USCA1 Opinion
November 18, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2425
UNITED STATES,
Appellee,
v.
JOHN MEDINA-LUGO,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
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Before
Cyr, Boudin and Stahl,
Circuit Judges.
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John Medina Lugo on brief pro se.
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Charles E. Fitzwilliam, United States Attorney, and Miguel
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A. Pereira, Assistant U.S. Attorney, on brief for appellee.
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Per Curiam. Defendant, an attorney, was tried by a
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jury on a two count indictment charging that he (1)
knowingly, willfully and with intent to defraud, falsely made
or forged the endorsement, "Thelma Rosendo," on a United
States treasury check, in violation of 18 U.S.C. 510(a)
(Count One); and (2) knowingly, willfully and with intent to
defraud, passed, uttered or published a treasury check
bearing the forged or falsely made endorsement of its payee,
Thelma Rosendo, in violation of 18 U.S.C. 510(b) (Count
Two).
The jury returned a verdict of acquittal on Count
One and conviction on Count Two. Defendant challenges the
verdict and the judge's denial of his motions for acquittal.
We summarize the facts in the light most favorable
to the government, drawing all reasonable inferences in favor
of the verdicts. United States v. Gonzalez-Torres, 980 F.2d
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788, 789 (1st Cir. 1992); United States v. Amparo, 961 F.2d
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288, 290 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992). In
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1989 defendant served as an attorney for one Vincent
Bazemore, who was in jail following his arrest in a criminal
matter. A friend of Bazemore's, Thelma Rosendo, helped to
arrange for Bazemore's bail by obtaining $5000 from a Virgin
Islands' company which owed some money to Bazemore. With
defendant's legal assistance, Rosendo pledged the $5000 with
the Clerk of the United States District Court in Puerto Rico,
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to secure Bazemore's release. Rosendo was named as the
surety on the bond.
By September, 1990, Bazemore's case was closed.
Rosendo, who had moved to St. Thomas, again enlisted
defendant as an attorney, this time to help retrieve the
$5000 she had pledged. (Rosendo testified that the clerk had
earlier refused to release the money to Bazemore because he
was not the nominal surety). Defendant made a motion, and
promptly obtained from the clerk a treasury check made
payable to Rosendo. Without Rosendo's knowledge or
permission, however, defendant endorsed the check in the name
of Thelma Rosendo. He also endorsed his own name and, again
without permission, deposited the money into his own bank
account.
Over the next two years, Rosendo travelled to
Puerto Rico between eight and twelve times, in an effort to
regain the $5000. She contacted defendant in person on each
trip, but defendant denied having the money. Finally,
Rosendo wrote a letter to Chief Judge Gierbolini. An
investigation ensued, during which defendant admitted
depositing the check to his own account and, motivated by
financial problems, using the money without Rosendo's
permission. After the indictment issued, defendant returned
$5000 to Rosendo (who gave the money to its rightful owner).
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Defendant told Rosendo then that he had earlier lost her
mailing address.
Defendant perceives the verdicts as logically
inconsistent. Without attempting to retrace his contentions
in detail, the crux of his argument is that the crime charged
in Count One (forgery of an endorsement) is like a predicate
or component crime, the elements of which are fully included
in the crime charged in Count Two (passing a check with a
forged endorsement). As a result of his acquittal under
Count One, defendant argues, the judge was required to set
aside his conviction under Count Two. Defendant cites no
cases supporting this unusual interpretation of the statutory
crimes here, and we know of none. Cf. United States v.
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Hopkins, 853 F.2d 118 (2d Cir. 1988) (a violation of 18
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U.S.C. 510(a)(2) requires only that a person who passes a
Treasury check with a forged endorsement act with an intent
to defraud; there is no requirement even that he specifically
know that the endorsement is forged).
In any event, "[i]t is well settled that
inconsistency in a criminal verdict does not require setting
the verdict aside." Gonzalez-Torres, 980 F.2d 788 (1st Cir.
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1992) (citing cases). The rule is as much a product of
lenity as it is of fairness and finality.
[I]nconsistent verdicts -- even verdicts that
acquit on the predicate offense while convicting on
the compound offense -- should not . . . be
interpreted as a windfall to the Government at the
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defendant's expense. It is equally possible that
the jury, convinced of guilt, properly reached its
conclusion on the compound offense, and then
through mistake, compromise, or lenity, arrived at
an inconsistent conclusion on the lesser offense.
United States v. Powell, 469 U.S. 57, 65 (1984).
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Moreover, the verdicts were not necessarily
inconsistent. Although both counts required proof of an
intention, each included a different criminal act. Count One
required proof that defendant had an intent to defraud when
he forged the endorsement. Count Two required an intent to
defraud when defendant passed, uttered or published the
check. The jury reasonably could have concluded that
defendant formed a criminal intention only after he falsely
endorsed the check in Thelma Rosendo's name. That conclusion
would have been entirely consistent with defendant's own
various out-of-court admissions, as reported in the
witnesses' testimony.1
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1. For similar reasons, we reject defendant's argument that
his simultaneous acquittal on one charge, and conviction on
the other, violated the Double Jeopardy clause. The clause
protects against multiple prosecutions or multiple
punishments for the same offense. United States v. Dixon,
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113 S. Ct. 2849 (1993). There is no question of multiple
punishment here and the `same elements' test is not
implicated since each crime charged contains an element not
included in the other. Dixon, 113 S. Ct. at 2851 (citing
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Blockburger v. United States, 284 U.S. 299, 304 (1932)).
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Moreover, the Double Jeopardy clause protects against dangers
caused by multiple prosecutions in "separate proceedings for
charges arising out of a single transaction or course of
conduct, not multiple charges in the same proceeding."
United States v. Barrett, 933 F.2d 355, 360 (6th Cir. 1991);
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cf. Powell, 469 U.S. at 65 (where there are inconsistent
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verdicts, the Double Jeopardy clause prevents the government
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Defendant also assigns as error the judge's denial
of his motions for acquittal under Fed. R. Crim. P. 29.2
In addition to the inconsistency he perceives in the
verdicts, defendant argues that there was insufficient
evidence to prove that he had an intention to defraud. Even
when the verdicts are actually inconsistent, we necessarily
review the sufficiency of the evidence to support a
conviction on one count "independent of the jury's
determination that the evidence on the other count was
insufficient." Powell, 469 U.S. at 67. Surveying the
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totality of the evidence in the light most favorable to the
prosecution, we must affirm denial of a Rule 29 motion where
sufficient evidence was produced "to allow a rational jury to
conclude beyond a reasonable doubt that the defendant was
guilty of the charged offense[]." Gonzalez-Torres, 980 F.2d
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at 790.
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from challenging the acquittal, but nothing in the
Constitution requires that defendant receive a new trial on
the conviction).
2. Defendant makes the salient point that the court may have
erred in reserving its ruling on the defendant's motion for
acquittal at the close of the government's case. A ruling at
that point appears to be mandatory under Fed. R. Crim. P. 29.
See Burks v. United States, 437 U.S. 1, 11 n.5 (1978). The
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error, nevertheless, was not prejudicial to the defendant
because the government's evidence on both counts was
sufficient to go to the jury at that time. See 2 Charles A.
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Wright, Federal Practice and Procedure: Criminal 2d 462
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(1982 & supp. 1993) (citing cases).
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There was sufficient evidence of defendant's guilt.
The prosecution proved that, without permission, defendant
endorsed a treasury check in Thelma Rosendo's name, deposited
it into his own account, and returned the money only after an
indictment issued against him. In addition to the usual
inference that arises from the behavior so proved, the
government also produced evidence that over a two year period
defendant persisted in denying to Rosendo that he had
obtained the $5000. When confronted by a special agent
investigating the matter, defendant finally admitted
depositing the check to his own account and using the money
for his own purposes. While defendant's trial attorney
argued, and defendant reiterates here, that there may have
been other, innocent reasons for defendant's behavior, the
government "need not exclude every reasonable hypothesis of
innocence, provided the record as a whole supports a
conclusion of guilt beyond a reasonable doubt." Gonzalez-
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Torres, 980 F.2d at 790. Here, the record as a whole
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supports the defendant's conviction on Count Two.
For the reasons stated, the judgment below is
affirmed.
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