
USCA1 Opinion

	




        September 11, 1992  UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2214                                    UNITED STATES,                                 Plaintiff, Appellee,                                          v.                                  ROGER ALLEN DOANE,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                  Cyr, Circuit Judge,                                       _____________                            Roney,* Senior Circuit Judge,                                    ____________________                            and Pieras,** District Judge.                                          ______________                                 ____________________            Jonathan R. Saxe, by Appointment of the Court, with  whom Twomey &            ________________                                          ________        Sisti Law Offices was on brief for appellant.        _________________            Barbara N. Bandfield, Trial Attorney, United States Department  of            ____________________        Justice, with whom Jeffrey  R. Howard, United States Attorney,  was on                           __________________        brief for appellee.                                 ____________________                                 ____________________        _____________________        *  Of the Eleventh Circuit, sitting by designation.        ** Of the District of Puerto Rico, sitting by designation.               PIERAS,  District Judge.    Appellant Roger  Allen Doane,  a                        ______________          licensed attorney  practicing  in Salisbury,  Massachusetts,  was          convicted after a jury trial in the District  of New Hampshire of          bank  fraud  (18 U.S.C.     1344),  interstate transportation  of          securities taken by fraud (18 U.S.C.    2314), and four counts of          embezzlement  (18 U.S.C.   656).   On this appeal, he attacks his          conviction  alleging an  incorrect jury  instruction  relating to          Section  2314, insufficient  evidence to  sustain his  conviction          under Section 656, and an incorrect and prejudicial denial of two          motions to suppress.  Finding no merit in appellant's  arguments,          we affirm.                                      Background                                          Background                                      __________               The various charges against appellant were based on a series          of different  transactions.  The fraud-related  counts involved a          scheme  devised and  carried  out by  Doane  in early  1987,  the          purpose  of  which was  to obtain  funds  from the  United States          Savings  Bank  of   America  (hereinafter  "USSBA")  located   in          Seabrook,  New  Hampshire,  and  to deposit  these  funds  in  an          overdrawn account maintained at USSBA for the benefit of a health          care clinic called Primacare, which Doane owned.  Doane created a          sham trust and  held himself out as its attorney while naming the          girlfriend of a former  employee as its trustee.   The collateral          given for  the  loan was  a  mortgage on  a  beach house  already          subject  to four  other  mortgages  which  was  owned  by  Marion          Heffron, a USSBA  employee who  had been  Doane's bookkeeper  for          several years and continued to receive money from him after being                                          2          employed by USSBA.  Doane directed the submission to USSBA of  an          application  for  a mortgage  loan to  the  trust and,  using his          influence  over  Heffron, directed  her to  draw  a check  in the          amount  of $131,500.00 for the  benefit of Doane  as attorney for          the trust.   He then directed  his new bookkeeper to  pick up the          check and  deposit it into a  law firm trust fund  account at the          First National Bank of Boston ("FNBB"), located in Massachusetts.          Soon  thereafter, appellant drew a  check on the  FNBB account in          the  amount  of  $110,000.00,  payable  to  Primacare,  and  four          additional  checks  totalling $23,533.00  payable to  himself for          "fees and costs."                The  embezzlement-related counts  involved  two other  USSBA          loans,  the proceeds of which Doane embezzled after the funds had          been deposited in law office client trust  accounts maintained at          USSBA.    The  first loan,  in  the  amount  of $140,000.00,  was          obtained for  Arthur and Valerie McCaskill,  who were represented          by Diane Loman, an attorney in Doane's office.  The proceeds were          to be  used to  pay  off a  pre-existing  first mortgage  on  the          McCaskills' home and to make disbursements identified by Loman on          a settlement sheet; however, after the proceeds were deposited in          a client trust fund account, Doane directed his bookkeeper not to          pay off the pre-existing  mortgage or make any of  the identified          disbursements.  Instead, seven  checks totalling $141,855.14 were          issued  for  various  other  purposes,   including  three  checks          totalling $82,426.81 which were  made payable to Doane  for "fees          and costs."  Doane for  a short period of time arranged  that the                                          3          monthly  payments on  the pre-existing  loan be  paid out  of law          office  funds,  but  then   discontinued  the  payments.    Doane          eventually gave the McCaskills a check for $99,536.00,  but later          instructed his bookkeeper to place a stop payment on the check.               The  second loan was handled  by Doane's law  firm after the          USSBA directed the borrowers, Gary and Darlene Richie, to use the          services  of   Doane's  firm.    The   loan  proceeds,  totalling          $85,000.00,  were deposited into  a client trust  fund account at          USSBA.  After closing, Doane directed that a check in  the amount          of  $41,887.00 be sent to pay off the seller's existing mortgage.          When Doane learned approximately two  months later that the check          had  not been negotiated, he  directed his bookkeeper  to place a          stop payment on  the check.   Thereafter, three checks  totalling          $41,762.94  were drawn  on the  account, all  signed by  and made          payable to Doane for "fees and costs."  USSBA eventually issued a          treasurer's check to pay off the existing mortgage.                                   Jury Instruction                                   Jury Instruction                                   ________________               Appellant   asserts  that   the  district   court  committed          reversible error by submitting to the jury an aiding and abetting          instruction without  a correlative  instruction  that the  mental          state of an aider and abettor  must be the same as the principal.          The  precepts  controlling our  review  of a  trial  court's jury          instructions  are well established.   Primary  among them  is the          axiom that "a  single instruction to a jury may  not be judged in          artificial  isolation, but must be  viewed in the  context of the          overall charge."  Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).                            ________________                                          4               With this  directive in mind, we conclude  that the district          court's charge was not prejudicial,  primarily because it was not          in fact an instruction on aiding and abetting.   In setting forth          the  elements required under 18 U.S.C.   2314 to prove interstate          transportation of securities taken  by fraud,1 the district court          instructed the jury:               It is not  necessary for the  Government to prove  that               the defendant  actually transmitted or  transported the               money himself,  as it  is sufficient to  prove that  he               caused such transportation to  be done.  Otherwise put,               the defendant  may be  found guilty  of a  violation of               Title 18, United States Code, Section 2314, if the jury               finds  beyond  a reasonable  doubt  that  the defendant               committed the  offense himself, or if it finds beyond a               reasonable doubt that the defendant aided or caused the                                                   _______________               commission of the offense by others.            Transcript at 94  (June 20,  1991) (emphasis added).   We  cannot          agree with appellant's contention that  this language constituted          an  instruction on aiding and  abetting.  The  district court was          merely   explaining  to   the  jury   that  in   order  to   find                                    ____________________        1 18 U.S.C.   2314 provides, in pertinent part (emphasis added):                  Whoever  transports,  transmits,  or   transfers  in               inter-state  or  foreign  commerce  any  goods,  wares,               merchandise,  securities  or  money, of  the  value  of               $5,000 or more,  knowing the same to  have been stolen,               converted or taken by fraud; or                   Whoever,  having devised or  intending to devise any               scheme  or  artifice to  defraud  . .  .  transports or               causes  to be  transported,  or induces  any person  or               __________________________               persons  to   travel  in,  or  to   be  transported  in               interstate  or  foreign commerce  in  the execution  or               concealment  of a  scheme or  artifice to  defraud that               person or persons  of money or property  having a value               of $5,000 or more . . .                  .  . .  [s]hall be  fined not  more than  $10,000 or               imprisoned not more than 10 years, or both.                                          5          transportation in interstate commerce it must find that money was          moved  or caused  to  be moved  by  the defendant  in  interstate                    ____________________          commerce.  The court used the  word "aided" only to flesh out for          the  jury the meaning of the phrase "causes to be transported" as          used in the statute.   While the court's use of the  word "aided"          was perhaps  ill-advised, it could not alone yield an instruction          on aiding and abetting.               The  jury   could  not   have  concluded  otherwise.     The          indictment,  which was read to the jury on several occasions, did          not  charge the defendant with aiding and abetting.  In addition,          the court's charge included an instruction on specific intent, as          well as instructions on  voluntary and intentional conduct, which          taken together required the jury to find that the defendant acted          knowingly  and intentionally.    Under  these  circumstances,  we          determine  that the  trial court's  instruction did not  create a          substantial risk of a  miscarriage of justice.  Accord  Cupp, 414                                                          ______  ____          U.S.  at 147-48; Allen v. Commonwealth of Massachusetts, 926 F.2d                           ______________________________________          74, 79-80 (1st Cir. 1991).                               Sufficiency of Evidence                               Sufficiency of Evidence                               _______________________               Appellant also  asserts that  the evidence adduced  at trial          was insufficient to sustain his conviction for embezzlement under          18 U.S.C.   656.  Section 656 provides, in pertinent part:                  Whoever,  being  an  officer,  director,   agent  or               employee  of, or  connected  in any  capacity with  any               Federal  Reserve  Bank  .  .  .  embezzles,  abstracts,               purloins  or willfully  misapplies any  of  the moneys,               funds  or credits of  such bank  . .  . or  any moneys,               funds, assets or securities intrusted to the custody or               care of such bank  . . . or to the  custody or care any               such  agent,  officer, director,  employee  or receiver                                          6               shall be  fined not more than  $1,000,000 or imprisoned               not more than 30 years, or both.          Appellant contends that the evidence against him was insufficient          to show (i) that he was an officer, director, agent  or employee,          or otherwise connected in  any capacity with USSBA and  (ii) that          the money involved  in the  offenses was  not money  of USSBA  or          entrusted to its care or to the care of its agent.  We disagree.               First, the  evidence was  sufficient to show  that appellant          enjoyed  an agency relationship with the bank.  See United States                                                          ___ _____________          v. Davis,  953 F.2d 1482,  1488 (10th Cir.  1992).  The  evidence          ________          showed that  (i) bank  employees sought professional  advice from          appellant  on  matters  related  to  the bank;  (ii)  the  bank's          accountant testified that Doane  was "the bank's attorney"; (iii)          appellant's  employee acted  as  the sole  closing  agent on  the          loans,  creating a  fiduciary  duty between  the appellant's  law          office  and the bank; and (iv) most strikingly, the bank required                                                                   ________          one of the  victims to use the services of  appellant to obtain a          loan.  This final aspect of the evidence reflects the inescapable          fact that an attorney  who drafts and executes loan  documents at          the instigation of a bank acts  as the bank's lawyer and seeks to          protect the  interests of the  bank as a  creditor.2  From  these                                    ____________________        2 As  a practical matter, when  a bank "suggests" that  a borrower use        the services of a particular attorney, the bank is in effect requiring        that the borrower use that attorney's services in order to obtain  the        requested  loan.    In addition,  since  the  primary  interest to  be        protected in a loan context is the interest of the bank as lender, the        "suggestion"  that  a certain  attorney be  used  is tantamount  to an        appointment of that attorney as a fiduciary of the bank.  As a result,        although the  attorney might  be paid  by the borrower  to act  as its        attorney  for purposes  of closing  the  loan, the  attorney's primary        mandate  is to protect  the interest of  the bank.   In other types of                                          7          facts, viewed in a  light most favorable to the  prosecution, the          jury could have reasonably concluded  that appellant was an agent          of USSBA.               Second,   the  funds  which   were  embezzled  were  clearly          "intrusted to  the care of [a  USSBA] agent," as required  by the          statute -- that agent being Doane himself.  Appellant argues that          he did  not embezzle  "funds  . .  . of  [the]  bank" within  the          meaning of Section  656 because  title to the  loan proceeds  had          already passed from  USSBA to his  clients at the time  they were          deposited  into the  client trust fund  accounts.   Assuming this          fact to be  true, Doane  is not delivered  from conviction  under          Section 656.  The statute applies with equal force when the funds          embezzled  are  under the  custody of  an  agent of  a federally-                                                     _____          insured  bank.3   Once  the funds  passed  into escrow  and  were          deposited   in  client   trust  funds   accounts  maintained   by          appellant's  law office,  they were  clearly "intrusted  to [his]          custody or care."  His embezzlement of the funds  while they were          in his custody is conduct that falls squarely within the statute.                                    ____________________        transactions where  the bank  is involved  only  peripherally and  its        interest is not directly at risk, a suggestion by an officer of a bank        that  a particular  attorney  be used  does  not similarly  reflect  a        fiduciary relationship between the bank and the attorney.        3 The Court notes that all cases concerning embezzlement of bank funds        or funds intrusted to the care of a bank are inapposite  to this case.        Cf., Golden v. United  States, 318 F.2d  357 (1st Cir. 1963)  (whether        ___  ________________________        funds  directed to bank official  in his private  capacity ever became                                                                   ____        "funds" of bank is question of fact for jury, not a question of  law);        United  States v.  Mott, 603  F. Supp.  1322, 1323-24  (S.D.N.Y. 1985)        _______________________        (bank  initially used "funds of  the bank" to  reimburse bank employee        who  submitted fraudulent  expense  billings, despite  fact that  bank        intended  to obtain  substantial reimbursement  from clients  at later                                         _____________        date).                                          8                               Suppression of Evidence                               Suppression of Evidence                               _______________________               Appellant's  final issue  on  appeal  involves the  district          court's denial  of  two  motions  he filed  to  suppress  certain          documents  delivered to  the Federal  Bureau of  Investigation by          their  custodian, a bankruptcy  trustee, and by  the president of          the  corporate  entity   whose  records  were   delivered,  which          documents  he  contends  were   obtained  by  the  government  in          violation  of the Fourth  Amendment.  The  government has offered          several  procedural  and  substantive reasons  why  the  district          court's orders should be upheld.  We do not address each of these          issues.                 The  exclusionary  rule  provides  that  illegally  obtained          evidence,  to  which a  timely  objection  was  made,  cannot  be          admitted  into  evidence.    The  rule  reflects not  a  personal          constitutional  right  of  the  person aggrieved  but  instead  a          judicially created  remedy designed  primarily to  deter improper          conduct by law enforcement officials.  United States v. Leon, 468                                                 _____________________          U.S. 897 (1984);  Michigan v.  De Fillippo, 443  U.S. 31  (1979).                            ________________________          None  of the  documents appellant moved  to have  suppressed were          introduced  into evidence at trial.   As a  result, even assuming          arguendo that the motions to suppress were improperly denied, the          ________          exclusionary rule provides no remedy in this case.                Affirmed.               ________                                          9
