
USCA1 Opinion

	




          December 11, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2223                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                          v.                                   GEORGE F. WOOD,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                          ___________________                                 ____________________                                        Before                         Torruella and Selya, Circuit Judges,                                              ______________                             and Zobel,* District Judge.                                         ______________                                 ____________________            Terrence D.  Garmey with whom Karen  B. Lovell and Smith & Elliot,            ___________________           ________________     _______________        P.A. were on brief for appellant.        ____            Margaret  D.  McGaughey, Assistant  United  States Attorney,  with            _______________________        whom  Richard S.  Cohen, United  States Attorney,  and Thimi  R. Mina,              _________________                                ______________        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________        _____________________        * Of the District of Massachusetts, sitting by designation.            ZOBEL,  District Judge.    Appellant  was an  attorney in  private                    ______________        practice in Sanford, Maine.   In 1987, Philip Spang, Jr. ("Philip"), a        client and close personal friend, approached him and asked if he would        help obtain  the  forged  signatures of  Philip's  sons,  Timothy  and        Daniel,  on deeds to certain real estate.  Appellant initially refused        but then he  agreed and sought out the services  of William Lessard, a        private investigator in New  Hampshire.  Lessard promised to  locate a        forger, but after considering the legal consequences of such action he        contacted the Federal Bureau of  Investigation and agreed to cooperate        by wearing  recording equipment during his  encounters with appellant.        Appellant  and Lessard communicated by telephone and in person to plan        the forgeries.  After many such conversations, appellant was arrested,        charged  with and, following a trial, convicted  of two counts of wire        fraud in violation of 18  U.S.C.   1343.  He now asserts errors in the        charge to the jury and in  the admission of rebuttal testimony as well        as the government's argument with respect thereto.  We affirm.            The  underlying  facts are  substantially  undisputed.   Appellant        never denied that he sought to  obtain forged signatures on deeds.  He        claimed instead that he lacked the necessary fraudulent intent because        of the unusual way in which Philip conducted his real estate dealings.        Philip testified that in the 1940s and 1950s he invested significantly        in  real estate.   Hoping  to avoid  creditors and  inheritance taxes,        Philip  had  the deeds  prepared  in  the  names of  his  children  or        siblings.  These deeds, naming such  child or sibling as owner in fee,        were recorded.  With respect to many of  the transactions, Philip also        arranged for the "donee" to sign a deed conveying the same real estate                                          2        to  Philip.   The  latter  would keep  that  deed at  his  home, until        necessary, when he would  simply record it and thus divest the "donee"        of title.   Appellant was  familiar with Philip's  unique real  estate        arrangements and had, in fact, drafted and/or recorded a number of the        deeds.            During 1986  Philip and his wife  began to  have marital problems,        as a result of which his relationship with his sons Daniel and Timothy        became strained.  Thus, when, in 1987, Philip asked Timothy and Daniel        to deed to him  certain of the properties he had  purchased and put in        their names, neither would do so.   Philip testified that he  believed        Timothy  and Daniel had signed "return deeds" for these properties but        that he could not  find the documents.   He ultimately told  appellant        that the deeds were missing and that he wanted the latter's assistance        in obtaining the sons' forged signatures on duplicate deeds to replace        the  ones missing.  Appellant  testified that he  believed he was only        helping to  replace valid deeds  which had  been lost or  stolen,* and        that, in  any event, the forged  deeds would be used  only to convince        the  sons to sign new  deeds conveying title to  Philip so as to carry        out Philip's original intent.                                     ____________________        *   Appellant  also testified that  Philip told  him his  children had        cleaned  out his office in  the basement and  had stolen deeds, money,        coins, and his grandfather's gold watch.                                          3            Appellant asserts  first that  the trial  court's failure  to give        his  requested  jury  instructions  9,   10,  11  and  12  constitutes        reversible  error.**    He  argues  that  because  the  jury  was  not        instructed  as to the legal effect of  the return deeds the jury could        not fairly consider  the theory of his defense; namely,  that his good        faith belief in  the existence  of the return  deeds negated  criminal                                    ____________________        **  Defendant's Proposed Jury Instructions nine through twelve read as        follows:                                         (                      9                      )            Mr. Wood  has testified that he  believed that  Timothy and Daniel            Spang had signed deeds re-conveying to  their father, Philip,  the            property  which   Philip  had   deeded  to  them,   and  that   he            consequently  believed Philip and not Timothy and Daniel owned the            property.   He has testified that  he believed  Timothy and Daniel            could not be defrauded of property they did  not own.  If you find            that  the government has failed to disprove  Mr. Wood's contention            that he held this belief, then the government has failed to  prove            his  intent to commit  fraud and,  accordingly, you  must find him            not guilty.        (                      1                      0                      )            When a person signs  a deed and  delivers that deed to the  person            named  on the deed  as the new  owner, the  signer of  the deed no            longer  owns the property.  It is not necessary for the deed to be            recorded in the Registry of Deeds  for this transfer of  ownership            to occur.        (                      1                      1                      )            If  you find  that George  Wood  believed  that Timothy  Spang and            Daniel  Spang  signed  deeds  re-conveying  to  their  father  the            property he had previously deeded to  them, and that he  therefore            believed Timothy Spang and Daniel Spang  did not own the  property            and could not  be defrauded of  it, then  you must  find that  the            government  has failed  to prove  that Mr. Wood  had an  intent to            defraud and, therefore, you must enter a verdict of not guilty.        (                      1                      2                      )            If  you find  that George  Wood  believed  that Timothy  Spang and            Daniel  Spang  signed  deeds  re-conveying  to  their  father  the            property he  had previously  deeded to  them, then  you must  find            that the  government has  failed  to prove  that Mr.  Wood had  an            intent to defraud and, therefore, you  must enter a verdict of not            guilty.                                          4        intent.                                            5            The Court's refusal to give  requests 9, 11 and 12 requires little        discussion.    They  are  clearly argument  and  the  Court  correctly        declined to give  them.  See United States v.  Gonzalez, 933 F.2d 417,                                 ___ __________________________        446 n.19 (7th Cir. 1991).            We review the failure to read proposed instruction 10 in light  of        the record as a whole, considering the charge as given.  United States                                                                 _____________        v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989), cert. denied, 494 U.S.        _________                                       ____________        1005  (1990).    Although  a  defendant  is  entitled  to  request  an        instruction on his or her theory  of the case, United States v. Noone,                                                       ______________________        913 F.2d 20, 30 (1st Cir. 1990), cert. denied, 111 S. Ct. 1686 (1991),                                         ____________        a trial court's refusal to  give it is reversible error only  if "'the        instruction (1)  is substantively  correct; (2) was  not substantively        covered in the charge actually delivered to the jury; and (3) concerns        an important  point  in the  trial  so that  the  failure to  give  it        seriously impaired  the defendant's  ability to effectively  present a        given defense.'"   United  States v.  Gibson, 726  F.2d 869,  874 (1st                           _________________________        Cir.)(quoting  United States v. Grissom,  645 F.2d 461,  464 (5th Cir.                       ________________________        1981)), cert. denied, 466 U.S. 960 (1984).                  ____________            The trial judge properly declined to  instruct the jury in  accord        with  request number  10.   First, it  is not  accurate.   The request        implies  that delivery  of  a signed  but  unrecorded deed  is  always        sufficient to transfer ownership of the property.  The cases appellant        cites, however, hold  only that  an unrecorded deed  may be  effective        and  binding  between  the  grantor and grantee, without                                           6        discussing  the effect of such a transfer  on third parties.  See Buck                                                                      ___ ____        v. Babcock, 36 Me. 491, 493 (1853); Lawry v. Williams, 13 Me. 281, 284        __________                          _________________        (1836).   Indeed,  the  recording statute  cited by  appellant clearly        states  that an  unrecorded conveyance  is not  effective  against any        party except the grantor and those with actual notice.  Me. Rev. Stat.        Ann. tit.  33,   201 (West  1988).  Neither the cases  nor the statute        support the broad concept of "ownership" advanced by appellant.            Second,  even if request  number 10  accurately stated  the law it        was  properly rejected  because it is  irrelevant to  this case.   The        judge  instructed, without objection, that  record title is  a form of                                                    ____________        property  whether or  not  it  represents  full  legal  title  to  the                                                         ____________        property.  Because record  title is something of value,  the intention        to   deprive  another  of  such   title  by  means   of  deception  or        misrepresentation of  facts constitutes  fraudulent intent.    Timothy        and  Daniel indisputably held record title to the real estate at issue        when  defendant  sought to  obtain their  forged  signatures.    Until        Philip recovered and recorded  the alleged return deeds they  thus had        rights in  the real estate, enforceable  against any third  party.  So        long  as those  deeds remained  unrecorded Timothy  and Daniel  had an        interest in land of which they could be defrauded.            Finally, the charge  given was sufficient to frame the defendant's        theory of the case for the jury.  The court gave detailed and complete        instructions  regarding  the  good  faith  defense,  defining  "honest        intention"  and   "good  faith,"  and  explaining   that  "good  faith        constitutes a complete defense to one charged with an offense of which        fraudulent intent  is an essential element."  In sum, we find no error                                          7        in   the  trial   court's  failure   to  read   defendant's  requested        instructions 9, 10, 11 and 12.            Appellant next claims error in the  admission of the testimony  of        former members of his office staff in the prosecution's rebuttal case.        In  particular,  he  objects  to  statements  that they  had  observed        appellant signing  names other than  his own to  documents as  well as        witnessing and  notarizing signatures  without the signatory  present;        that he had asked them  to perform similar acts and, in  one instance,        to back date a deed involving Daniel Spang.            Although the government argues  that appellant, by failing to make        contemporaneous objection,  has not  preserved this issue  for appeal,        defense counsel  did  generally  and  timely object  to  the  rebuttal        evidence.   Before the testimony was admitted the defense raised three        objections:   (1) because  appellant admitted  that he  had sought  to        obtain  "duplicate" signatures  on deeds,  the rebuttal  testimony was        irrelevant to any  disputed fact;  (2) the prejudicial  effect of  the        evidence outweighed its probative value; and (3) rebuttal was improper        because appellant had offered no character evidence.              The conduct of a trial, including  decisions whether to permit the        introduction of  rebuttal evidence, resides with  the sound discretion        of the trial judge.   Borges v.  Our Lady of the  Sea Corp., 935  F.2d                              _____________________________________        436, 442 (1st  Cir. 1991).  The  record before us evinces  no abuse of        that  discretion.  "Rebuttal  evidence may  be introduced  to explain,        repel, contradict or disprove an adversary's proof."  United States v.                                                              ________________        Laboy,  909 F.2d 581,  588 (1st Cir. 1990).   Appellant testified that        _____        his  effort  to  procure  unauthorized  signatures  was  a  "one  time                                          8        occurrence."    The proffered evidence thus  directly contradicted the        testimony of appellant himself.   It was also  highly relevant on  the        issue of  appellant's intent and  thus admissible  under Rule  404(b).        Fed. R. Evid. 404(b).  Moreover, the trial court's careful weighing of        the probative  value  and prejudicial  effect  of the  evidence  fully        comported with Rule 403.  Fed. R. Evid. 403.  "By design, all evidence        is meant to be prejudicial; it is only unfair prejudice  which must be        avoided."   United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st                    __________________________________        Cir. 1989).            Finally, appellant asserts error  in the Court's  refusal to issue        a  curative instruction  in response  to a  comment by  the prosecutor        during  closing argument.***    The trial  court has  broad discretion        to  control the scope of closing arguments.   United States v. Wilbur,                                                      _______________________        545  F.2d 764, 767  (1st Cir. 1976).   Having reviewed  the record, we        conclude that  the Court below  did not abuse  its discretion in  this        instance.   The comment was made in  answer to the closing argument of        the defense  and fell properly  within the scope  of issues  raised at        trial.   Therefore, neither the prosecutor's  question during argument        nor  the Court's  refusal  to  give  a curative  instruction  provides        grounds for reversal.              The judgment of conviction is affirmed.                                    ____________________        *** Referring to the testimony of one of appellant's former employees,        the  prosecutor  asked, "[i]f  that  is  sloppy  practice, ladies  and        gentlemen, where does the line of criminal act begin?"                                          9
