?
Id. at 373–74.
Defense counsel’s comments do not appear to be vicious and are more akin to
requests to the jury to weigh the testimony in light of the other evidence in the
case. The government’s attempt to justify the prosecutor’s comments based on
these statements seems farfetched.
Be that as it may, our review of the prosecutor’s comments, in the context
of the entire case, leads us to conclude that they did not improperly influence the
jury. While we do advise the prosecutor to avoid direct accusations of mendacity,
“‘we are confident that the statements in this case would have been perceived
only as commentary on the implausibility of the defendant’s story.’” United States
v. Robinson, 978 F.2d 1554, 1567 (10th Cir. 1992) (quoting United States v.
Garcia, 818 F.2d 136, 143–44 (1st Cir. 1987)). Given that the district court
sustained defense counsel’s objection, the district court provided jury instructions
that cured the improper comments, and the other evidence in the case, we
conclude that the prosecutor’s comments “did not affect the ‘fundamental ability
of the jury to weigh the evidence fairly.’” Oles, 994 F.2d at 1524 (quoting
Hopkinson v. Shillinger, 866 F.2d 1185, 1210 (10th Cir. 1989)).
Sentencing Enhancement for Obstruction
Mrs. Lester appeals the district court’s determination that she had not been
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truthful in her testimony, resulting in the district court’s application of U.S.S.G. §
3C1.1, an enhancement for obstruction of justice, to increase her total offense by
two levels. At sentencing, the district court stated in response to defense
counsel’s objection to the enhancement:
[M]y reading is that she had, in fact, testified at an unemployment
hearing under oath that the checks were written as bonuses. At trial
she took the position that they were not only bonuses but she was
writing checks to Mr. Hayes in order to pay for women and so forth
that, in fact, he was procuring on the side.
IV R. Doc. 78 at 393.
It’s one thing to tell the government to prove it and I think it’s quite
another thing to make an effort to lead folks down the wrong path.
I think in this circumstance that Mrs. Lester did, in fact, cross the
line. And if she hadn’t had this obstruction I think it certainly
would have been within the realm of possibility that she could have
received an enhancement frankly for perjury. I’m not satisfied from
having heard her testimony at trial that she did, in fact, tell the truth
about that situation. And the fact that she claimed bonuses of
$120,000 in one year, given the income of these rental units, to me
just flies in the face of all reason and common sense. . . . She made
an effort to try and mislead and misdirect people . . . .
Id. at 394–395. Because obstruction of justice includes perjured testimony at
trial, United States v. Chavez, 229 F.3d 946, 955 (10th Cir. 2000), the district
court overruled Mrs. Lester’s objection to the two-level sentencing enhancement.
Mrs. Lester asserts that the district court did not clearly state its basis for
applying the § 3C1.1 enhancement and that we should remand for resentencing
without the enhancement. The Supreme Court stated in United States v.
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Dunnigan, 507 U.S. 87, 94 (1993), that perjury occurs when a witness, under oath,
“gives false testimony concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confusion, mistake, or faulty
memory.” To avoid an automatic finding of perjury every time a defendant takes
the stand, denies guilt, and is then subsequently found guilty, however, the trial
court must make findings independent of the verdict that identify the specific
testimony at issue and establish that it constituted perjury. See id. at 95; see also
United States v. Weller, 238 F.3d 1215, 1222 (10th Cir. 2001). In reviewing
these findings, we defer to the district court’s ability to judge the credibility of
witnesses and recognize that it was entitled to weigh Mrs. Lester’s testimony
against other evidence in the record. Weller, 238 F.3d at 1222. Giving the proper
deference owed to the district court in making its determination, we conclude that
the district provided adequate justification, including Mrs. Lester’s prior
conflicting statements, to apply the enhancement under § 3C1.1.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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United States v. Lester
Court: Court of Appeals for the Tenth Circuit
Date filed: 2002-06-26
Citations: 42 F. App'x 257
Copy CitationsCombined Opinion