
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 96-1827                                    UNITED STATES,                                      Appellee,                                          v.                                  EVELYN LHERISSON,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Michael A. Ponsor, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                        John R. Gibson,* Senior Circuit Judge,                                         ____________________                         and Pollak,** Senior District Judge.                                       _____________________                                _____________________               John L. Roberts, by appointment of the Court, for appellant.               _______________               Andrew Levchuk,  Assistant United States Attorney, with whom               ______________          Donald  K.  Stern,  United  States Attorney,  was  on  brief  for          _________________          appellee.                                 ____________________                                   December 2, 1997                                 ____________________                                        ____________________          *  Of the Eighth Circuit, sitting by designation.          **    Of  the  Eastern  District  of  Pennsylvania,  sitting   by          designation.                    Per  Curiam.   Evelyn Lherisson  was  convicted of  one                    Per  Curiam.                    ___________          count of bank  fraud, in violation of 18 U.S.C.   1344, and three          counts   of  making  false  statements  to  a  federally  insured          financial  institution, in  violation of  18 U.S.C.    1014.   On          appeal she  argues that (1)  the government engaged  in selective          prosecution   in  prosecuting  her  but  not  the  more  culpable          principal  of  the  fraud,  (2)  that  she  received  ineffective          assistance  of counsel,  and  (3)  that  there  was  insufficient          evidence  to support the jury s  findings of guilt  on any of the          four  counts of  which she  was convicted.   Because  we find  no          reversible error, we affirm.                                          I.                      In July  of 1988, Evelyn  Lherisson, who  represented          herself as the  trustee of a substantial family  trust located in          the Cayman Islands (the "LPH trust"), was introduced to Mary Anne          Krupsak, a  partner in the Albany office of  a New York law firm.          At the time, Krupsak was a shareholder in Valyte International, a          small  corporation  that  was  undergoing  financial  difficulty.          Lherisson  told Krupsak  that  she was  interested  in using  her          family trust s assets to help small businesses such as Valyte and          gave Krupsak various  documents that purported to confirm some of          the trust s assets.                    In the  fall of  1988, Valyte  began negotiations  with          Heritage  NIS-Bank  for  Savings concerning  a  $350,000  line of          credit Heritage had extended to Valyte.  Valyte had drawn heavily          on the line  of credit and Heritage  had lost some  confidence in                                         -2-                                         -2-          Valyte s ability to pay its debts.  On December 27, 1988, Krupsak          and  the other  shareholders met  with  Heritage officer  Michael          Audette  and  Heritage  attorney  Steven  Weiss  to  discuss  the          possibility   of   individual   Valyte   shareholders   providing          additional collateral  for the loans in exchange for Heritage not          calling  in  Valyte s  obligations.    At  that  meeting  Krupsak          informed Audette and Weiss that Evelyn Lherisson might be able to          assist  in  providing  collateral  for  Valyte s  obligations  to          Heritage.   Audette then spoke  on the phone with  Lherisson, who          advised  him that  she would  obtain a  letter of  credit for  $1          million as additional collateral for the Valyte loan.                    On December  29, 1988,  a $1  million letter of  credit          made out  to Krupsak and  drawn on  the First Investment  Bank of          Garland,  Texas, was  faxed to  Heritage.  Heritage  told Krupsak          that  it  wanted  the   letter  modified  to  name   Heritage  as          beneficiary  instead  of  Krupsak.   Krupsak  testified  that she          related  this request, along with other proposed modifications to          the December 29, 1988 letter of credit, to Lherisson, who replied          that she would  not modify the letter  but that she would  send a          new letter  of credit to  replace it.   Krupsak told Heritage  of          Lherisson s  plan to  send  a new  letter of  credit  and, as  an          interim measure, assigned her interest  in the December 29,  1988          letter of credit to Heritage.                    On  March  24,  1989,  Heritage  received  a  document,          bearing the signature  of Lherisson as trustee of  the LPH trust,          constituting  a  $1   million  letter  of  credit   to  Heritage.                                         -3-                                         -3-          Thereafter,  Lherisson and  Krupsak  commenced negotiations  with          Heritage for a  $4 million loan to Valyte to be secured by assets          of  the LPH  trust.  On  April 29,  1989, in support  of the loan          application,  Krupsak faxed  a  copy  of  an  "Irrevocable  Trust          Agreement"  and a  separate specimen  "Trust  Agreement" both  of          which  were  signed by  Lherisson.    On  May 8,  1989,  Heritage          received a  letter, signed  by Krupsak s secretary  on behalf  of          Lherisson, which stated  that the proposed $4  million loan would          be collateralized by United States Treasury notes.                    At  trial,  the  government  introduced  evidence  that          neither the  First Investment Bank  of Garland nor the  LPH trust          ever existed.   The tax identification  number used by  Lherisson          for the LPH trust was not assigned to any person or  business and          the registrar of the Cayman  Islands testified that no such trust          was registered with his  office.  A handwriting  expert testified          that the signature on the March 24, 1989 letter of credit  was in          fact  Lherisson s, and  Krupsak s  secretary  testified that  she          never signed or  sent any correspondence  on behalf of  Lherisson          without being directed to do so by Lherisson herself.                    The jury  found Lherisson guilty  of one count  of bank          fraud, in  violation of  18 U.S.C.    1344,  and three  counts of          making  false  statements  to   a  federally  insured   financial          institution,  in  violation of  18  U.S.C.     1014.   The  false          statement counts were  based on:  1) the $1  million December 29,          1988 letter of credit; 2) the $1 million March 24, 1989 letter of          credit; and 3) the May 8, 1989 letter.                                         -4-                                         -4-                    Post-trial,   Lherisson    underwent   a    psychiatric          examination.   At sentencing, Lherisson s attorney  asserted that          Lherisson   suffered  from  delusions  and  was  operating  in  a          diminished mental  state during  the time  she was  communicating          with   Krupsak  and  Heritage.    The  district  court  sentenced          Lherisson to 15  months imprisonment and three  years  supervised          release.                                         II.                    Lherisson  advances  three  arguments  in this  appeal.          First, Lherisson argues that her convictions arose from selective          prosecution  because the government  chose to prosecute  her ("an          indigent  black  woman who  was  suffering from  a  severe mental          disability")  and not Mary  Anne Krupsak (a  "white, non-disabled          person" with "political and financial clout").  Second, Lherisson          claims  that she  received  ineffective  assistance  of  counsel.          Third, Lherisson claims  that there was insufficient  evidence to          support the jury s verdict.                    Lherisson did not raise her selective prosecution claim          prior to  trial  as required  by  Fed.  R. Crim.  P.  12(b),  and          therefore has waived this claim, Fed. R. Crim. P. 12(f), see also                                                                   ________          Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984), cert.          ______    _____________                                     _____          denied, 469  U.S. 1109 (1985), unless "exceptional circumstances"          ______          exist  which excuse  her failure to  raise the claim  in a timely          fashion.  See United States v. Gary, 74 F.3d 304, 313 (1st Cir.),                    ___ _____________    ____          cert. denied, 116 S. Ct. 2567 (1996).  Lherisson argues  that her          ____________          claim of selective  prosecution became manifest only  after trial                                         -5-                                         -5-          when  the District  Court  ordered and  obtained  reports on  her          mental condition.                    Lherisson attributes her failure to undergo psychiatric          evaluation (and hence her failure to raise the claim of selective          prosecution) prior to trial  to the ineffectiveness of her  trial          counsel.    However,  Lherisson  did  not   raise  the  claim  of          ineffective  assistance of counsel before the district court, and          therefore we are  left without the factual  development necessary          for adequate  review.  Accordingly, we will  follow our customary          practice  of  not  addressing claims  of  ineffective  assistance          raised  for the  first  time on  appeal.   See  United States  v.                                                     ___  _____________          Carrington, 96  F.3d 1, 6 (1st  Cir. 1996), cert.  denied, 117 S.          __________                                  _____________          Ct. 1328 (1997).   Our declination to consider this  issue now is          without prejudice to  Lherisson s entitlement to raise  the issue          in a collateral  challenge to her conviction.   See United States                                                          ___ _____________          v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).             ____                    In her  final claim,  Lherisson argues  that there  was          insufficient evidence to support the jury s verdict.  This  claim          takes two  forms.   First,  she  asserts that  she could  not  be          convicted  of aiding and abetting without  evidence of a culpable          principal.  However,  on each count the district court instructed          the  jury in  conformity with  18 U.S.C.    2(b),  which provides          that:                    [w]hoever willfully causes an  act to be done                    which if directly performed by him or another                    would  be  an   offense  against  the  United                    States, is punishable as a principal.          18 U.S.C.    2(b).  Under  this section, a culpable  principal is                                         -6-                                         -6-          not required.   "[A] defendant may  be convicted as  an aider and          abettor through proof that he caused an innocent person to commit          a criminal  offense."  United  States v. Tashjian, 660  F.2d 829,                                 ______________    ________          842  n.26  (1st Cir.)(alterations  and  internal  quotation marks          omitted),  cert. denied,  454 U.S.  1102 (1981); see  also United                     ____  ______                          _________ ______          States v. Dodd, 43 F.3d 759, 762-63 (1st Cir. 1995).           ______    ____                    Lherisson  also argues that the government did not show          that  her statements  to Heritage  were made  with the  intent to          defraud.   Where  a defendant challenges  the sufficiency  of the          evidence,  this court  must  look to  see  "whether, drawing  all          inferences in the government s favor, a rational jury  could find          guilt beyond  a reasonable  doubt."   United States v.  Montilla-                                                _____________     _________          Rivera, 115 F.3d 1060, 1063 (1st  Cir. 1997).  Lherisson does not          ______          dispute  that the  trust never  existed and  that the  letters of          December 29, 1988,  March 24, 1989, and  May 8, 1989  were false.          Audette  and Krupsak both testified that Lherisson was aware that          Valyte s  negotiations  with  Heritage were  for  the  purpose of          preventing Heritage from  calling in Valyte s loans  or obtaining          new loans for Valyte.  A jury could have reasonably inferred that          Lherisson  knew the  trust  did  not exist  and  that, in  making          statements  about the  trust to  Krupsak  and representatives  of          Heritage at  a time she knew that they  believed she was going to          use the  trust s assets to  help Valyte in its  negotiations with          Heritage, Lherisson  intended to  defraud Heritage.   The  jury s          verdict is therefore supported by sufficient evidence.                                         III.                                         -7-                                         -7-                    For the foregoing reasons, the judgment of the district          court is affirmed.                                         -8-                                         -8-
