United States Court of Appeals
For the First Circuit
No. 02-1098
UNITED STATES,
Appellee,
v.
FELIX DONNAT,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U. S. District Judge]
Before
Boudin, Chief Judge,
John R. Gibson,* Senior Circuit Judge,
and Torruella, Circuit Judge.
Bjorn Lange, Assistant Federal Public Defender, on brief, for
appellant.
Mark E. Howard, Assistant United States Attorney, on brief,
for appellee.
November 20, 2002
*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
JOHN R. GIBSON, Senior Circuit Judge. Felix Donnat
appeals from his conviction for bank fraud under 18 U.S.C. § 1344
(2000) and possession of a United States Treasury check bearing a
forged endorsement under 18 U.S.C. § 510(b) (2000). Donnat argues
that there was insufficient evidence of his intent to defraud to
support a conviction under § 1344 and that he should not have been
convicted under § 510(b) because he did not know that the
endorsement on the Treasury check in his possession had been
forged. He also contends that he is entitled to a new trial on the
grounds that the prosecutor violated Doyle v. Ohio, 426 U.S. 610
(1976), by asking him why he did not contact the Secret Service
with an exculpatory story he first told at trial that was
inconsistent with a story he told the Secret Service after his
arrest. We reject these arguments and affirm his conviction.
I.
Felix Donnat is a Haitian citizen who had been living in
the United States for twelve years. On January 27, 2001, Donnat
deposited a United States Treasury check payable to the Lewis
Austin Weeks Trust in the amount of $888,023.78 into his own
checking account at the Citizen's Bank in Manchester, New
Hampshire. The Lewis Austin Weeks Trust is a private trust managed
by Citibank for the benefit of, among others, Lewis Austin Weeks,
who is also its co-trustee. At no time did Donnat know anyone
named Lewis Austin Weeks, nor did he have any connection to the
-2-
Lewis Austin Weeks trust. The manager of the trust testified that
at this time the trust was expecting a tax refund in this amount.
On the reverse side of the check, two lines were printed
in handwritten manuscript:
Pay to the order of Donnat Felix
Lewis Austin
Just below this, Donnat signed his name.
There is no dispute that the printed name "Lewis Austin"
was a forgery and was not the endorsement of anyone authorized to
negotiate the check. The payee named on the check was the Lewis
Austin Weeks Trust, not "Lewis Austin." The trust manager also
testified that Lewis Austin Weeks always signed his name "L. Austin
Weeks."
Citizen's Bank refused to accept Donnat's deposit. The
bank's branch manager froze both Donnat's checking and savings
accounts at the bank, refused to conduct any further business with
Donnat, and on January 30, 2001, contacted the Secret Service,
which commenced an investigation.
A grand jury indicted Donnat on one count of bank fraud
under 18 U.S.C. § 1344 and one count of possession of a United
States Treasury check bearing a falsely made or forged endorsement
under 18 U.S.C. § 509(b).
Two days later, a Secret Service agent arrested Donnat.
-3-
Donnat was informed of his Miranda rights and signed a waiver
consenting to speak to the agent without counsel. The agent
questioned Donnat in the agent's vehicle while traveling to the
Merrimack County Jail. After arriving at the jail, the agent
prepared a written statement from Donnat's answers, which Donnat
reviewed, acknowledged, and signed. Donnat stated that he had
received the check in December, 2000 from an individual named
"Patrick," whom he had met one night at a Manchester nightclub
where Donnat worked as a cook and a disc jockey. Patrick asked
Donnat to deposit the treasury check in Donnat's bank account.
Patrick told Donnat that he would be able to keep five thousand
dollars, so long as he sent Patrick the remainder of the proceeds
in periodic installments of ten or twenty thousand dollars. Donnat
told the agent that he saw Patrick print the name "Lewis Austin"
across the back of the check and write "pay to the order of Donnat
Felix" above this endorsement.
Donnat did not object to either the admission of this
written statement or the agent's testimony about the interview.
However, Donnat testified that he was given the check not by
Patrick but by a different individual named "Carlos," whose real
name was Pegui Loubens and whom he identified as a business
associate of his brothers. He said that Carlos asked him to
deposit the check in his account and that "as a friend, I thought
I would do him a favor." He stated that the endorsement "Lewis
-4-
Austin" was already printed on the check when he received it and he
did not see Carlos write anything on the check. He also testified
that he himself printed the phrase "Pay to the order of Donnat
Felix" on the back of the check, above "Lewis Austin," before
attempting to deposit the check. He claimed both that he was not
aware that the signature "Lewis Austin" on the back of the check
was a forgery and that he believed that Carlos was entitled to the
check. In all other respects, however, Donnat admitted that the
statement covered everything he said to the agent after his arrest.
The jury found Donnat guilty on both counts. The
district court sentenced Donnat to twenty-four months imprisonment.
Donnat appeals.
II.
Donnat argues that the evidence presented at trial was
insufficient to support a conviction under 18 U.S.C. § 1344 and 18
U.S.C. § 510(b). We will affirm Donnat's conviction if we conclude
that 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 beyond a reasonable doubt." United
States v. Blasini-Lluberas, 169 F.3d 57, 62 (1st Cir. 1999)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
A.
In order to obtain a conviction for bank fraud under 18
U.S.C. § 1344, the government must prove beyond a reasonable doubt
-5-
that the defendant "(1) engaged in a scheme or artifice to defraud,
or made false statements or misrepresentations to obtain money
from; (2) a federally insured financial institution; (3) and did so
knowingly."1 See United States v. Brandon, 17 F.3d 409, 424 (1st
Cir. 1994). Donnat challenges only the jury's finding that he had
the criminal intent required under § 1344, which we have held is
the specific "intent to deceive the bank in order to obtain from it
money or other property." United States v. Kenrick, 221 F.3d 19,
29 (1st Cir. 2000), cert. denied, 531 U.S. 961 (2000); United
States v. Rodriguez-Alvorado, 952 F.2d 586, 589 (1st Cir. 1991).
We conclude that a rational jury could have found that
Donnat executed some scheme or made a misrepresentation to the
Citizen's Bank with the intent to deceive the bank in order to
obtain money. The jury saw Donnat's statement to the Secret
Service agent, in which Donnat said that the treasury check had
been given to him by "Patrick," whom Donnat had seen write the
endorsement "Lewis Austin" on the back of the check. From this
evidence, the jury could have found that Donnat knew that this
endorsement was a forgery. It could have reasonably concluded that
1
18 U.S.C. §1344 provides: "Whoever knowingly executes, or
attempts to execute, a scheme or artifice -
(1) to defraud a 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 financial institution, by means of false or
fraudulent pretenses, representations, or promises; shall be fined
not more than $1,000,000 or imprisoned not more than 30 years, or
both."
-6-
by depositing this forged check into his own account, he intended
to deceive the Citizen's Bank into believing that the check had
been duly negotiated to him and that he was entitled to its
proceeds.
At trial Donnat testified that when he received the check
from "Carlos," it already bore the endorsement "Lewis Austin" and
that he had no idea that this endorsement was a forgery. However,
the jury was free to believe the statement he gave to the Secret
Service agent and dismiss his trial testimony as unworthy of
belief, and we may not reassess the credibility of a witness on
appeal. Rodriquez-Alvorado, 952 F.2d at 589. But even if the jury
believed Donnat's claim that he did not see anyone forge the
endorsement, there was sufficient circumstantial evidence for it to
infer that Donnat participated in a scheme with the intent to
defraud the Citizen's Bank. See Brandon, 17 F.3d at 425 (stating
that fraudulent intent may be established by circumstantial
evidence). Donnat was aware of the extraordinary amount of the
check and that the check was not payable to the person from whom he
had received it. Furthermore, upon receiving the check, he agreed
with another person on a plan to distribute and allocate the
proceeds of the check.
B.
Donnat also contends that there was insufficient evidence
to convict him of knowingly possessing a United States Treasury
-7-
check bearing a forged endorsement under 18 U.S.C. 510(b). 18
U.S.C. 510(b) provides:
Whoever, with knowledge that such Treasury check or bond
or security of the United States is stolen or bears a
falsely made or forged endorsement or signature buys,
sells, exchanges, receives, delivers, retains, or
conceals any such Treasury check or bond or security of
the United States shall be fined under this title or
imprisoned not more than ten years, or both.
Donnat does not challenge the jury's findings that he
possessed a United States Treasury check and that the check
contained a forged endorsement. Rather, he disputes only whether
he knew that this endorsement was a forgery. However, as we have
discussed above, Donnat admitted to the Secret Service agent that
he saw "Patrick" write someone else's name on the back of the
check. This supports the jury's finding that he knew the
endorsement was forged. The jury could have reasonably believed
this account over his later denial of any knowledge of the forgery.
Therefore, we must uphold his conviction under 510(b).
III.
Donnat argues that the prosecutor violated Doyle v. Ohio,
426 U.S. 610 (1975), by commenting on his post-arrest silence and
that he is therefore entitled to a new trial. Towards the end of
cross-examination of Donnat, the prosecutor asked Donnat:
Q: And there's no such person as Patrick. He never
existed.
A: No, sir.
Q: And at no time did you ever contact the Secret
Service after you first gave them a statement and say,
you know, I want to tell you about Carlos?
-8-
Donnat's counsel made a general objection to this last
question, which the court sustained. Donnat's counsel did not
request a curative instruction regarding this question.
Donnat argues that this question violates Doyle because
it was designed to impeach his testimony with his decision to
remain silent after his arrest. His argument has been foreclosed
by the Supreme Court's decision in Anderson v. Charles, 447 U.S.
404 (1979). Doyle forbids a prosecutor from using a criminal
defendant's decision to remain silent at the time of arrest and
after receiving the Miranda warnings to impeach his trial
testimony, since the defendant's exercise of his Miranda rights
would effectively be penalized. Doyle, 426 U.S. at 618. In
Charles, however, the Court held that when a defendant has given a
post-arrest statement to the police, Doyle does not bar a
prosecutor from inquiring about the defendant's failure to tell the
police the exculpatory story he presented at trial, if that story
is inconsistent with the post-arrest statement. Charles, 447 U.S.
at 408-09. Where the defendant elects to speak to the police and
gives statements that he later contradicts at trial, a prosecutor's
inquiry into the defendant's failure to give the exculpatory
account before trial does not draw a negative inference from the
defendant's decision to remain silent but rather from his prior
inconsistent statement. See Charles, 447 U.S. at 409. We noted
in Grieco v. Hall, 641 F.2d 1029, 1034 (1st Cir. 1981), that
-9-
although Charles does not allow full cross-examination about the
defendant's failure to come forward with an exculpatory story
whenever he has made any post-arrest statement, it nevertheless
established that "Doyle will not protect a defendant who chose not
to remain silent after arrest about the subject matter of
statements he later contradicts at trial."
This case clearly falls within the scope of Charles.
Donnat's testimony at trial contradicted the statement he
previously gave to the Secret Service agent. The prosecutor then
questioned Donnat about why he did not tell the police about Carlos
before trial. Under Charles, the question in this case is
permissible because it does not draw meaning from Donnat’s reliance
on his right to remain silent but instead seeks an explanation for
his prior inconsistent statement to the Secret Service agent. See
447 U.S. at 409.
Donnat argues that Charles only allows a prosecutor to
ask this question in order to establish that the defendant made a
prior inconsistent statement. Since he had already admitted that
he made a prior inconsistent statement, he argues that the final
question was designed to impeach his trial testimony only through
his post-arrest silence. We reject this argument, since Charles
specifically allows the prosecutor "to elicit an explanation for a
prior inconsistent statement." Charles, 447 U.S. at 409.
Finally, Donnat argues that the prosecutor's question
-10-
violated the defendant's Sixth Amendment right to counsel by
improperly suggesting that Donnat had an obligation to contact
either the Secret Service or the police without the assistance of
counsel. This claim is without merit. The prosecutor's question
had nothing to do with whether Donnat should or should not have
communicated through counsel. It was not designed to draw a
negative inference from Donnat's exercise of his Sixth Amendment
right to rely on counsel as a medium between him and the State and
thus did not unfairly burden Donnat's Sixth Amendment right to
counsel.
IV.
For the foregoing reasons, we affirm Donnat's conviction
under 18 U.S.C. § 1344 and 18 U.S.C. §510(b).
-11-