
USCA1 Opinion

	




          March 5, 1992     UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 90-1581          No. 90-1619                                    UNITED STATES,                                      Appellee,                                          v.                                   HOWARD W. YOUNG,                                Defendant, Appellant.                                _____________________                                     ERRATA SHEET             Please make  the following corrections to the opinion in the             above case issued on January 28, 1992:             On the cover sheet:   add the  words "by Appointment of  the             Court" after Ms. Berry's name.             Page 14,  line 10:   replace  the period at  the end  of the             sentence with a semicolon and add the following:                       see also  United States v.  McGill, ____                       ___ ____  _____________     ______                       F.2d ___,  ___ (1st Cir.  1992) [No. 91-                       1145, slip op. at 3-4]; United States v.                                               _____________                       Dockray,  943 F.2d  152,  155 (1st  Cir.                       _______                       1991).  But see, e.g.,  United States v.                               ___ ___  ____   _____________                       Casperson,  773  F.2d  216, 222-24  (8th                       _________                       Cir.  1985);  United States  v. Hopkins,                                     _____________     _______                       744  F.2d 716,  717-18 (10th  Cir. 1984)                       (en banc).  Cf. Green v. United  States,                                   ___ _____    ______________                       474   U.S.   925   (1985)  (White,   J.,                       dissenting from denial of certiorari and                       noting divergence among circuits).        January 28, 1992   UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                 FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 90-1581        No. 90-1619                                    UNITED STATES,                                      Appellee,                                          v.                                   HOWARD W. YOUNG,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Janis M.  Berry by  Appointment  of the  Court with  whom Ivan  B.            _______________                                           ________        Knauer and Ropes & Gray were on brief for appellant.        ______     ____________            Cerise  Lim-Epstein, Assistant  United States  Attorney, with whom            ___________________        Wayne A. Budd, United States Attorney, was on brief for appellee.        _____________                                 ____________________                                 ____________________                       BREYER,  Chief  Judge.   Howard  Young, a  lawyer,                                ____________             administered  Veterans' Administration  funds as  a guardian             for a disabled World War II  veteran. See 38 U.S.C.    5502.                                                   ___             A jury, finding that Young wrongly used the veteran's  money             for his own purposes, convicted him of embezzlement and mail             fraud. 38 U.S.C.    3501;  18 U.S.C.    1341.  The  district             court imposed a twelve month prison sentence.  Young appeals             his convictions and the sentence.  We affirm both.                                          I                                      The Facts                                      _________                       The  evidence  permitted  the  jury  to  take  the             underlying facts as follows:                            1.   On  July 1,  1970,  the  Bristol  County                       Probate  Court appointed  Young  (an attorney  and                       former judge)  guardian  for a  veteran  receiving                       benefits from the Veterans' Administration (VA).                            2.   Young normally kept the  veteran's money                       invested  in safe securities, such as certificates                       of  deposit,   held   by  Merrill   Lynch   in   a                       guardianship  account.   By the  end of  1985, the                       veteran's fund amounted to more than $250,000.                            3.   In  August 1985  Young filed  a personal                       bankruptcy petition.                             4.   Between  June 1986  and June  1987 Young                       withdrew  about  $250,000 from  the  Merrill Lynch                       guardianship  account.   Young  deposited most  of                       this money in the bank  account of Tomar Farms,  a                       company  that invested  in  racehorses.    Young's                       daughter  owned  Tomar Farms,  and  Young  was the                       company's  president,  treasurer, clerk,  and sole                       director.   In return for this  money, Tomar Farms                                         -3-                                          3                       (through  Howard  Young,  its   president)  signed                       promissory  notes, to  Howard  Young as  guardian,                       paying 12%  interest,  payable upon  maturity  two                       years later.  Tomar  Farms also signed a "security                       agreement" pledging to  the guardian, as security,                       a  horse  called  "Supreme  Roman"  and  all other                       subsequently  acquired  "livestock."   Tomar Land,                       another  company  that   Young  operated  and  his                       daughter   owned,  gave  the   guardian  a  second                       (unrecorded) mortgage on a farm in Kentucky, which                       mortgage     (perhaps      through     inadvertent                       misstatement) said that it  was security for money                       advanced  "by Tomar  [Farms] to  Guardian," rather                       than the other way around.                               5.   In  1986  Tomar Farms  bought  the horse                       Supreme Roman for $175,000, payable over time.  It                       also  invested $28,000  in a  racehorse investment                       partnership called  the "No  I Won't Stable."   By                       the  end of  1987,  however, Tomar  Farms'  stable                       investments  had  proved unprofitable:  its horse,                       Supreme  Roman, was  repossessed (for  Tomar Farms                       failed to  keep up  payments), and Tomar  Land had                       sold its Kentucky farm.                            6.   In 1987  the VA  noticed that  Young had                       not filed his guardianship  accounting information                       for  1986.    It sent  him  a  series of  letters,                       followed  by  telephone   calls,  and   eventually                       obtained a  court order requiring him  to file the                       account by January  1988.  In March 1988, he filed                       accounting information for both 1986 and 1987, but                       he  left  blank  the   sections  where,  in  prior                       accounts,   he  had   listed  the   Merrill  Lynch                       securities.   He also left blank the space for his                       signature.   In April  1988,  he supplemented  his                       1986 and 1987  filings, listing as primary  assets                       "mortgage  secured note[s]  receivable."   In  the                       April  cover  letter,  he  said  that, because  of                       declining interest rates, he had                            decided  to  transfer  the   long  range                            certificates  of deposit  to a  two year                            program  of  real estate  and bloodstock                            investment [in a company that] . . . has                            among its owners  certain members of  my                                         -4-                                          4                            family  who  have  expertise   in  these                            areas.  This  new investment  is in  the                            form  of notes payable  on September 15,                            1988 and secured by mortgages.                        In  further  correspondence  with  the  VA,  Young                       described   the   virtues   of  the   "bloodstock"                       business,  explained  that  he  ran  the  relevant                       corporations (but held no ownership interest), and                       he added  that Supreme  Roman, the Kentucky  farm,                       and the investment in the No I Won't Stable (which                       would,  he  wrote,  "provide  total   proceeds  of                       something in excess  of $10,000,000") secured  the                       loans.  On June 27, 1988, he wrote the VA  that he                       was  "enclosing"  the  "real  estate  mortgage and                       Security Agreement that  is the formal  collateral                       for the  series of  six (6) notes  which represent                       the money invested."                            7.   Tomar Farms did not pay back the  loans,                       nor did it pay interest, and, in October 1988, the                       Probate Court  appointed a  new  guardian for  the                       veteran's estate, which  (though the jury did  not                       learn  this)  was reimbursed  for  the  loss by  a                       bonding company.                                          II                            The Meaning of "Embezzlement"                            _____________________________                       The jury convicted Young  of violating 38 U.S.C.               3501(a)  (current version  at  38 U.S.C.    6101(a)),  which             makes it a crime for                              a guardian . . .  having charge and                            custody in a fiduciary  capacity of                            money .  . . paid under  any of the                            laws administered  by the Veterans'                            Administration . . .  [to] embezzle                            or in any manner misappropriate any                            such money . . . .                                          -5-                                          5             Young says that  the evidence  does not permit  the jury  to             find him guilty of violating this statute because he did not             "embezzle"  any money.  The district court, he adds, did not             understand what "embezzlement"  means; it therefore  wrongly             permitted the jury to  convict him on the basis  of evidence             insufficient  to  show that  he did  more  than make  a poor             investment decision.                       We disagree.   The crime of  embezzlement has long             had  a clear  meaning.   In the eighteenth  century, English             courts held that  only those  who took money,  not those  to                                               ____             whom money  was lawfully entrusted, could  commit common law                                      _________             larceny.  Rex v.  Bazeley, 2  Leach 835,  168 Eng.  Rep. 517                       ___     _______             (1799); see also Rex v. Waite, 1 Leach 28, 168 Eng. Rep. 117                     ___ ____ ___    _____             (1743).     Consequently,   Parliament  enacted   the  first             embezzlement  statute,  designed   to  prohibit,  say,  bank             tellers or guardians from converting the (lawfully obtained)                                                                ________             money of others to their own use. See Bazeley, 168 Eng. Rep.                                               ___ _______             at 523-24  (discussing statute,  39 Geo.  III,  c. 85);  see                                                                      ___             generally 3 Charles E. Torcia, Wharton's Criminal Law   395,             _________                      ______________________             at 398-402 (1980).   More  than one hundred  years ago,  the             Supreme Court referred  to embezzlement's "settled technical             meaning,"  United  States v.  Northway,  120  U.S. 327,  334                        ______________     ________             (1887), recently  described as "the fraudulent conversion of                                         -6-                                          6             the  property of  another by  one who  is already  in lawful             possession of it." 2 Wayne R. LaFave & Austin W. Scott, Jr.,             Substantive  Criminal Law     8.6, at  368 (1986)  (numerals             _________________________             omitted).                        The  notion  of  "fraudulent  conversion,"  at the             heart  of embezzlement, may sound obscure,  but, in fact, it             is  not.   It  essentially refers  to,  say, a  bank teller,             trustee, or guardian using money entrusted to him by another             person for his own purposes or  benefit and in a way that he             knows the "entruster"  did not intend  or authorize.   Thus,             one basic source says that the                       word "conversion" within the  meaning of                       embezzlement  statutes  is a  fraudulent                       appropriation  of a  thing to  one's own                       use  and  beneficial  enjoyment,  or  an                       unauthorized assumption  and exercise of                       dominion or right  of ownership over  it                       in  defiance of,  or  exclusion of,  the                       owner's rights.              29A C.J.S.  Embezzlement   11(a), at  26  (1965)  (footnotes                         ____________             omitted).  Another says that "fraudulent conversion" is                        fraudulently withholding, converting, or                       applying [property that  is lawfully  in                       one's  possession] to  or for  one's own                       use and  benefit,  or to  [the] use  and                       benefit of any person other than the one                       to whom the money or property belongs.              Black's  Law Dictionary 662 (6th ed. 1990).  And cases offer             _______________________             such statements as                                          -7-                                          7                       The  gist  of   [embezzlement]  is   the                       appropriation to the defendant's own use                       of  property  delivered  to  him  for  a                       specified  purpose  other  than his  own                       enjoyment of it.             People v. Parker, 235  Cal. App. 2d 100, 44 Cal.  Rptr. 909,             ______    ______             914  (3d Dist. 1965) (citing  cases).  An  embezzler, like a             thief or a swindler, may commit the crime in any of a myriad             of different ways. See  People v. Swanson, 174 Cal.  App. 2d                                ___  ______    _______             453,  344 P.2d  832,  836 (3d  Dist.  1959) ("'There  is  no             settled mode  by which  this appropriation must  take place,             and it may occur in any one of the  numberless methods which             may suggest itself  to the particular individual.   The mode             of  embezzlement  is  simply  [a]   matter  of  evidence.'")             (quoting  Leonard v.  State, 7 Tex.  App. 417,  444 (1879)).                       _______     _____             But, in each instance, the embezzler will have acted for his             own purposes  and contrary to  authorization.  He  will have             "fraudulently  converted"   property  entrusted  to  him  by             another.                       The record here provides more than enough evidence             to permit the  jury to  find embezzlement.   The jury  could             conclude that Young was in financial trouble, that the Tomar             companies that his daughter owned were in financial trouble,             and that Young wanted to find money for those firms, to help             his family, and  thereby to  help himself.   The jury  could                                         -8-                                          8             also conclude that  his use  of the  guardianship money  for             this purpose  was not  authorized, and was  contrary to  the             intent of  the "entruster,"  because (1) the  investment was             unusually risky,  and (2) the investment  created an obvious             conflict between, on the  one hand, his desires as  a parent             and duties as a corporate officer (to obtain ready financing             for  the companies), and, on the other, his obligations as a             guardian (to invest soundly for the benefit of the veteran).             See  Johnson v. Witkowski, 30 Mass. App. Ct. 697, 573 N.E.2d             ___  _______    _________             513,  519,  review denied,  411 Mass.  1104, 581  N.E.2d 481                         ______ ______             (1991);  Whitney v. Whitney,  317 Mass. 253,  57 N.E.2d 913,                      _______    _______             916 (1944) ("'The  law frowns upon any act on  the part of a             fiduciary which  places interest  in antagonism to  duty, or             tends to that result.'") (quoting North Carolina R.R. Co. v.                                               _______________________             Wilson,  81 N.C. 223, 230 (1879)); George G. Bogert & George             ______             T. Bogert, The Law of Trusts and Trustees   543(J), at  308-                        ______________________________             09  (1978);  90  C.J.S.  Trusts     248(a),  at  247  (1955)                                      ______             ("trustee  must  act  for  the beneficiaries,  and  not  for             himself in antagonism to the interests of the beneficiaries;             he is prohibited . . .  from placing himself in any position             where  his self-interest  will,  or may,  conflict with  his             duties as trustee") (citing cases).                                         -9-                                          9                       The   jury   could  conclude   that   Young  acted             fraudulently because,  among other  things, his letters  and             responses  to  the VA  state, or  imply,  that he  held good             security for the loans, long after that security (the  horse             Supreme Roman and the Kentucky farm) had become worthless.                         Above  all, the  jury could  find that  Young knew                                                                     ____             that  he was acting  contrary to the VA's  intent and to his             authority  to  invest  the  veteran's money  because:    (1)             Young's conduct clearly  violated his fiduciary obligations.             See, e.g., In re Estate of Stowell, 595 A.2d 1022, 1025 (Me.             ___  ____  _______________________             1991) (fiduciary may not  lend to himself); Attorney General                                                         ________________             v.  Flynn, 331 Mass. 413, 120 N.E.2d 296, 302 (1954) (same);                 _____             Attorney Grievance Comm'n v. Pattison, 292 Md. 599, 441 A.2d             _________________________    ________             328,  332 (1982) ("fiduciary may not make a loan, secured or             unsecured,  unto himself");  Restatement (Second)  of Trusts                                          _______________________________              170(1),  comment l,  at  369 (1959)  (trustee cannot  "lend             trust  money to himself"); 2A  Austin W. Scott  & William F.             Fratcher, The Law  of Trusts    170.17, at  385-86 (4th  ed.                       __________________             1987) ("trustee cannot properly lend trust funds to himself.             This  is true even  though by the  terms of the  trust he is             given  the widest  powers  of investment.")  (citing cases).             (2)  The jury knew that Young was an attorney, and attorneys             normally  understand the rudiments  of fiduciary obligation.                                         -10-                                          10             And,  (3) the  jury  also knew  of  Young's long  delays  in             responding to VA inquiries.  Those delays, and the nature of             the   ultimate  responses,   also  could   indicate  Young's             knowledge  that what  he was  doing was  wrong.   See United             _________                                         ___ ______             States  v. Strickland, 509 F.2d 273, 276 (5th Cir. 1975) (in             ______     __________                3501  prosecution,  "concealment  and  falsification  may             reveal a consciousness  of guilt  and so help  to carry  the             prosecutor's burden, or indeed, as  to intent, may carry  it             alone").                         From  this evidence,  the  jury  could  reasonably             conclude  that Young  (1) intentionally  used the  veteran's                                       _____________             money, of which he was guardian, (2) for his own benefit and                                                  ___             purposes and (3) contrary to the intent or authorizations of                              ________             the guardianship.  He thereby "fraudulently converted"  that             money and therefore is guilty of embezzlement.                       Young   makes  several   additional,  unconvincing             arguments  to the contrary.   First, he says  that, ex ante,                                                                 __ ____             one might  have thought his investments would not fail, that             he did not "appropriate" the money but simply "borrowed" it,             and  that, at worst, he  committed a civil,  not a criminal,             wrong.  The success or  failure of the investments, however,             is beside the point; a bank teller who plays the horses with             the  bank's  money has  embezzled it,  even  if he  wins and                                         -11-                                          11             replenishes the till, even with interest.  Young's borrowing                                                                _________             of the money is what constitutes the misappropriation.  And,             it is well established  that the use of loan  documents will             not  legitimate  acts  otherwise constituting  embezzlement.             See, e.g., Young v. State,  44 Ohio App. 1, 184 N.E.  24, 27             ___  ____  _____    _____             (1932) ("The  giving  of  a  note for  money  received  from             another,  if  a  mere incident  to  the  carrying  out of  a             fraudulent  scheme, does not  prevent the act  from being an             embezzlement.")  (citation omitted);  Stecher v.  State, 202                                                   _______     _____             Wis. 25, 231 N.W.  168, 170 (1930) (same); State  v. Larson,                                                        _____     ______             123 Wash.  21, 211 P. 885,  888 (1923) ("The  mere fact that             the  transaction may  take  the form  of  a loan  would  not             necessarily deprive  it  of its  criminality.");  Reeves  v.                                                               ______             State, 95 Ala. 31, 11 So. 158, 163 (1892).             _____                       Second, Young says that  he intended to return the             money, whether or not the Tomar companies failed, that there             is  no evidence  to the  contrary, and,  that, consequently,             there is no  embezzlement.   He cites, in  support, a  brief             phrase of Learned Hand,  describing the statutory offense as             "converting [the property]  unconditionally." United  States                                         _______________   ______________             v. Lewis, 161 F.2d 683, 684 (2d Cir. 1947) (emphasis added).                _____             The word "unconditionally," however,  has nothing to do with             any  issue  before us;  Judge Hand  used  it to  contrast an                                         -12-                                          12             unauthorized  "pledge" (where  the  fiduciary  would  likely             receive  the  property  back)   with  a  conversion  of  the             property.    Regardless,  an  "intent to  return"  money  or             property  is  not a  defense  to a  charge  of embezzlement.             United  States v. Angelos, 763 F.2d 859, 861 (7th Cir. 1985)             ______________    _______             ("it  is irrelevant  to  a charge  of embezzlement  that the             embezzler intended to  return the money  he embezzled --  or             even that he  did return  it"); United States  v. Coin,  753                                             _____________     ____             F.2d 1510, 1511  (9th Cir.  1985) (per curiam);  2 LaFave  &             Israel, Substantive Criminal Law   8.6(f)(3), at 380 ("It is                     ________________________             uniformly  held that  the intent  to restore  the equivalent             property  . .  . is  no defense  to embezzlement.")  (citing             cases).                       Third, Young says that,  if the statute applies to             his actions here, it is unconstitutionally vague. See United                                                               ___ ______             States v. Anzalone,  766 F.2d 676, 680 (1st  Cir. 1985).  We             ______    ________             see nothing vague, however, about legal terminology used for             nearly two  hundred years.   Those  to  whom others  entrust             money can perfectly well understand that they are not to use             that   money   for   their   own   purposes,   contrary   to             authorization,  and in a fraudulent way.  If Young means, by             this argument,  simply to repeat that he did not know he was                                         -13-                                          13             not supposed to  invest the  veteran's money as  he did,  we             shall simply repeat that the jury could find otherwise.                       Fourth,  Young  complains   specifically  of   the             judge's failure  to give several proposed  jury instructions             that  embodied his view  of the law.   Insofar as  he argues             that the judge should have instructed the jury  that "intent             to  return" is a  defense, he is, as  we have already noted,             wrong on  the law. See  Coin, 753 F.2d  at 1511 ("intent  to                                ___  ____             return  property  is  not   a  defense  to   embezzlement").             (Indeed, some model  jury instructions specifically  include             the charge, "the  fact that the defendant may  have intended             to repay the  funds is not a defense." Manual  of Model Jury                                                    _____________________             Instructions for the  Ninth Circuit    8.06A, at 119  (1985)             ___________________________________             (18 U.S.C.   656).)                         Insofar as Young argues that the judge should have             told  the jury  that he  had  to have  a specific  intent to             defraud, or  that  the judge  should have  pointed out  that             simple negligence, or actions  taken in good faith, are  not             criminal,  he received  the  instructions to  which the  law             entitles him.   The judge told  the jury that the  law "will             not  punish somebody  who  does not  have criminal  intent,"             that  such intent  means  the action  "is  done with  a  bad             purpose, either  to disobey or  to disregard the  law," that                                         -14-                                          14             the act is not culpable if  done "because of some mistake or             accident or otherwise innocent reason,"  that "[n]egligence,             bad  judgment,  neglect, will  not  support  a violation  of             Section  3501," and  that  the "government  must prove  that             there was an embezzlement or misappropriation done willfully             and intentionally.  Not by inadvertence or by carelessness."             The judge's instructions  follow standard jury  instructions             on  such matters. See, e.g., 1 Edward J. Devitt & Charles B.                               ___  ____             Blackmar, Federal  Jury Practice and Instructions, Civil and                       __________________________________________________             Criminal    14.03, at 377 (3d ed. 1977) (specific intent); 2             ________             Edward J. Devitt,  Charles B. Blackmar & Kevin  F. O'Malley,             Federal Jury Practice  and Instructions, Criminal     30.03-             _________________________________________________             04,  at  238-50 (4th  ed.  1990)  (embezzlement); 2  Federal                                                                  _______             Criminal Jury Instructions of  the Seventh Circuit 82 (1984)             __________________________________________________             (18  U.S.C.   656), see  also United States  v. McGill,                                      _______________________     ______  ____             F.2d     ,      (1st Cir. 1992) [No. 91-1145, slip op. at 3-                  _____ ____             4];  United States v. Dockray,  943 F.2d 152,  155 (1st Cir.                  _____________    _______             1991).  But see,  e.g., United States v. Casperon,  773 F.2d                     _______   ____  _____________    ________             216, 222-224 (8th Cir. 1985); United  States v. Hopkins, 744                                           ______________    _______             F. 2d  716, 717-18 (10th Cir. 1984) (en banc).  Cf. Green v.                                                             ___ _____             United States,  474 U.S.  925 (1985) (White,  J., dissenting             _____________             from  denial of  certiorari and divergence  among circuits).             And,  they were  legally  sufficient. See  United States  v.                                                   ___  _____________                                         -15-                                          15             Nivica, 887 F.2d 1110, 1124 (1st  Cir. 1989) (citing cases),             ______             cert. denied, 494 U.S. 1005 (1990); New England Enterprises,             _____ ______                        ________________________             Inc. v. United States,  400 F.2d 58, 71-72 (1st  Cir. 1968),             ____    _____________             cert. denied, 393 U.S. 1036 (1969).             _____ ______                       Finally, Young points to two cases which, he says,             show that  the evidence was  insufficient to convict  him of             embezzlement.   We do not find  these decisions particularly             relevant.   In one of them, Giragosian v. United States, 349                                         __________    _____________             F.2d 166 (1st Cir.  1965), a bank officer approved  loans to             financially  irresponsible  persons.   This  Court reversed,             because there was no evidence that the officer knew that the                                                            ____             recipient was financially irresponsible, and  so no evidence             of any  intent to defraud the  bank. Id. at 168-69.   In the                                                  ___             other,  United States v. Gens, 493 F.2d 216 (1st Cir. 1974),                     _____________    ____             the defendants  made loans to  one party, knowing  the money             would be given to another party.  We found that, because the             third party was a  financially capable party responsible for             the loans,  there was no  evidence that the  defendants knew             that they should not make loans of the sort in question. Id.                                                                      ___             at 222.   As we have  explained, however, in this  case, the             record  contains sufficient  evidence  that Young's  actions             constituted embezzlement and that he knew he should not lend                                         -16-                                          16             the guardianship funds  to companies that  he or his  family             controlled.                                          III                                 The Questioned Juror                                 ____________________                       Young  argues that  the district  court coercively             intruded  into jury deliberations  by questioning  one juror             after the jury had begun to consider the case.   While it is             unusual for a judge to call a juror out of deliberations and             question her, the  facts of  this case make  clear that  the             judge  was  justified in  speaking with  the juror  and that             nothing he said was coercive.                       After  the  first day  of jury  deliberations, the             jury  clerk happened  to notice a  particular juror  come to             pick up  her check.  The clerk was surprised to see that the             juror  was participating on the panel,  for she recalled the             juror  having said to her,  at the start  of jury selection,             that she  (the juror)  feared she  could not  be fair.   The             clerk thought,  although she was not certain, that the juror             had mentioned that  religious convictions would prevent  her             from reaching  a decision.   The clerk  then reported  these             earlier events to the judge.  The judge, in  the presence of             counsel, questioned  the clerk  under oath.   The prosecutor             and defense counsel also examined the clerk.  And, the judge                                         -17-                                          17             questioned a court security officer who said he believed the             same juror had told  him, during the trial, that  she wished             to switch seats with an alternate juror.                       At this  point, the judge, over  defense counsel's             objection, called in the juror and questioned her briefly in             the  presence  of counsel.    The  questioning proceeded  as             follows:                       THE COURT:  . . . please,  would you sit                       for a moment, please, with us.                          I've called you down to talk with you                       for  a moment about  a conversation or a                       remark or . .  . a communication you may                       have   had   with   the  court   officer                       yesterday.                       JUROR NO. 8: Mm-hmm.                       THE  COURT: And we're  not sure  what it                       was, and  we don't know if  it's because                       you have some physical discomfort or bad                       hearing or any other  reason that we can                       help you  with and  make  it easier  for                       you,  but it was told to us that you may                       have wanted to trade with another juror.                       We don't  know.   We don't know  why you                       wanted to do it.  We thought --                       JUROR NO. 8: I am --                       THE COURT: --  we'd have you come  here,                       and  we thought  it  might be  something                       physical  or you were  cold or  you were                       hot.                       JUROR NO. 8: No,  no, nothing to do with                       that.                       THE  COURT:  But  you did  tell  him you                       wanted to trade?                                         -18-                                          18                       JUROR NO. 8: Yes, if I  could.  I didn't                       know  if it was possible or  not.  And I                       mentioned it to him to see his reaction.                       And he didn't think it was.                          So -- my reason, you want to know?                       THE COURT: Yes.                       JUROR NO. 8: My reason is like the Bible                       says, Do  not throw the first stone, you                       know,  if you  have not  sinned.   And I                       hate  to  judge  somebody  and   make  a                       mistake.  I do want to do what's right.                          And in another way, I don't feel like                       I'm qualified to judge.  Because I don't                       think I'm so educated enough  on law and                       stuff   to  realize   everything  that's                       happened  here. .  . .  I don't  think I                       understand fully everything.              The  judge  responded  that,   "we're  not  going  to  press             you . . .  because there are some things that a person feels             that only that  person feels."   He noted that she  had been             "picked" by  the attorneys, assured  her that she  was smart             and educated enough to serve as a juror, and then went on:                       THE COURT:  Maybe I  didn't ask you  the                       right question, maybe.  I don't know.  I                       just simply  didn't  ask you  the  right                       questions that would have allowed you to                       come forth, but if you had, I would have                       asked you what I said  right here: . . .                       you're  not  unqualified.    You're  not                       uneducated.   You tell  me, do you  have                       some belief?  Do you have  some feeling?                       Do you have some teachings?                       JUROR NO. 8: My only -- my  only -- like                       I  say, not judging somebody, and in the                       Bible -- and  I feel  like my  religious                       teaching -- I'm not that  religious, but                       yet I feel that if I judge him or anyone                                         -19-                                          19                       else -- I shouldn't judge, you know what                       I mean?  That's my feeling.                       THE COURT: Doesn't leave us in any --                       JUROR  NO. 8: If I have to do it, I have                       to do it.   But I  feel like, you  know,                       it's just wrong, religiously.                       THE COURT: Well --                       JUROR  NO. 8:  I know  what I  feel, you                       know, but if  I have to  be a juror  and                       have  to do it, I can do it; but it's my                       feeling --  that's  why the  other  lady                       says she was so willing and wanted to do                       it.   I said, Geez, why  not change with                       her.   She  is so  willing.   She is  --                       those are the only reasons she said.                       THE COURT: Every alternate says, they go                       down and  say, Why did you  keep me here                       for two weeks if you're not going to use                       me?                          I   hope   this   hasn't   made   you                       uncomfortable.                       JUROR  NO.  8:  It   made  me  a  little                       nervous.                       THE COURT:  We're trying to do the right                       thing  for  the  system, and  for  which                       we're trying  to do the right  thing for                       everybody.   So we  had to talk  to you.                       It was  my decision to talk  to you, not                       theirs.   I may ask  you to go  back.  I                       may  not ask you to  go back.   I hope I                       haven't  talked  you  into   doing  your                       duties by saying it the way I said.  All                       I meant to say  was, Don't feel that you                       cannot do your job.  Maybe you need some                       more instruction.  Maybe you want me --                       JUROR NO. 8: I kind of feel like I can't                       -- in my mind I  know what I think, what                       my outcome would be, but I can't say it.                                         -20-                                          20                       You  know,  but yet  sometimes  it still                       goes back to the religious belief.                       THE COURT: Let me  talk to counsel for a                       minut  [sic] please,  okay?   Would  you                       just step  out for  a minute?   Don't go                       too far.                        After  this  colloquy,  the  court  consulted with             counsel.    Defense counsel  agreed  that  the juror  should             continue to serve.  The court called in  the entire jury and             explained:                       I'm sorry for the  delay.  A  procedural                       matter came to my attention which had to                       be resolved.   It  does not  affect your                       deliberations.  It  does not affect your                       continuing to deliberate as a jury.  You                       should   not   ask,  speculate,   guess,                       consider in any way what this procedural                       matter   was.     Counsel  and   I  have                       discussed  it, and we  are content to go                       forward  with  this  jury as  chosen  by                       these   counsel,    because   they   are                       confident  that the  jury will  view the                       evidence, listen to my instructions, and                       render  a  fair  and  impartial  verdict                       regardless of the consequences  which is                       your sworn duty.              The jury then continued  to deliberate.  Later that  day, it             found the defendant guilty.                       In our view, the court's basis for calling  in the             juror  for  questioning (to  examine  a  special problem  of             potential bias)  was reasonable, for the  court had adequate             reason  to  believe  that  she  had  a  special  problem  of             potential bias that had not been disclosed during voir dire.                                         -21-                                          21             The procedure followed was a fair and careful one, with both             counsel  present  throughout.  See, e.g.,  United  States v.                                            ___  ____   ______________             Taylor, 562  F.2d 1345, 1365-66 (2d  Cir.) (emphasizing need             ______             for trial court to  confer with counsel before communicating             with juror and  to report  any communications  immediately),             cert.  denied,  432  U.S.   909  (1977);  United  States  v.             _____  ______                             ______________             Zeehandelaar, 498 F.2d 352,  358 (2d Cir. 1974) ("it  is not             ____________             improper  for  the  trial  court,  in  the exercise  of  its             discretion,  to interview  individual members  of a  jury so             long  as counsel  are present")  (citing cases);  cf. United                                                               ___ ______             States v. United States Gypsum Co., 438 U.S. 422, 460 (1978)             ______    ________________________             ("Any ex  parte meeting  or communication between  the judge                   __  _____             and the  foreman of  a  deliberating jury  is pregnant  with             possibilities  for  error.").    And,  the  questioning  was             reasonable  and  did  not  place the  juror  under  improper             pressure, subtle or otherwise, to reach a verdict, let alone             a  particular one. Cf.  United States v.  Flannery, 451 F.2d                                ___  _____________     ________             880, 883-84 (1st Cir.  1971) (discussing supplemental charge             under Allen v. United  States, 164 U.S. 492,  501-02 (1896),                   _____    ______________             urging jury to reach verdict).  We can find no legal error.                                          IV                                   Other Arguments                                   _______________                                         -22-                                          22                       Appellant  Young  makes a  large  number of  other             arguments, none of which raises any significant legal issue.             We shall briefly indicate our  reasons for rejecting each of             them:                       1.   Young   points   out   that  the   government             initially  indicted him  on  one count  of embezzlement.  38             U.S.C.   3501.  After he moved to dismiss the charge (on the             ground  that the  statute was unconstitutionally  vague) the             government brought a five  count superseding indictment,  in             which it added four counts of mail fraud, 18  U.S.C.   1341,             based on Young's  correspondence with the VA.   Young claims             that this amounts to vindictive  prosecutorial behavior, and             that  the   district   court  should   have  dismissed   the             superceding  indictment or,  at  least, permitted  Young  to             examine   the   grand   jury   minutes   for   evidence   of             vindictiveness.                       Of   course,   a   prosecutor   may   not   behave             vindictively. See United States  v. Marrapese, 826 F.2d 145,                           ___ _____________     _________             147 (1st Cir.), cert. denied, 484 U.S. 944 (1987).  But, the                             _____ ______             mere bringing of a  new indictment with added counts  is not             in  itself   vindictive  behavior,  nor  does   it  raise  a             presumption   of   vindictiveness   sufficient  to   require             investigation  of  grand  jury  minutes.  United  States  v.                                                       ______________                                         -23-                                          23             Goodwin,  457  U.S.  368,  382  (1982)  (no  presumption  of             _______             vindictiveness  where prosecutor  brought four  count felony             indictment  after defendant  demanded jury  trial on  single             misdemeanor count).  Young's motion to dismiss the charge on             the   ground    that    the   embezzlement    statute    was             unconstitutional offers  an obvious, and  legitimate, reason             why   the  prosecutor   would  want   to  add   other,  less             controversial,  charges to  the indictment.  See id.  at 381                                                          ___ ___             ("[d]efense counsel routinely file pretrial motions . . . to             challenge the sufficiency and form of an indictment .  . . .             It  is unrealistic  to assume  that a  prosecutor's probable             response to such motions"  is vindictive); cf. United States                                                        ___ _____________             v. Krezdorn, 718 F.2d  1360, 1365 (5th Cir. 1983)  (en banc)                ________             ("If  any . . .  combination of events  in those proceedings             should indicate  to a  reasonable minded defendant  that the             prosecutor's decision  to increase  the severity of  charges             was motivated by some purpose other than a vindictive desire             to deter or punish appeals, no presumption of vindictiveness             is created."), cert. denied, 465 U.S.  1066 (1984).  Nothing                            _____ ______             in the record  suggests any other motive.  No  access to the             grand  jury  minutes was  required.  See  Fed. R.  Crim.  P.                                                  ___             6(e)(3)(C)(ii).                                         -24-                                          24                       2.   Young attacks his  mail fraud convictions  on             the  ground   that  the   later  mailings  of   letters  and             explanations  to the VA had  nothing to do  with the earlier             fraud, namely  his lending  the guardianship money  to Tomar             Farms.  He is right that the mail fraud statute applies only             to mailings  that have  to do  with the  fraud, 18 U.S.C.                1341;  United States v. Maze,  414 U.S. 395, 399-400 (1974);                    _____________    ____             United States v. Pietri Giraldi,  864 F.2d 222, 224-25  (1st             _____________    ______________             Cir. 1988) (per  curiam), but his mailings to the  VA have a             proper connection, for they helped to conceal the fraud. See                                                                      ___             United  States v. Pacheco-Ortiz, 889 F.2d 301, 305 (1st Cir.             ______________    _____________             1989) (per curiam)  ("for the mailings to  be considered 'in             furtherance of  the scheme, "the scheme's  completion or the             prevention of its detection must have depended in some way"'             on the mailings") (citations  omitted).  Contrary to Young's             contention,  the mailings did not  help to expose the fraud.             The jury  could readily  find that the  letters deliberately             created  false impressions  in the  mind of the  reader, and             they  were therefore "part of the execution of the scheme as             conceived . . . at the  time" they were written, even though             they later  may have returned  "to haunt the  perpetrator of             the fraud."  Schmuck v.  United  States, 489  U.S. 705,  715                          _______     ______________             (1989).                                         -25-                                          25                       3.   Young   says   that  the   government  cannot             prosecute him for both embezzlement and mail fraud, because,             in  his  view, Congress'  use  of  a "specific  statute"  to             prohibit embezzlement "displaces"  the "general" mail  fraud             statute; that is  to say,  Congress did not  intend the  two             provisions  to apply to the  same conduct.   Young relies on             Busic v.  United States,  446 U.S.  398, 406-08 (1980),  and             _____     _____________             Simpson  v. United States, 435  U.S. 6, 15  (1978), cases in             _______     _____________             which the  Supreme Court held  that Congress did  not intend             federal courts  to apply a "sentence  enhancement" contained             in  a general statute (enhancing the sentence when a firearm             is  used in commission of  any felony), 18  U.S.C.   924(c),             and  also  to  apply  a  certain,  more  specific  "sentence             enhancement" statute (enhancing the sentence when a  firearm             is used in  the commission of a  particular felony).  We  do             not understand how these cases are relevant here.                       We concede,  of  course, that  specific  statutory             language,  or special  features  of two  statutes, or  other             circumstances,  could  show a  Congressional  intent  not to             permit  conviction of a person under two statutes in respect             to  a specific event.  But,  there is no such intent evident             here.   The two statutes  at issue --  embezzlement and mail             fraud -- have different elements: an offender can embezzle a                                         -26-                                          26             veteran's  money without  using the  mails, and  an offender             also  can fraudulently  use the  mails without,  say, taking             entrusted  money.    Ordinarily,  if  a  course  of  conduct             _________             violates   two   statutes  with   different   elements,  the             government may  prosecute, and  punish, under each  of them.             See Blockburger v. United States, 284 U.S. 299,  304 (1932);             ___ ___________    _____________             United States v. Faulhaber, 929 F.2d 16, 19 (1st Cir. 1991).             _____________    _________             Cf. Edwards  v.  United States,  312  U.S. 473,  484  (1941)             ___ _______      _____________             (rejecting contention that "in so far as the [Securities Act             of  1933] prohibits  the  fraudulent sale  of securities  by             mail,  it repeals by  implication the provisions  of the old             mail fraud  statute in  so far  as they  cover securities");             Faulhaber, 929  F.2d at 19 (upholding application  of   1341             _________             and securities fraud statute to same conduct); United States                                                            _____________             v. Brien, 617 F.2d 299, 309-10 (1st  Cir.) (  1341 and anti-                _____             fraud provisions  of Commodities Futures Trading Act), cert.                                                                    _____             denied,  446  U.S.  919 (1980).    We  can  find no  special             ______             circumstances here that would suggest the contrary.                        4.   Young  points  to  two  letters  to  the  VA,             introduced  at  trial, which,  he  says,  were not  properly             authenticated and  may have been  altered.  Having  read the             record,  we   note   that,   eventually,   a   VA   employee             authenticated the letters.  We can find no indication of any                                         -27-                                          27             alteration, or any prejudice  to Young, and we see  no error             in  their admission. See  United States v.  Browne, 891 F.2d                                  ___  _____________     ______             389,  392 (1st  Cir. 1989)  (trial court's  determination of             authenticity of evidence reviewed for abuse of discretion).                       5.   Young complains that the prosecutor's closing             argument used inflammatory hypotheticals.   We have read the             hypotheticals,  which sought  to take  the jury  through the             prosecutor's  case, step  by  step, by  giving a  simplified             account of embezzlement (a  guardian simply taking cash from             the  Merrill Lynch  account and  using it  to invest  in his             horse  business)  and  building   up  to  the  more  complex             circumstances  revealed by  the evidence.   We  can find  no             error. See United States v. de Leon Davis, 914 F.2d 340, 345                    ___ _____________    _____________             (1st Cir. 1990) (prosecutor's closing did not surpass "outer             limit of permissible argument").   Young also complains that             the prosecutor's use  in closing of a chart, summarizing the             transactions,  was unfair,  but,  given that  the chart  was             based on  information already in evidence,  we disagree; the             court did not err in permitting its use.                       6.   The  district  court   used  the   Sentencing             Guidelines to calculate Young's punishment.  The  Guidelines             apply only  to "offenses committed after"  November 1, 1987.             Sentencing  Act of  1987, Pub.L.  No. 100-182,    2(a),  101                                         -28-                                          28             Stat. 1266 (1987), codified at 18 U.S.C.   3551 note.  Young                                ________ __             argues that  the Guidelines  therefore do not  apply to  his             conviction for embezzlement, since all the acts constituting             the crime were completed before that date.                       We disagree.   The court  could properly  conclude             that the  VA letters constituted  an effort  to conceal  the             embezzlement  and that  the  embezzlement  scheme  therefore             continued into 1988 when  Young wrote the letters.   And, it             is well  established that  the Guidelines apply  to offenses             involving a "course of  conduct" that begins before November             1,  1987, but continues  beyond that date.  United States v.                                                         _____________             David, 940 F.2d 722, 740-41 (1st Cir.), cert. denied, 112 S.             _____                                   _____ ______             Ct. 605 (1991); United States v. Arboleda, 929 F.2d 858, 871                             _____________    ________             (1st Cir. 1991); see  also United States v. Fazio,  914 F.2d                              ___  ____ _____________    _____             950, 959  n.14 (7th Cir.  1990) (collecting  cases).   Young             argues that previous  cases where this rule has been applied             concerned conspiracies,  while his case involves  an offense             that  he committed alone.  However, he has not suggested any             reason why this distinction should make a difference, and we             cannot think of one.                        The judgment of the district court is                       Affirmed.                       _________                                         -29-                                          29
