

                      [NOT FOR PUBLICATION]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

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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.

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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.

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          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

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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

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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.

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          For the foregoing reasons, the judgment of the district

court is affirmed.

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