
USCA1 Opinion

	




          November 18, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2425                                                UNITED STATES,                                      Appellee,                                          v.                                  JOHN MEDINA-LUGO,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               John Medina Lugo on brief pro se.               ________________               Charles E.  Fitzwilliam, United States Attorney,  and Miguel               _______________________                               ______          A. Pereira, Assistant U.S. Attorney, on brief for appellee.          __________                                  __________________                                  __________________                                  Per Curiam.  Defendant, an attorney, was tried by a                      __________            jury  on  a  two  count   indictment  charging  that  he  (1)            knowingly, willfully and with intent to defraud, falsely made            or  forged the  endorsement, "Thelma  Rosendo,"  on a  United            States treasury  check, in violation  of 18  U.S.C.    510(a)            (Count One); and  (2) knowingly, willfully and with intent to            defraud,  passed,  uttered  or  published  a  treasury  check            bearing the  forged or falsely made endorsement of its payee,            Thelma Rosendo, in  violation of  18 U.S.C.    510(b)  (Count            Two).                      The jury returned  a verdict of acquittal  on Count            One and conviction  on Count Two.   Defendant challenges  the            verdict and the judge's denial of his motions for acquittal.                       We summarize the facts in the light most favorable            to the government, drawing all reasonable inferences in favor            of the verdicts.  United States v.  Gonzalez-Torres, 980 F.2d                              _____________     _______________            788, 789 (1st  Cir. 1992); United States v.  Amparo, 961 F.2d                                       _____________     ______            288, 290 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992).  In                                 ____________            1989   defendant  served  as  an  attorney  for  one  Vincent            Bazemore, who was in jail  following his arrest in a criminal            matter.  A  friend of Bazemore's,  Thelma Rosendo, helped  to            arrange for Bazemore's bail by  obtaining $5000 from a Virgin            Islands' company  which owed some  money to  Bazemore.   With            defendant's legal assistance, Rosendo pledged the  $5000 with            the Clerk of the United States District Court in Puerto Rico,                                         -2-            to secure  Bazemore's  release.   Rosendo  was named  as  the            surety on the bond.                        By  September,  1990, Bazemore's  case  was closed.            Rosendo,   who  had  moved  to  St.  Thomas,  again  enlisted            defendant  as an  attorney,  this time  to help  retrieve the            $5000 she had pledged.  (Rosendo testified that the clerk had            earlier refused to release the  money to Bazemore because  he            was not  the nominal surety).   Defendant made a  motion, and            promptly  obtained from  the  clerk  a  treasury  check  made            payable   to  Rosendo.     Without  Rosendo's   knowledge  or            permission, however, defendant endorsed the check in the name            of Thelma Rosendo.  He also endorsed his own name and,  again            without permission,  deposited the  money into  his own  bank            account.                        Over  the  next  two years,  Rosendo  travelled  to            Puerto Rico between  eight and twelve times, in  an effort to            regain the $5000.  She  contacted defendant in person on each            trip,  but defendant  denied  having  the  money.    Finally,            Rosendo wrote  a  letter  to  Chief  Judge  Gierbolini.    An            investigation   ensued,  during   which  defendant   admitted            depositing  the check  to his own  account and,  motivated by            financial  problems,   using  the  money   without  Rosendo's            permission.  After the indictment  issued, defendant returned            $5000 to Rosendo (who gave  the money to its rightful owner).                                         -3-            Defendant  told Rosendo  then that  he  had earlier  lost her            mailing address.                        Defendant  perceives  the   verdicts  as  logically            inconsistent.  Without attempting to retrace his  contentions            in detail, the crux of his argument is that the crime charged            in Count One (forgery of  an endorsement) is like a predicate            or component crime, the elements of which  are fully included            in the  crime charged in  Count Two  (passing a check  with a            forged  endorsement).   As  a result  of his  acquittal under            Count  One, defendant argues,  the judge was  required to set            aside his  conviction under  Count Two.   Defendant  cites no            cases supporting this unusual interpretation of the statutory            crimes  here, and  we know  of none.   Cf.  United  States v.                                                   ___  ______________            Hopkins,  853 F.2d  118 (2d  Cir.  1988) (a  violation of  18            _______            U.S.C.   510(a)(2)  requires only that a person  who passes a            Treasury check with a forged  endorsement act with an  intent            to defraud; there is no requirement even that he specifically            know that the endorsement is forged).                        In  any   event,  "[i]t   is   well  settled   that            inconsistency  in a criminal verdict does not require setting            the verdict aside."  Gonzalez-Torres, 980 F.2d 788 (1st  Cir.                                 _______________            1992)  (citing  cases).   The rule  is as  much a  product of            lenity as it is of fairness and finality.                 [I]nconsistent  verdicts  --   even  verdicts  that                 acquit on the predicate offense while convicting on                 the  compound  offense  --  should  not  . .  .  be                 interpreted  as a windfall to the Government at the                                         -4-                 defendant's expense.   It is equally  possible that                 the  jury, convinced of guilt, properly reached its                 conclusion  on  the  compound  offense,  and   then                 through mistake, compromise,  or lenity, arrived at                 an inconsistent conclusion on the lesser offense.             United States v. Powell, 469 U.S. 57, 65 (1984).             _____________    ______                      Moreover,   the  verdicts   were  not   necessarily            inconsistent.   Although  both counts  required  proof of  an            intention, each included a different criminal act.  Count One            required proof that defendant  had an intent to defraud  when            he forged the  endorsement.  Count Two required  an intent to            defraud  when  defendant  passed,  uttered  or published  the            check.    The  jury  reasonably  could  have  concluded  that            defendant formed a  criminal intention only after  he falsely            endorsed the check in Thelma Rosendo's name.  That conclusion            would  have been  entirely  consistent  with defendant's  own            various   out-of-court   admissions,  as   reported   in  the            witnesses' testimony.1                                            ____________________            1.  For similar  reasons, we reject defendant's argument that            his simultaneous acquittal  on one charge, and  conviction on            the other, violated the  Double Jeopardy clause.   The clause            protects   against   multiple    prosecutions   or   multiple            punishments  for the same  offense.  United  States v. Dixon,                                                 ______________    _____            113 S.  Ct. 2849 (1993).   There  is no question  of multiple            punishment  here  and   the  `same  elements'  test   is  not            implicated since each  crime charged contains an  element not            included  in the other.   Dixon, 113  S. Ct. at  2851 (citing                                      _____            Blockburger  v. United  States, 284  U.S.  299, 304  (1932)).            ___________     ______________            Moreover, the Double Jeopardy clause protects against dangers            caused by multiple prosecutions  in "separate proceedings for            charges  arising out  of  a single  transaction or  course of            conduct,  not  multiple  charges  in  the  same  proceeding."            United States v. Barrett, 933  F.2d 355, 360 (6th Cir. 1991);            _____________    _______            cf.  Powell, 469  U.S. at  65 (where  there are  inconsistent            __   ______            verdicts, the Double Jeopardy  clause prevents the government                                         -5-                      Defendant also assigns as  error the judge's denial            of his motions  for acquittal  under Fed. R.  Crim. P. 29.2              In   addition  to  the  inconsistency  he  perceives  in  the            verdicts,  defendant  argues   that  there  was  insufficient            evidence to prove that he had  an intention to defraud.  Even            when the verdicts are  actually inconsistent, we  necessarily            review  the  sufficiency   of  the  evidence  to   support  a            conviction   on  one   count  "independent   of  the   jury's            determination  that the  evidence  on  the  other  count  was            insufficient."    Powell, 469  U.S.  at  67.   Surveying  the                              ______            totality of the  evidence in the light most  favorable to the            prosecution, we must affirm denial  of a Rule 29 motion where            sufficient evidence was produced "to allow a rational jury to            conclude beyond  a reasonable  doubt that  the defendant  was            guilty  of the charged offense[]."  Gonzalez-Torres, 980 F.2d                                                _______________            at 790.                                            ____________________            from   challenging  the   acquittal,   but  nothing   in  the            Constitution requires that  defendant receive a new  trial on            the conviction).              2.  Defendant makes the salient point that the court may have            erred in  reserving its ruling on the  defendant's motion for            acquittal at the close of the government's case.  A ruling at            that point appears to be mandatory under Fed. R. Crim. P. 29.            See Burks v. United  States, 437 U.S. 1, 11 n.5  (1978).  The            ___ _____    ______________            error, nevertheless,  was not  prejudicial  to the  defendant            because  the  government's   evidence  on  both  counts   was            sufficient to  go to the jury at that time.  See 2 Charles A.                                                         ___            Wright, Federal  Practice and  Procedure: Criminal  2d    462                    ______________________________________________            (1982 & supp. 1993) (citing cases).                                             -6-                      There was sufficient evidence of defendant's guilt.            The prosecution  proved that,  without permission,  defendant            endorsed a treasury check in Thelma Rosendo's name, deposited            it into his own account, and returned the money only after an            indictment  issued against  him.   In  addition to  the usual            inference  that arises  from  the  behavior  so  proved,  the            government also produced evidence that over a two year period            defendant  persisted  in  denying  to  Rosendo  that  he  had            obtained  the  $5000.   When  confronted by  a  special agent            investigating   the   matter,  defendant   finally   admitted            depositing the check  to his own account and  using the money            for  his  own  purposes.   While  defendant's  trial attorney            argued,  and defendant reiterates  here, that there  may have            been other,  innocent reasons  for defendant's  behavior, the            government "need  not exclude every reasonable  hypothesis of            innocence,   provided  the  record  as  a  whole  supports  a            conclusion  of guilt beyond  a reasonable doubt."   Gonzalez-                                                                _________            Torres,  980 F.2d  at  790.   Here,  the  record as  a  whole            ______            supports the defendant's conviction on Count Two.                      For  the reasons  stated,  the  judgment  below  is            affirmed.            ________                                         -7-
