USCA1 Opinion
March 5, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_____________________
No. 90-1581
No. 90-1619
UNITED STATES,
Appellee,
v.
HOWARD W. YOUNG,
Defendant, Appellant.
_____________________
ERRATA SHEET
Please make the following corrections to the opinion in the
above case issued on January 28, 1992:
On the cover sheet: add the words "by Appointment of the
Court" after Ms. Berry's name.
Page 14, line 10: replace the period at the end of the
sentence with a semicolon and add the following:
see also United States v. McGill, ____
___ ____ _____________ ______
F.2d ___, ___ (1st Cir. 1992) [No. 91-
1145, slip op. at 3-4]; United States v.
_____________
Dockray, 943 F.2d 152, 155 (1st Cir.
_______
1991). But see, e.g., United States v.
___ ___ ____ _____________
Casperson, 773 F.2d 216, 222-24 (8th
_________
Cir. 1985); United States v. Hopkins,
_____________ _______
744 F.2d 716, 717-18 (10th Cir. 1984)
(en banc). Cf. Green v. United States,
___ _____ ______________
474 U.S. 925 (1985) (White, J.,
dissenting from denial of certiorari and
noting divergence among circuits).
January 28, 1992 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 90-1581
No. 90-1619
UNITED STATES,
Appellee,
v.
HOWARD W. YOUNG,
Defendant, Appellant.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
_____________
____________________
Janis M. Berry by Appointment of the Court with whom Ivan B.
_______________ ________
Knauer and Ropes & Gray were on brief for appellant.
______ ____________
Cerise Lim-Epstein, Assistant United States Attorney, with whom
___________________
Wayne A. Budd, United States Attorney, was on brief for appellee.
_____________
____________________
____________________
BREYER, Chief Judge. Howard Young, a lawyer,
____________
administered Veterans' Administration funds as a guardian
for a disabled World War II veteran. See 38 U.S.C. 5502.
___
A jury, finding that Young wrongly used the veteran's money
for his own purposes, convicted him of embezzlement and mail
fraud. 38 U.S.C. 3501; 18 U.S.C. 1341. The district
court imposed a twelve month prison sentence. Young appeals
his convictions and the sentence. We affirm both.
I
The Facts
_________
The evidence permitted the jury to take the
underlying facts as follows:
1. On July 1, 1970, the Bristol County
Probate Court appointed Young (an attorney and
former judge) guardian for a veteran receiving
benefits from the Veterans' Administration (VA).
2. Young normally kept the veteran's money
invested in safe securities, such as certificates
of deposit, held by Merrill Lynch in a
guardianship account. By the end of 1985, the
veteran's fund amounted to more than $250,000.
3. In August 1985 Young filed a personal
bankruptcy petition.
4. Between June 1986 and June 1987 Young
withdrew about $250,000 from the Merrill Lynch
guardianship account. Young deposited most of
this money in the bank account of Tomar Farms, a
company that invested in racehorses. Young's
daughter owned Tomar Farms, and Young was the
company's president, treasurer, clerk, and sole
director. In return for this money, Tomar Farms
-3-
3
(through Howard Young, its president) signed
promissory notes, to Howard Young as guardian,
paying 12% interest, payable upon maturity two
years later. Tomar Farms also signed a "security
agreement" pledging to the guardian, as security,
a horse called "Supreme Roman" and all other
subsequently acquired "livestock." Tomar Land,
another company that Young operated and his
daughter owned, gave the guardian a second
(unrecorded) mortgage on a farm in Kentucky, which
mortgage (perhaps through inadvertent
misstatement) said that it was security for money
advanced "by Tomar [Farms] to Guardian," rather
than the other way around.
5. In 1986 Tomar Farms bought the horse
Supreme Roman for $175,000, payable over time. It
also invested $28,000 in a racehorse investment
partnership called the "No I Won't Stable." By
the end of 1987, however, Tomar Farms' stable
investments had proved unprofitable: its horse,
Supreme Roman, was repossessed (for Tomar Farms
failed to keep up payments), and Tomar Land had
sold its Kentucky farm.
6. In 1987 the VA noticed that Young had
not filed his guardianship accounting information
for 1986. It sent him a series of letters,
followed by telephone calls, and eventually
obtained a court order requiring him to file the
account by January 1988. In March 1988, he filed
accounting information for both 1986 and 1987, but
he left blank the sections where, in prior
accounts, he had listed the Merrill Lynch
securities. He also left blank the space for his
signature. In April 1988, he supplemented his
1986 and 1987 filings, listing as primary assets
"mortgage secured note[s] receivable." In the
April cover letter, he said that, because of
declining interest rates, he had
decided to transfer the long range
certificates of deposit to a two year
program of real estate and bloodstock
investment [in a company that] . . . has
among its owners certain members of my
-4-
4
family who have expertise in these
areas. This new investment is in the
form of notes payable on September 15,
1988 and secured by mortgages.
In further correspondence with the VA, Young
described the virtues of the "bloodstock"
business, explained that he ran the relevant
corporations (but held no ownership interest), and
he added that Supreme Roman, the Kentucky farm,
and the investment in the No I Won't Stable (which
would, he wrote, "provide total proceeds of
something in excess of $10,000,000") secured the
loans. On June 27, 1988, he wrote the VA that he
was "enclosing" the "real estate mortgage and
Security Agreement that is the formal collateral
for the series of six (6) notes which represent
the money invested."
7. Tomar Farms did not pay back the loans,
nor did it pay interest, and, in October 1988, the
Probate Court appointed a new guardian for the
veteran's estate, which (though the jury did not
learn this) was reimbursed for the loss by a
bonding company.
II
The Meaning of "Embezzlement"
_____________________________
The jury convicted Young of violating 38 U.S.C.
3501(a) (current version at 38 U.S.C. 6101(a)), which
makes it a crime for
a guardian . . . having charge and
custody in a fiduciary capacity of
money . . . paid under any of the
laws administered by the Veterans'
Administration . . . [to] embezzle
or in any manner misappropriate any
such money . . . .
-5-
5
Young says that the evidence does not permit the jury to
find him guilty of violating this statute because he did not
"embezzle" any money. The district court, he adds, did not
understand what "embezzlement" means; it therefore wrongly
permitted the jury to convict him on the basis of evidence
insufficient to show that he did more than make a poor
investment decision.
We disagree. The crime of embezzlement has long
had a clear meaning. In the eighteenth century, English
courts held that only those who took money, not those to
____
whom money was lawfully entrusted, could commit common law
_________
larceny. Rex v. Bazeley, 2 Leach 835, 168 Eng. Rep. 517
___ _______
(1799); see also Rex v. Waite, 1 Leach 28, 168 Eng. Rep. 117
___ ____ ___ _____
(1743). Consequently, Parliament enacted the first
embezzlement statute, designed to prohibit, say, bank
tellers or guardians from converting the (lawfully obtained)
________
money of others to their own use. See Bazeley, 168 Eng. Rep.
___ _______
at 523-24 (discussing statute, 39 Geo. III, c. 85); see
___
generally 3 Charles E. Torcia, Wharton's Criminal Law 395,
_________ ______________________
at 398-402 (1980). More than one hundred years ago, the
Supreme Court referred to embezzlement's "settled technical
meaning," United States v. Northway, 120 U.S. 327, 334
______________ ________
(1887), recently described as "the fraudulent conversion of
-6-
6
the property of another by one who is already in lawful
possession of it." 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law 8.6, at 368 (1986) (numerals
_________________________
omitted).
The notion of "fraudulent conversion," at the
heart of embezzlement, may sound obscure, but, in fact, it
is not. It essentially refers to, say, a bank teller,
trustee, or guardian using money entrusted to him by another
person for his own purposes or benefit and in a way that he
knows the "entruster" did not intend or authorize. Thus,
one basic source says that the
word "conversion" within the meaning of
embezzlement statutes is a fraudulent
appropriation of a thing to one's own
use and beneficial enjoyment, or an
unauthorized assumption and exercise of
dominion or right of ownership over it
in defiance of, or exclusion of, the
owner's rights.
29A C.J.S. Embezzlement 11(a), at 26 (1965) (footnotes
____________
omitted). Another says that "fraudulent conversion" is
fraudulently withholding, converting, or
applying [property that is lawfully in
one's possession] to or for one's own
use and benefit, or to [the] use and
benefit of any person other than the one
to whom the money or property belongs.
Black's Law Dictionary 662 (6th ed. 1990). And cases offer
_______________________
such statements as
-7-
7
The gist of [embezzlement] is the
appropriation to the defendant's own use
of property delivered to him for a
specified purpose other than his own
enjoyment of it.
People v. Parker, 235 Cal. App. 2d 100, 44 Cal. Rptr. 909,
______ ______
914 (3d Dist. 1965) (citing cases). An embezzler, like a
thief or a swindler, may commit the crime in any of a myriad
of different ways. See People v. Swanson, 174 Cal. App. 2d
___ ______ _______
453, 344 P.2d 832, 836 (3d Dist. 1959) ("'There is no
settled mode by which this appropriation must take place,
and it may occur in any one of the numberless methods which
may suggest itself to the particular individual. The mode
of embezzlement is simply [a] matter of evidence.'")
(quoting Leonard v. State, 7 Tex. App. 417, 444 (1879)).
_______ _____
But, in each instance, the embezzler will have acted for his
own purposes and contrary to authorization. He will have
"fraudulently converted" property entrusted to him by
another.
The record here provides more than enough evidence
to permit the jury to find embezzlement. The jury could
conclude that Young was in financial trouble, that the Tomar
companies that his daughter owned were in financial trouble,
and that Young wanted to find money for those firms, to help
his family, and thereby to help himself. The jury could
-8-
8
also conclude that his use of the guardianship money for
this purpose was not authorized, and was contrary to the
intent of the "entruster," because (1) the investment was
unusually risky, and (2) the investment created an obvious
conflict between, on the one hand, his desires as a parent
and duties as a corporate officer (to obtain ready financing
for the companies), and, on the other, his obligations as a
guardian (to invest soundly for the benefit of the veteran).
See Johnson v. Witkowski, 30 Mass. App. Ct. 697, 573 N.E.2d
___ _______ _________
513, 519, review denied, 411 Mass. 1104, 581 N.E.2d 481
______ ______
(1991); Whitney v. Whitney, 317 Mass. 253, 57 N.E.2d 913,
_______ _______
916 (1944) ("'The law frowns upon any act on the part of a
fiduciary which places interest in antagonism to duty, or
tends to that result.'") (quoting North Carolina R.R. Co. v.
_______________________
Wilson, 81 N.C. 223, 230 (1879)); George G. Bogert & George
______
T. Bogert, The Law of Trusts and Trustees 543(J), at 308-
______________________________
09 (1978); 90 C.J.S. Trusts 248(a), at 247 (1955)
______
("trustee must act for the beneficiaries, and not for
himself in antagonism to the interests of the beneficiaries;
he is prohibited . . . from placing himself in any position
where his self-interest will, or may, conflict with his
duties as trustee") (citing cases).
-9-
9
The jury could conclude that Young acted
fraudulently because, among other things, his letters and
responses to the VA state, or imply, that he held good
security for the loans, long after that security (the horse
Supreme Roman and the Kentucky farm) had become worthless.
Above all, the jury could find that Young knew
____
that he was acting contrary to the VA's intent and to his
authority to invest the veteran's money because: (1)
Young's conduct clearly violated his fiduciary obligations.
See, e.g., In re Estate of Stowell, 595 A.2d 1022, 1025 (Me.
___ ____ _______________________
1991) (fiduciary may not lend to himself); Attorney General
________________
v. Flynn, 331 Mass. 413, 120 N.E.2d 296, 302 (1954) (same);
_____
Attorney Grievance Comm'n v. Pattison, 292 Md. 599, 441 A.2d
_________________________ ________
328, 332 (1982) ("fiduciary may not make a loan, secured or
unsecured, unto himself"); Restatement (Second) of Trusts
_______________________________
170(1), comment l, at 369 (1959) (trustee cannot "lend
trust money to himself"); 2A Austin W. Scott & William F.
Fratcher, The Law of Trusts 170.17, at 385-86 (4th ed.
__________________
1987) ("trustee cannot properly lend trust funds to himself.
This is true even though by the terms of the trust he is
given the widest powers of investment.") (citing cases).
(2) The jury knew that Young was an attorney, and attorneys
normally understand the rudiments of fiduciary obligation.
-10-
10
And, (3) the jury also knew of Young's long delays in
responding to VA inquiries. Those delays, and the nature of
the ultimate responses, also could indicate Young's
knowledge that what he was doing was wrong. See United
_________ ___ ______
States v. Strickland, 509 F.2d 273, 276 (5th Cir. 1975) (in
______ __________
3501 prosecution, "concealment and falsification may
reveal a consciousness of guilt and so help to carry the
prosecutor's burden, or indeed, as to intent, may carry it
alone").
From this evidence, the jury could reasonably
conclude that Young (1) intentionally used the veteran's
_____________
money, of which he was guardian, (2) for his own benefit and
___
purposes and (3) contrary to the intent or authorizations of
________
the guardianship. He thereby "fraudulently converted" that
money and therefore is guilty of embezzlement.
Young makes several additional, unconvincing
arguments to the contrary. First, he says that, ex ante,
__ ____
one might have thought his investments would not fail, that
he did not "appropriate" the money but simply "borrowed" it,
and that, at worst, he committed a civil, not a criminal,
wrong. The success or failure of the investments, however,
is beside the point; a bank teller who plays the horses with
the bank's money has embezzled it, even if he wins and
-11-
11
replenishes the till, even with interest. Young's borrowing
_________
of the money is what constitutes the misappropriation. And,
it is well established that the use of loan documents will
not legitimate acts otherwise constituting embezzlement.
See, e.g., Young v. State, 44 Ohio App. 1, 184 N.E. 24, 27
___ ____ _____ _____
(1932) ("The giving of a note for money received from
another, if a mere incident to the carrying out of a
fraudulent scheme, does not prevent the act from being an
embezzlement.") (citation omitted); Stecher v. State, 202
_______ _____
Wis. 25, 231 N.W. 168, 170 (1930) (same); State v. Larson,
_____ ______
123 Wash. 21, 211 P. 885, 888 (1923) ("The mere fact that
the transaction may take the form of a loan would not
necessarily deprive it of its criminality."); Reeves v.
______
State, 95 Ala. 31, 11 So. 158, 163 (1892).
_____
Second, Young says that he intended to return the
money, whether or not the Tomar companies failed, that there
is no evidence to the contrary, and, that, consequently,
there is no embezzlement. He cites, in support, a brief
phrase of Learned Hand, describing the statutory offense as
"converting [the property] unconditionally." United States
_______________ ______________
v. Lewis, 161 F.2d 683, 684 (2d Cir. 1947) (emphasis added).
_____
The word "unconditionally," however, has nothing to do with
any issue before us; Judge Hand used it to contrast an
-12-
12
unauthorized "pledge" (where the fiduciary would likely
receive the property back) with a conversion of the
property. Regardless, an "intent to return" money or
property is not a defense to a charge of embezzlement.
United States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985)
______________ _______
("it is irrelevant to a charge of embezzlement that the
embezzler intended to return the money he embezzled -- or
even that he did return it"); United States v. Coin, 753
_____________ ____
F.2d 1510, 1511 (9th Cir. 1985) (per curiam); 2 LaFave &
Israel, Substantive Criminal Law 8.6(f)(3), at 380 ("It is
________________________
uniformly held that the intent to restore the equivalent
property . . . is no defense to embezzlement.") (citing
cases).
Third, Young says that, if the statute applies to
his actions here, it is unconstitutionally vague. See United
___ ______
States v. Anzalone, 766 F.2d 676, 680 (1st Cir. 1985). We
______ ________
see nothing vague, however, about legal terminology used for
nearly two hundred years. Those to whom others entrust
money can perfectly well understand that they are not to use
that money for their own purposes, contrary to
authorization, and in a fraudulent way. If Young means, by
this argument, simply to repeat that he did not know he was
-13-
13
not supposed to invest the veteran's money as he did, we
shall simply repeat that the jury could find otherwise.
Fourth, Young complains specifically of the
judge's failure to give several proposed jury instructions
that embodied his view of the law. Insofar as he argues
that the judge should have instructed the jury that "intent
to return" is a defense, he is, as we have already noted,
wrong on the law. See Coin, 753 F.2d at 1511 ("intent to
___ ____
return property is not a defense to embezzlement").
(Indeed, some model jury instructions specifically include
the charge, "the fact that the defendant may have intended
to repay the funds is not a defense." Manual of Model Jury
_____________________
Instructions for the Ninth Circuit 8.06A, at 119 (1985)
___________________________________
(18 U.S.C. 656).)
Insofar as Young argues that the judge should have
told the jury that he had to have a specific intent to
defraud, or that the judge should have pointed out that
simple negligence, or actions taken in good faith, are not
criminal, he received the instructions to which the law
entitles him. The judge told the jury that the law "will
not punish somebody who does not have criminal intent,"
that such intent means the action "is done with a bad
purpose, either to disobey or to disregard the law," that
-14-
14
the act is not culpable if done "because of some mistake or
accident or otherwise innocent reason," that "[n]egligence,
bad judgment, neglect, will not support a violation of
Section 3501," and that the "government must prove that
there was an embezzlement or misappropriation done willfully
and intentionally. Not by inadvertence or by carelessness."
The judge's instructions follow standard jury instructions
on such matters. See, e.g., 1 Edward J. Devitt & Charles B.
___ ____
Blackmar, Federal Jury Practice and Instructions, Civil and
__________________________________________________
Criminal 14.03, at 377 (3d ed. 1977) (specific intent); 2
________
Edward J. Devitt, Charles B. Blackmar & Kevin F. O'Malley,
Federal Jury Practice and Instructions, Criminal 30.03-
_________________________________________________
04, at 238-50 (4th ed. 1990) (embezzlement); 2 Federal
_______
Criminal Jury Instructions of the Seventh Circuit 82 (1984)
__________________________________________________
(18 U.S.C. 656), see also United States v. McGill,
_______________________ ______ ____
F.2d , (1st Cir. 1992) [No. 91-1145, slip op. at 3-
_____ ____
4]; United States v. Dockray, 943 F.2d 152, 155 (1st Cir.
_____________ _______
1991). But see, e.g., United States v. Casperon, 773 F.2d
_______ ____ _____________ ________
216, 222-224 (8th Cir. 1985); United States v. Hopkins, 744
______________ _______
F. 2d 716, 717-18 (10th Cir. 1984) (en banc). Cf. Green v.
___ _____
United States, 474 U.S. 925 (1985) (White, J., dissenting
_____________
from denial of certiorari and divergence among circuits).
And, they were legally sufficient. See United States v.
___ _____________
-15-
15
Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989) (citing cases),
______
cert. denied, 494 U.S. 1005 (1990); New England Enterprises,
_____ ______ ________________________
Inc. v. United States, 400 F.2d 58, 71-72 (1st Cir. 1968),
____ _____________
cert. denied, 393 U.S. 1036 (1969).
_____ ______
Finally, Young points to two cases which, he says,
show that the evidence was insufficient to convict him of
embezzlement. We do not find these decisions particularly
relevant. In one of them, Giragosian v. United States, 349
__________ _____________
F.2d 166 (1st Cir. 1965), a bank officer approved loans to
financially irresponsible persons. This Court reversed,
because there was no evidence that the officer knew that the
____
recipient was financially irresponsible, and so no evidence
of any intent to defraud the bank. Id. at 168-69. In the
___
other, United States v. Gens, 493 F.2d 216 (1st Cir. 1974),
_____________ ____
the defendants made loans to one party, knowing the money
would be given to another party. We found that, because the
third party was a financially capable party responsible for
the loans, there was no evidence that the defendants knew
that they should not make loans of the sort in question. Id.
___
at 222. As we have explained, however, in this case, the
record contains sufficient evidence that Young's actions
constituted embezzlement and that he knew he should not lend
-16-
16
the guardianship funds to companies that he or his family
controlled.
III
The Questioned Juror
____________________
Young argues that the district court coercively
intruded into jury deliberations by questioning one juror
after the jury had begun to consider the case. While it is
unusual for a judge to call a juror out of deliberations and
question her, the facts of this case make clear that the
judge was justified in speaking with the juror and that
nothing he said was coercive.
After the first day of jury deliberations, the
jury clerk happened to notice a particular juror come to
pick up her check. The clerk was surprised to see that the
juror was participating on the panel, for she recalled the
juror having said to her, at the start of jury selection,
that she (the juror) feared she could not be fair. The
clerk thought, although she was not certain, that the juror
had mentioned that religious convictions would prevent her
from reaching a decision. The clerk then reported these
earlier events to the judge. The judge, in the presence of
counsel, questioned the clerk under oath. The prosecutor
and defense counsel also examined the clerk. And, the judge
-17-
17
questioned a court security officer who said he believed the
same juror had told him, during the trial, that she wished
to switch seats with an alternate juror.
At this point, the judge, over defense counsel's
objection, called in the juror and questioned her briefly in
the presence of counsel. The questioning proceeded as
follows:
THE COURT: . . . please, would you sit
for a moment, please, with us.
I've called you down to talk with you
for a moment about a conversation or a
remark or . . . a communication you may
have had with the court officer
yesterday.
JUROR NO. 8: Mm-hmm.
THE COURT: And we're not sure what it
was, and we don't know if it's because
you have some physical discomfort or bad
hearing or any other reason that we can
help you with and make it easier for
you, but it was told to us that you may
have wanted to trade with another juror.
We don't know. We don't know why you
wanted to do it. We thought --
JUROR NO. 8: I am --
THE COURT: -- we'd have you come here,
and we thought it might be something
physical or you were cold or you were
hot.
JUROR NO. 8: No, no, nothing to do with
that.
THE COURT: But you did tell him you
wanted to trade?
-18-
18
JUROR NO. 8: Yes, if I could. I didn't
know if it was possible or not. And I
mentioned it to him to see his reaction.
And he didn't think it was.
So -- my reason, you want to know?
THE COURT: Yes.
JUROR NO. 8: My reason is like the Bible
says, Do not throw the first stone, you
know, if you have not sinned. And I
hate to judge somebody and make a
mistake. I do want to do what's right.
And in another way, I don't feel like
I'm qualified to judge. Because I don't
think I'm so educated enough on law and
stuff to realize everything that's
happened here. . . . I don't think I
understand fully everything.
The judge responded that, "we're not going to press
you . . . because there are some things that a person feels
that only that person feels." He noted that she had been
"picked" by the attorneys, assured her that she was smart
and educated enough to serve as a juror, and then went on:
THE COURT: Maybe I didn't ask you the
right question, maybe. I don't know. I
just simply didn't ask you the right
questions that would have allowed you to
come forth, but if you had, I would have
asked you what I said right here: . . .
you're not unqualified. You're not
uneducated. You tell me, do you have
some belief? Do you have some feeling?
Do you have some teachings?
JUROR NO. 8: My only -- my only -- like
I say, not judging somebody, and in the
Bible -- and I feel like my religious
teaching -- I'm not that religious, but
yet I feel that if I judge him or anyone
-19-
19
else -- I shouldn't judge, you know what
I mean? That's my feeling.
THE COURT: Doesn't leave us in any --
JUROR NO. 8: If I have to do it, I have
to do it. But I feel like, you know,
it's just wrong, religiously.
THE COURT: Well --
JUROR NO. 8: I know what I feel, you
know, but if I have to be a juror and
have to do it, I can do it; but it's my
feeling -- that's why the other lady
says she was so willing and wanted to do
it. I said, Geez, why not change with
her. She is so willing. She is --
those are the only reasons she said.
THE COURT: Every alternate says, they go
down and say, Why did you keep me here
for two weeks if you're not going to use
me?
I hope this hasn't made you
uncomfortable.
JUROR NO. 8: It made me a little
nervous.
THE COURT: We're trying to do the right
thing for the system, and for which
we're trying to do the right thing for
everybody. So we had to talk to you.
It was my decision to talk to you, not
theirs. I may ask you to go back. I
may not ask you to go back. I hope I
haven't talked you into doing your
duties by saying it the way I said. All
I meant to say was, Don't feel that you
cannot do your job. Maybe you need some
more instruction. Maybe you want me --
JUROR NO. 8: I kind of feel like I can't
-- in my mind I know what I think, what
my outcome would be, but I can't say it.
-20-
20
You know, but yet sometimes it still
goes back to the religious belief.
THE COURT: Let me talk to counsel for a
minut [sic] please, okay? Would you
just step out for a minute? Don't go
too far.
After this colloquy, the court consulted with
counsel. Defense counsel agreed that the juror should
continue to serve. The court called in the entire jury and
explained:
I'm sorry for the delay. A procedural
matter came to my attention which had to
be resolved. It does not affect your
deliberations. It does not affect your
continuing to deliberate as a jury. You
should not ask, speculate, guess,
consider in any way what this procedural
matter was. Counsel and I have
discussed it, and we are content to go
forward with this jury as chosen by
these counsel, because they are
confident that the jury will view the
evidence, listen to my instructions, and
render a fair and impartial verdict
regardless of the consequences which is
your sworn duty.
The jury then continued to deliberate. Later that day, it
found the defendant guilty.
In our view, the court's basis for calling in the
juror for questioning (to examine a special problem of
potential bias) was reasonable, for the court had adequate
reason to believe that she had a special problem of
potential bias that had not been disclosed during voir dire.
-21-
21
The procedure followed was a fair and careful one, with both
counsel present throughout. See, e.g., United States v.
___ ____ ______________
Taylor, 562 F.2d 1345, 1365-66 (2d Cir.) (emphasizing need
______
for trial court to confer with counsel before communicating
with juror and to report any communications immediately),
cert. denied, 432 U.S. 909 (1977); United States v.
_____ ______ ______________
Zeehandelaar, 498 F.2d 352, 358 (2d Cir. 1974) ("it is not
____________
improper for the trial court, in the exercise of its
discretion, to interview individual members of a jury so
long as counsel are present") (citing cases); cf. United
___ ______
States v. United States Gypsum Co., 438 U.S. 422, 460 (1978)
______ ________________________
("Any ex parte meeting or communication between the judge
__ _____
and the foreman of a deliberating jury is pregnant with
possibilities for error."). And, the questioning was
reasonable and did not place the juror under improper
pressure, subtle or otherwise, to reach a verdict, let alone
a particular one. Cf. United States v. Flannery, 451 F.2d
___ _____________ ________
880, 883-84 (1st Cir. 1971) (discussing supplemental charge
under Allen v. United States, 164 U.S. 492, 501-02 (1896),
_____ ______________
urging jury to reach verdict). We can find no legal error.
IV
Other Arguments
_______________
-22-
22
Appellant Young makes a large number of other
arguments, none of which raises any significant legal issue.
We shall briefly indicate our reasons for rejecting each of
them:
1. Young points out that the government
initially indicted him on one count of embezzlement. 38
U.S.C. 3501. After he moved to dismiss the charge (on the
ground that the statute was unconstitutionally vague) the
government brought a five count superseding indictment, in
which it added four counts of mail fraud, 18 U.S.C. 1341,
based on Young's correspondence with the VA. Young claims
that this amounts to vindictive prosecutorial behavior, and
that the district court should have dismissed the
superceding indictment or, at least, permitted Young to
examine the grand jury minutes for evidence of
vindictiveness.
Of course, a prosecutor may not behave
vindictively. See United States v. Marrapese, 826 F.2d 145,
___ _____________ _________
147 (1st Cir.), cert. denied, 484 U.S. 944 (1987). But, the
_____ ______
mere bringing of a new indictment with added counts is not
in itself vindictive behavior, nor does it raise a
presumption of vindictiveness sufficient to require
investigation of grand jury minutes. United States v.
______________
-23-
23
Goodwin, 457 U.S. 368, 382 (1982) (no presumption of
_______
vindictiveness where prosecutor brought four count felony
indictment after defendant demanded jury trial on single
misdemeanor count). Young's motion to dismiss the charge on
the ground that the embezzlement statute was
unconstitutional offers an obvious, and legitimate, reason
why the prosecutor would want to add other, less
controversial, charges to the indictment. See id. at 381
___ ___
("[d]efense counsel routinely file pretrial motions . . . to
challenge the sufficiency and form of an indictment . . . .
It is unrealistic to assume that a prosecutor's probable
response to such motions" is vindictive); cf. United States
___ _____________
v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir. 1983) (en banc)
________
("If any . . . combination of events in those proceedings
should indicate to a reasonable minded defendant that the
prosecutor's decision to increase the severity of charges
was motivated by some purpose other than a vindictive desire
to deter or punish appeals, no presumption of vindictiveness
is created."), cert. denied, 465 U.S. 1066 (1984). Nothing
_____ ______
in the record suggests any other motive. No access to the
grand jury minutes was required. See Fed. R. Crim. P.
___
6(e)(3)(C)(ii).
-24-
24
2. Young attacks his mail fraud convictions on
the ground that the later mailings of letters and
explanations to the VA had nothing to do with the earlier
fraud, namely his lending the guardianship money to Tomar
Farms. He is right that the mail fraud statute applies only
to mailings that have to do with the fraud, 18 U.S.C.
1341; United States v. Maze, 414 U.S. 395, 399-400 (1974);
_____________ ____
United States v. Pietri Giraldi, 864 F.2d 222, 224-25 (1st
_____________ ______________
Cir. 1988) (per curiam), but his mailings to the VA have a
proper connection, for they helped to conceal the fraud. See
___
United States v. Pacheco-Ortiz, 889 F.2d 301, 305 (1st Cir.
______________ _____________
1989) (per curiam) ("for the mailings to be considered 'in
furtherance of the scheme, "the scheme's completion or the
prevention of its detection must have depended in some way"'
on the mailings") (citations omitted). Contrary to Young's
contention, the mailings did not help to expose the fraud.
The jury could readily find that the letters deliberately
created false impressions in the mind of the reader, and
they were therefore "part of the execution of the scheme as
conceived . . . at the time" they were written, even though
they later may have returned "to haunt the perpetrator of
the fraud." Schmuck v. United States, 489 U.S. 705, 715
_______ ______________
(1989).
-25-
25
3. Young says that the government cannot
prosecute him for both embezzlement and mail fraud, because,
in his view, Congress' use of a "specific statute" to
prohibit embezzlement "displaces" the "general" mail fraud
statute; that is to say, Congress did not intend the two
provisions to apply to the same conduct. Young relies on
Busic v. United States, 446 U.S. 398, 406-08 (1980), and
_____ _____________
Simpson v. United States, 435 U.S. 6, 15 (1978), cases in
_______ _____________
which the Supreme Court held that Congress did not intend
federal courts to apply a "sentence enhancement" contained
in a general statute (enhancing the sentence when a firearm
is used in commission of any felony), 18 U.S.C. 924(c),
and also to apply a certain, more specific "sentence
enhancement" statute (enhancing the sentence when a firearm
is used in the commission of a particular felony). We do
not understand how these cases are relevant here.
We concede, of course, that specific statutory
language, or special features of two statutes, or other
circumstances, could show a Congressional intent not to
permit conviction of a person under two statutes in respect
to a specific event. But, there is no such intent evident
here. The two statutes at issue -- embezzlement and mail
fraud -- have different elements: an offender can embezzle a
-26-
26
veteran's money without using the mails, and an offender
also can fraudulently use the mails without, say, taking
entrusted money. Ordinarily, if a course of conduct
_________
violates two statutes with different elements, the
government may prosecute, and punish, under each of them.
See Blockburger v. United States, 284 U.S. 299, 304 (1932);
___ ___________ _____________
United States v. Faulhaber, 929 F.2d 16, 19 (1st Cir. 1991).
_____________ _________
Cf. Edwards v. United States, 312 U.S. 473, 484 (1941)
___ _______ _____________
(rejecting contention that "in so far as the [Securities Act
of 1933] prohibits the fraudulent sale of securities by
mail, it repeals by implication the provisions of the old
mail fraud statute in so far as they cover securities");
Faulhaber, 929 F.2d at 19 (upholding application of 1341
_________
and securities fraud statute to same conduct); United States
_____________
v. Brien, 617 F.2d 299, 309-10 (1st Cir.) ( 1341 and anti-
_____
fraud provisions of Commodities Futures Trading Act), cert.
_____
denied, 446 U.S. 919 (1980). We can find no special
______
circumstances here that would suggest the contrary.
4. Young points to two letters to the VA,
introduced at trial, which, he says, were not properly
authenticated and may have been altered. Having read the
record, we note that, eventually, a VA employee
authenticated the letters. We can find no indication of any
-27-
27
alteration, or any prejudice to Young, and we see no error
in their admission. See United States v. Browne, 891 F.2d
___ _____________ ______
389, 392 (1st Cir. 1989) (trial court's determination of
authenticity of evidence reviewed for abuse of discretion).
5. Young complains that the prosecutor's closing
argument used inflammatory hypotheticals. We have read the
hypotheticals, which sought to take the jury through the
prosecutor's case, step by step, by giving a simplified
account of embezzlement (a guardian simply taking cash from
the Merrill Lynch account and using it to invest in his
horse business) and building up to the more complex
circumstances revealed by the evidence. We can find no
error. See United States v. de Leon Davis, 914 F.2d 340, 345
___ _____________ _____________
(1st Cir. 1990) (prosecutor's closing did not surpass "outer
limit of permissible argument"). Young also complains that
the prosecutor's use in closing of a chart, summarizing the
transactions, was unfair, but, given that the chart was
based on information already in evidence, we disagree; the
court did not err in permitting its use.
6. The district court used the Sentencing
Guidelines to calculate Young's punishment. The Guidelines
apply only to "offenses committed after" November 1, 1987.
Sentencing Act of 1987, Pub.L. No. 100-182, 2(a), 101
-28-
28
Stat. 1266 (1987), codified at 18 U.S.C. 3551 note. Young
________ __
argues that the Guidelines therefore do not apply to his
conviction for embezzlement, since all the acts constituting
the crime were completed before that date.
We disagree. The court could properly conclude
that the VA letters constituted an effort to conceal the
embezzlement and that the embezzlement scheme therefore
continued into 1988 when Young wrote the letters. And, it
is well established that the Guidelines apply to offenses
involving a "course of conduct" that begins before November
1, 1987, but continues beyond that date. United States v.
_____________
David, 940 F.2d 722, 740-41 (1st Cir.), cert. denied, 112 S.
_____ _____ ______
Ct. 605 (1991); United States v. Arboleda, 929 F.2d 858, 871
_____________ ________
(1st Cir. 1991); see also United States v. Fazio, 914 F.2d
___ ____ _____________ _____
950, 959 n.14 (7th Cir. 1990) (collecting cases). Young
argues that previous cases where this rule has been applied
concerned conspiracies, while his case involves an offense
that he committed alone. However, he has not suggested any
reason why this distinction should make a difference, and we
cannot think of one.
The judgment of the district court is
Affirmed.
_________
-29-
29