
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2167                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                ANTONIO MEDINA PUERTA,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Morris M.  Goldings  with  whom  Richard S.  Jacobs  and  Mahoney,            ___________________              __________________       ________        Hawkes & Goldings were on brief for appellant.        _________________            Timothy Q.  Feeley, Assistant  United States  Attorney, with  whom            __________________        Donald K. Stern, United States  Attorney, was on brief for  the United        _______________        States.                                 ____________________                                   October 21, 1994                                 ____________________                 BOUDIN, Circuit Judge.   On September  5, 1991, a  grand                         _____________            jury indicted  Antonio Medina  Puerta, charging him  with one            count of bank  fraud under 18 U.S.C.   1344  and one count of            transportation  in foreign commerce of stolen or fraudulently            obtained funds  under 18  U.S.C.    2314.   The  gist of  the            events  described  in  the  indictment was  that  Medina  had            deposited  a  $365 check  in  his  Bank  of  Boston  account,            knowingly  misrepresented the amount  as $365,000, ultimately            received  a  credit  of $365,000  to  his  account,  and then            transferred $350,000 of these fraudulently obtained funds  to            his account in an English bank.                 At arraignment  on October 8, 1991, the magistrate-judge            ordered  that pre-trial  motions by the  defense be  filed by            November 1, 1991.  On this deadline, Medina filed a number of            motions that were subsequently resolved.  Medina's trial date            was  repeatedly delayed,  largely at  his own  request, until            January  4, 1993.   In  the meantime,  on November  24, 1992,            following a  change of  counsel by  Medina,  his new  counsel            submitted five additional pre-trial motions, accompanied by a            motion seeking leave to file the motions late.                   One of these motions--with which  this appeal is in part            concerned--asked  that the  case be  dismissed on  the ground            that  it was  being  pursued in  breach of  a promise  by the            prosecutor  made in  1987  not to  prosecute  if Medina  made            restitution to the  bank of $200,000.  The government opposed                                         -2-                                         -2-            the motion  to file out of  time.  On December  30, 1992, the            district court denied the request to file motions out of time            (with exceptions  not here relevant), ruling  that good cause            had not been shown for the late filing.  The  court also said            that it had "nevertheless"  examined the substantive  motions            to see whether an  exception should be made in  the interests            of  justice; in giving a negative answer, the court found the            assertions made  in  support of  the motion  to dismiss  were            insufficient to justify an evidentiary hearing.                 Medina was tried in  January 1993.  The  evidence, taken            in the  light most  favorable to the  government, see  United                                                              ___  ______            States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, 63            ______    ____                               ____________            U.S.L.W.  3265 (U.S. Oct. 3, 1994), showed the following.  In            1986 Medina was a research associate at a non-profit research            organization  in  Boston  then  known  as  the  Eye  Research            Institute.  Medina  had been born and raised in Spain and was            fluent  in both English and Spanish.  He had Spanish graduate            degrees in  optics and engineering  and a graduate  degree in            electrical  engineering  from   Massachusetts  Institute   of            Technology.                   On November  3, 1986,  Medina deposited  a check  in his            account in  that branch of  the Bank  of Boston where  he did            most of  his banking.  The check was a bank check prepared by            Banco Central  of Spain, dated  October 30, 1986,  at Toledo,            Spain,  and  was   made  payable  to  Medina.    The  written                                         -3-                                         -3-            designation  of the  amount  was, in  Spanish, "Dolares  USA,            Trescientos Sesenta  Y  Cinco," which  translates  as  "three            hundred  and sixty-five  U.S. dollars."   There  was also  an            arabic-numeral expression of the amount in a small box on the            right-hand  side of  the check:   "USD  365,ooo."   The words            "First National Bank of Boston" appear on the check, and both            the  government and Medina have described it as a check drawn            on  Banco  Central's  own  checking account  at  the  Bank of            Boston.                 When  Medina  deposited  the  check in  his  account  on            November 3, 1986, he listed the amount on the deposit slip as            "$365,000."  Two  days later, on November  5, Medina returned            to   the   branch   and    requested   a   customer   service            representative,   Lisa  Popielski,  to   wire  $350,000  from            Medina's checking  account to an  account in England.   Apart            from  the  November 3  deposit,  Medina's  balance was  about            $3,000.   Popielski said that  she needed to  verify that the            check  had been collected and asked Medina to return the next            day.   When Medina returned on November 6, Popielski told him            that  the $365,000 credit  had been deleted  from his account            and the check had been returned to him by mail.  She told him            to bring  the check back to  her if he intended  to redeposit            it.                 The following day, November  7, Medina returned with the            check  and  Popielski told  Medina  that the  check  had been                                         -4-                                         -4-            returned for lack of his endorsement; he then signed the back            of  the check, Popielski filled out a second deposit slip for            him in  the amount  of $365,000,  and Medina  redeposited the            check into his account.   On November 12, Medina  returned to            the  bank and  signed a  wire transfer  order, directing  the            transfer of $350,000  to an  account in his  name at  Lloyd's            Bank in  Cambridge, England.   Later  that morning the  funds            were wired to England.                 When  interviewed by  the  FBI in  early December  1986,            Medina admitted that he had deposited the check but explained            that he thought  that the  check was funding  from a  Spanish            ministry  for  a  research grant  for  his  work  at the  Eye            Research Institute.   He  said  that he  had purchased  about            $150,000 worth  of equipment in  Spain where it  remained and            where  some  of the  research was  to  be conducted.   Medina            subsequently gave to the FBI a letter from a Spanish ministry            stating that a committee had agreed to propose the funding of            a grant.                 Medina  also submitted  to  the FBI  a summary  document            prepared  within  the  National Institutes  of  Health  which            recommended NIH approval of  a research application by Medina            with  proposed funding  of $282,286.   There was  evidence at            trial that  this application had never  been finally approved            and that, if it  had been funded, the Eye  Research Institute            and not Medina would have received the funds.  There was also                                         -5-                                         -5-            some evidence,  apparently disputed, that Medina  had in fact            purchased $138,755 in specialized equipment in Spain.                   At  trial  it  developed  that  the  bank  had  stumbled            repeatedly.   The processing section of the  bank had queried            Banco Central about  the check,  and on November  6, the  day            before Medina  had redeposited  the check, Banco  Central had            ______            wired  that the proper  amount of the  check was $365.   When            Medina  redeposited the check  on November  7, only  $365 was            debited  against  Banco  Central's  account,  but Medina  was            credited with a $365,000  deposit.  An interoffice adjustment            slip was prepared to reduce Medina's deposit by $364,635, but            Medina's account records were not corrected until on or about            November  25 when  most  of the  money  had long  since  been            transferred to England.                 Although Medina  did not testify, his  position at trial            was  that this was an  innocent misunderstanding.  Medina did            present  an expert witness  who was  familiar with  Spain and            Spanish  accounting  who gave  testimony  on the  differences            between  American and  Spanish practices  in the  writing and            punctuation  of   arabic  numbers  on  large   checks.    The            government's position was that  Medina had certainly read the            written  Spanish  words  on  the  check,  which  indisputedly            represented its amount as $365, and had known that he was not            entitled to $365,000.                                         -6-                                         -6-                 On January 28, 1993,  the jury convicted Medina  on both            counts.  Thereafter, Medina filed post-trial motions renewing            his request  for an  evidentiary hearing on  the government's            supposed  breach of  a  promise  not  to  prosecute.    In  a            supplemental memorandum, Medina said that new evidence showed            that the government had a motive to retaliate which explained            its  breach of  the alleged  promise not  to prosecute.   The            court denied the motions, calling the proffer inadequate.  On            September 30,  1993, the court sentenced Medina to 18 months'            imprisonment   and  required   that   Medina  pay   fines  or            restitution  in a total amount of $150,000.  The court stayed            the sentence pending this appeal.                 Medina's initial arguments on  appeal relate to his pre-            and post-trial requests for  a hearing on his claim  that the            government  breached  its   promise  not   to  prosecute   if            restitution were made.  The government says that the original            pre-trial  motion  was  submitted  late,  together  with  the            request for leave to  file; leave was not granted  because no            adequate excuse for the  delay was given; and that  should be            the  end of the  matter.  Medina,  scarcely acknowledging the            refusal  to  grant  his  motion to  file  late,  attacks  the            district court's ruling that  the proffer was insufficient to            justify an evidentiary hearing.                 We  see  no reason  to  choose  between the  alternative            grounds for denial of a hearing--lateness and lack of merit--                                         -7-                                         -7-            because each is adequate.  The original motion was filed long            after the deadline with no explanation other than a change of            counsel.  Where  the district  court refuses to  allow a  new            motion to be  filed out of  time, the standard  on appeal  is            abuse of  discretion.   E.g., United  States v.  Roberts, 978                                    ____  ______________     _______            F.2d 17, 21  n.5 (1st Cir. 1992).  If  the district judge had            rested solely  on the  lateness of  the pre-trial motion  and            refused  to  entertain a  post-trial  replicate  of the  same            motion, there would be no abuse of discretion.  Nor would the            district  court's  precautionary  comment  on  the  merits in            denying leave to file either remove the lateness objection or            alter our standard of review.                   The result is no different if we do consider the merits.            In substance, Medina's proffer asserted  that in July 1987 an            assistant U.S. attorney  advised Medina's  then counsel  that            the  government would not prosecute  Medina if he would agree            to  make restitution to the  bank in the  amount of $200,000.            The proffer then concluded:  "By the end of 1988, I  [Medina]            had paid the Bank of Boston an amount greater than $200,000."            Medina's  affidavit was  also  the basis  for the  post-trial            motion  making the  same request  for a  hearing on  the same            ground.                 This affidavit  does not  say that Medina  ever formally            accepted  the government's offer or that  his payments to the            bank were in  compliance with the  purported agreement.   Our                                         -8-                                         -8-            sense that the affidavit is the product of artful drafting is            reinforced by  indications that the Bank  of Boston recovered            substantial amounts by attaching Medina's account at  another            bank.    Medina  also  made  no  effort,  as  far  as we  can            ascertain, to remedy the  deficiencies in his affidavit after            they were  first noted by  the district  court.   Evidentiary            hearings are not  required when there  is no likely  prospect            that they will be  fruitful.  United States v.  McAndrews, 12                                          _____________     _________            F.3d 273, 280 (1st Cir. 1993).                 The  supplementary post-trial claim that the prosecution            was based on  a vindictive motive is scarcely  worth comment.            Medina's further affidavit on this  issue is both sketchy and            jumbled, but rests importantly on a lawsuit brought by Medina            against  the government.   The  government pointed  out in  a            motion  to strike  Medina's  submission that  the lawsuit  in            question was  brought after  Medina had  been indicted.   Its                                  _____            untimeliness aside,  Medina's new affidavit  added little  to            the  prior  one  and provided  no  independent  basis  for an            evidentiary hearing.                 Several  of Medina's  merits arguments  are significant.            We  start with those that relate only to bank fraud which was            the offense  charged in  count I  of the  indictment.   As it            stood  at the time Medina  deposited his check  (it has since            been twice  amended), the statute  in pertinent part  read as            follows:                                         -9-                                         -9-                 (a) Whoever knowingly executes, or  attempts to execute,                 a scheme or artifice --                       (1) to defraud  a federally chartered  or                      insured financial institution or                      (2) to obtain  any of the  moneys, funds,                      credits,  assets,  securities,  or  other                      property  owned by, or  under the custody                      or control of,  a federally chartered  or                      insured financial institution by means of                      false     or    fraudulent     pretenses,                      representations, or promises . . . .                      [shall be punished  as set  forth in  the                      statute].            18 U.S.C.   1344(a).                 Count  I  of  the  indictment charged  that  Medina  had            executed or attempted to  execute a scheme both to  defraud a            federally  chartered  or  insured  bank  and  to  obtain  its                                                     ___            property by false or fraudulent representations.   Consistent            with the statutory language, the district judge told the jury            that it  could convict on count I if it found either a scheme            to defraud or  a scheme to obtain property by  means of false                       __            or fraudulent representations.                 Medina's  first  objection  is  that   under  subsection            (a)(2), two  or  more misrepresentations  are  required1  and            that here,  according to Medina, the  government charged only            one misrepresentation and proved none at all.  The government            responds that the evidence  was adequate to show a  scheme to                                            ____________________                 1This issue was left open in United States v. Lilly, 983                                              _____________    _____            F.2d 300, 305 n.10  (1st Cir. 1992), and we  have no occasion            to decide it here.                                         -10-                                         -10-            defraud under subsection  (a)(1) so that  it does not  matter            whether  misrepresentations  need  to  be  multiple  or  were            adequately  proved under  subsection (a)(2).   But  here, the            false or fraudulent representations charge was also submitted            to  the jury  as an  alternative basis  for convicting  under            count  I.   Thus,  at  least in  theory, a  problem  might be            presented for the government if it had charged only one false            representation or failed to prove any.                 In  fact,  we  think  that  the government's  indictment            alleged multiple representations  and the evidence  permitted            the jury to find at least two.  The indictment charged Medina            with making  false and fraudulent "representaions" [sic], and            the district  court charged  the jury  that "representations"            were  required.    Although  the indictment  also  said  that            Medina's conduct involved submitting "a  check he represented            to be in the amount of  $365,000.00, knowing the check to  be            in  the  true amount  of  $365.00," we  do not  see  why this            generic  statement prevented the government from proving that            this representation was made more than once.                 As   for    the   adequacy   of   the    evidence,   two            misrepresentations could  easily have  been found.   Medina's            first deposit slip  said that the check was in  the amount of            $365,000 when the  words on the check  said plainly, although            in  Spanish, that  the amount was  $365.  When  the check was            redeposited on  November 7, Medina again  submitted a deposit                                         -11-                                         -11-            slip in  the larger amount.   Medina does not  claim that the            check  was  actually for  $365,000.    Instead  he says  that            Popielski completed the second deposit slip and that there is            no evidence to  show that  he (Medina) filled  out the  first            one.                 Ample evidence  showed that it was  Medina who submitted            the check on November 3 with a deposit slip in  the amount of            $365,000;  the  evidence  included  surveillance  photographs            showing  him   at  the  teller's  window   making  a  deposit            transaction  at the time stamped  on the bank  of his deposit            slip.  As for the redeposit on November 7, again confirmed by            a surveillance  photograph of Medina at  the teller's window,            it  is  irrelevant that  Popielski  wrote the  amount  on the            second deposit slip so long as Medina knowingly presented it.            Thus,  there was proof of at  least two false representations            by Medina, one on each presentation of the check.                 Medina's second argument on count I is that the district            court  erred  in  refusing to  instruct  the  jury  that "the            deposit of a  check alone [is  not] a misrepresentation"  and            that  "[a]  check  is not  a  factual  assertion  at all  and            therefore cannot be  characterized as true or  false."  These            requested  statements  were  drawn  from Williams  v.  United                                                     ________      ______            States,  458 U.S.  279 (1982),  where the  Court said  that a            ______            check was merely an order to pay funds and did not constitute            an implied representation that the one who made and deposited                                         -12-                                         -12-            it  actually had funds in the  account on which the check was            drawn.2  The  district court  refused to charge  the jury  in            this  case with the language drawn from Williams.  We believe                                                    ________            that its decision was correct.                 The  government in our own  case was not  relying on any            implied  representation  that  Medina had  funds  on  deposit            sufficient  to  cover  the  check.   Rather,  the  government            charged that in depositing the check Medina had affirmatively            misrepresented--at least through  the deposit slips--that the            check being deposited was one whose  face value was $365,000.            We have read both the indictment and the government's closing            arguments to the jury,  and conclude that there is  no chance            that the  jury misunderstood  the government's theory.   That            theory does not present the implied misrepresentation problem            addressed in Williams.                         ________                 Next, in  a very  brief argument, Medina  claims without            explanation that "the only possible victim" of  any scheme to            defraud in  the present case  would have been  Banco Central,            admittedly not  a federally chartered or insured institution.            The evidence showed the  Bank of Boston, which is  covered by            the statute,  was induced  by Medina's  misrepresentations to            pay out a large sum to Medina.  It is not clear  whether Bank                                            ____________________                 2Williams was  a  prosecution under  a false  statements                  ________            statute  of a defendant who  deposited in his  account in one            bank  a check--not covered by adequate funds--that he drew on            his account in a second bank.                                         -13-                                         -13-            of Boston might have had a claim against Banco Central or its            account   for  the  latter's   mistake  in  depicting  arabic            numerals; Banco Central, after all, had warned Bank of Boston            about the mistake before the redeposit.  But that possibility            does not alter the fact that Bank of Boston was the immediate            victim of the fraud.                 Finally, Medina makes the  interesting argument that the            jury might have convicted Medina without true unanimity, some            (but not all) jurors  believing that he had violated  section            1344(a)(1),  and  others  (but  not all)  believing  that  he            violated section 1344(a)(2).   Both the government and Medina            agree  that  the  two subsections  identify  separate crimes.            Accord United States  v. Bonnett, 877  F.2d 1450, 1455  (10th            ______ _____________     _______            Cir.  1989).   If so,  it follows  that Medina  could not  be            convicted of a crime  unless the jurors could all  agree that            at least one of the subsections had been violated.  This same            problem  is  sometimes  presented  where a  single  crime  is            defined by several alternative acts any one of which suffices                               ___________            for conviction.3                   The government  accepts that unanimity was  required but            cites  us to  a "general  rule" that "when  a jury  returns a            guilty  verdict  on an  indictment  charging  [in one  count]                                            ____________________                 3Compare United States v. Gipson, 553 F.2d 453 (5th Cir.                  _______ _____________    ______            1977), involving a statute  directed at anyone who "receives,            conceals,  stores, barters,  sells  or  disposes of"  certain            stolen  property.   See generally  3 W.  LaFave &  J. Israel,                                _____________            Criminal Procedure   23.7 (1984).            __________________                                         -14-                                         -14-            several acts in  the conjunctive, the  verdict stands if  the            evidence  is sufficient with respect  to any one  of the acts            charged."   United States v. Murray, 621 F.2d 1163, 1171 n.10                        _____________    ______            (1st  Cir.), cert.  denied, 449  U.S. 837  (1980).   See also                         _____________                           ________            Turner v. United States, 396 U.S. 398, 420 (1970).  But it is            ______    _____________            one  thing to say that the evidence is sufficient if adequate                                       ________            to  establish  any   one  of  several  acts  charged  in  the            alternative; it is quite another to take the general language            of  Murray  and  Turner to  foreclose  any  inquiry  into the                ______       ______            adequacy of the instructions.                            ____________                 Here, the government  concedes that two  separate crimes            were created by the two subsections.  Thus, we  see no reason            why  Medina would  not have  been entitled  on request  to an            instruction  that  the jury  had  to  agree unanimously  that            either section  (a)(1) or subsection (a)(2)  was violated (or                                   __            both).   Of course, where two separate crimes are charged but            each in a separate count, the problem  evaporates because the            jury  is told  that it  must  be unanimous  on each  count of            conviction.  Here, the government charged a violation of both                                                                     ____            subsections  in  a single  count,  and  Medina, probably  not            wishing  to be  charged with  three counts  rather than  two,            apparently did not argue that count I was duplicitous.  Thus,            the  risk  of  jury  confusion cannot  be  answered  here  by            pointing to the normal requirement that the jury be unanimous            on any count of conviction.                                           -15-                                         -15-                 The government  argues that  the district court  in this            case charged the jury that  it could find either a  scheme to            defraud  "or" a  scheme to  obtain monies  by means  of false            representations; that the government  had "to prove each part            of each offense beyond a reasonable doubt"; and that the jury            verdict must  be unanimous.   But these  instructions do  not            _______            clearly tell the jury that it had to be unanimous in  finding            within count I of  the indictment either a scheme  to defraud            ______            or  a scheme based on false representations.  That is perhaps            what  the  jury  would   have  understood,  but  it   is  not            inevitable.                 Still, the defense did not  ask for any clarification or            instruction  on this issue, so  reversal can be  had only for            plain error.  E.g., United  States v. Arias-Santana, 964 F.2d                          ____  ______________    _____________            1262, 1268 (1st Cir.  1992).  We see no  practical likelihood            that  the  jury  could  have  divided  along  the  lines  now            suggested  by Medina.  Although  in theory we  may be talking            about two  separate crimes, in this case the evidence offered            as to  count I made the  same conduct the basis  for both the                                     ____            fraud  and misrepresentation  branches of  count I.   Indeed,            that is probably why  the government charged both subsections            in a single count.  In all events, on this evidence, the jury                                                  ____            either had  to believe that Medina  violated both subsections            or  neither.  There was  no realistic possibility  of a split            verdict of the kind now conjectured by Medina.                                         -16-                                         -16-                 If  the trial judge had been asked to clarify the point,            quite likely  he would have told the jury that it had to find            unanimously either a scheme  to defraud or a scheme  based on            false  representations.  Probably he  was not asked  to do so            because  no actual  threat  existed here  of a  non-unanimous            verdict.  There was  not only no plain error but  arguably no            error  at all.  On  other facts--for example, where divergent            conduct  underlay the two  branches of subsection  (a) or the            same conduct  could realistically violate one  branch but not            the other--our view might be quite different.                 Medina's  next claim of error relates to count II of the            indictment in  which he was charged  with having "transmitted            and transferred in  foreign commerce money  in the amount  of            $350,000.00,  more or  less, knowing  the same  to have  been            stolen, converted and taken by fraud . . . ."  The statute in            pertinent part makes it  unlawful to "transport in interstate            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."  18 U.S.C.              2314.                 Medina  argues on  appeal  that under  this statute  the            property must have  been stolen  "before being  transported."            See  United States v. Tashjian, 660 F.2d 829, 840 (1st Cir.),            ___  _____________    ________            cert. denied,  454 U.S. 1102  (1981).   Here, Medina's  brief            ____________            says  blandly but  without  explanation, "no  money had  been                                         -17-                                         -17-            stolen  or taken  by  fraud at  the  time of  the  transfer."            Possibly  what Medina  intends to  argue  is that  the bank's            money was not stolen,  converted or taken by fraud  merely on            account  of  the  wrongful  credit  to  Medina's  account  on            November 7 because  at that time no  money had yet  been paid            out by the  bank.   Put differently, Medina  may be  claiming            that when transferred the money had not yet been stolen.                                                    ___                 We see no reason why the fraudulent  taking required any            more than  Medina's deposit of the check in Medina's account,            the  misrepresentations,   the availability  of the  money to            him, and  the requisite  scienter.  Popielski  testified that            the  $365,000  was  available  to Medina  for  withdrawal  on            November  10, at least two  days before the  wire transfer to            England.   True, the  bank could  have nullified  the deposit            before  the  transfer,  had  it  been  more  alert; but  from            November  10 onward the money  was just as  much available to            Medina as if it were cash stored under his mattress.                 Medina's final set of  arguments is directed to both  of            the counts against  him.   He starts  with a  straightforward            argument  that  the  Bank  of  Boston  could  not  have  been            defrauded of its money,  nor could the money have  been taken            by fraud,  since Banco Central informed Bank  of Boston prior            to the  second deposit on  November 7 that the  amount of the            check was  $365.  The  government concedes that  a defendant,            whatever his state of mind, cannot be convicted of possessing                                         -18-                                         -18-            drugs or  stolen property if  the substance is not  in fact a            controlled substance or the property not stolen.  E.g. United                                                              ____ ______            States  v. Rose,  590 F.2d  232, 235  (7th Cir.  1978), cert.            ______     ____                                         _____            denied,  442 U.S.  929 (1979); United  States v.  Oviedo, 525            ______                         ______________     ______            F.2d 881, 885-86  (5th Cir. 1976).  In such cases, of course,            a  change in  the  nature  of  the  property  can  defeat  an            essential element of the offense.                    The government may overstate  the matter in arguing that            "[i]n  contrast the crime of bank fraud focuses on Medina and            his state of mind, and not  on the conduct of the bank."   It            might  be  difficult  to  defraud an  individual,  or  obtain            property by fraud, if  the "victim" were well aware  that the            defendant's  statements  were untrue.    But  the analogy  is            unrealistic  as applied to a large bank which happens to have            the  true  facts  somewhere  in  its  files.    There  is  no            indication that Banco Central's warning was known to the bank            teller who accepted the check for credit  on November 7 or to            Popielski when she facilitated the deposit and authorized the            wire transfer.                 It  may well be that  for other purposes,  say under the            Uniform Commercial  Code, notice  to the bank  through proper            channels is, in some  sense and for some purposes,  notice to            everyone  within the bank.   But Medina did  defraud the bank            representatives with whom he dealt; and money was credited to            his  account and transferred out of the bank because of their                                         -19-                                         -19-            belief in his statements, and not  on some independent basis.            It  is  hard to  imagine any  reason  of practical  policy to            accept the unitary-victim argument that Medina may be urging.            Absent compelling authority, we reject the argument.                 Medina next says that the  same deposit and transfer has            been  charged as two separate offenses  in two counts, making            the indictment  multiplicitous.   This argument rests  on the            fact that in  part of  count I the  government mentioned  the            transfer  of $350,000  out  of Medina's  account.   The  same            transfer,  including a  reference to  the original  taking by            fraud, is the heart of count  II of the indictment.  Although            multiplicity is  forbidden by double jeopardy principles, the            use  of the  same  evidence or  conduct  in relation  to  two            different counts does not itself establish multiplicity.                 Even "where  the same  act or transaction  constitutes a            violation of  two distinct statutory provisions,  the test to            be  applied to determine  whether there  are two  offenses or            only one is whether  each provision requires [as an  element]            proof of a fact which the other does not."   United States v.                                                         _____________            Blockburger,  284 U.S. 299,  304 (1932).   Here, section 1344            ___________            required  proof that  a scheme  had been  executed against  a            federally  insured  bank;  section  2314  required  proof  of            interstate  or  foreign  transportation  of  stolen property.            Each provision thus requires proof that the other does not.                                         -20-                                         -20-                 Medina's last  argument is that the  evidence simply did            not permit a rational jury to find him guilty on either count            and, alternatively,  that the district court  should at least            have  ordered a new trial.  The  denial of a motion to direct            an acquittal is reviewed de  novo, United States v. Gonzalez-                                     __  ____  _____________    _________            Torres,  980 F.2d  788, 790  (1st Cir.  1992), and  the trial            ______            court's denial of a  new trial request is reviewed  for abuse            of discretion.  United  States v. Nickens, 955 F.2d  112, 116                            ______________    _______            (1st Cir.), cert. denied, 113 S. Ct. 108 (1992).  We need not                        ____________            differentiate  sharply,  because  in  this  case  the  jury's            verdict  was neither irrational nor against the weight of the            evidence.                 Medina's  conduct  was   largely  undisputed,  and   the            critical  issues involved  his knowledge  and state  of mind.            Absent a confession of guilt, the government's case could not            be air-tight.   Yet there was no  proof that Medina  had ever            applied  to a  Spanish ministry  for a  grant of  $365,000 or            expected such  a check from  Banco Central.   His persistence            and haste in getting the money deposited into his account and            then out of the country  were at least suspicious.  The  jury            must  certainly  have  thought  that  Medina's  story  of  an            innocent mistake  was fragmented,  improbable in a  number of            respects, and ultimately did not hang together.                 It is beside the point that the bank's  customer service            representative misread the check; there is no indication that                                         -21-                                         -21-            she could read Spanish, as Medina could.  She also had no way            of knowing whether Medina  might or might not be  expecting a            check in this  amount.   Medina's brief states  that his  own            expert  witness thought  that  the  value  of the  check  was            $365,000.   In fact, the expert, whose testimony would not in            any event be binding  on the jury, testified to the  value of            the check, "as  reflected in  that box," i.e.,  the box  that                                                     ____            contained the mistaken arabic numerals "$365,ooo."                 Finally, in an attempt  to bolster his lack of  evidence            claim, Medina's brief singles  out a variety of  comments and            arguments  made by the prosecutor that Medina says misled the            jury.  It appears that none of the statements was the subject            of  objection  at trial;  while one  or  two might  have been            subject to  adjustment, none is especially  troubling or even            remotely  close to  plain  error.   The prosecutor's  remarks            provide  no  reason to  hesitate  in  our  appraisal  of  the            evidence.                 Affirmed.                 ________                                         -22-                                         -22-
