Youssef v. United States
27 A.3d 1202
| D.C. | 2011Background
- Appellant Bachar Youssef engaged in a week-long scheme (Sept. 7–13, 2007) that overdrawn about $16,000 from his Chevy Chase Bank account through 16 self-issued checks deposited across DC banks that lacked sufficient funds.
- Chevy Chase advanced credit for deposits that had not cleared, allowing appellant to make numerous withdrawals totaling thousands beyond his actual balance and credit limit.
- Appellant admitted to gambling the misappropriated funds in Atlantic City when interviewed by a Secret Service agent two months later.
- Indicted July 29, 2009 for first-degree fraud, second-degree theft, and eleven counts of first-degree theft; fraud alleged a single scheme, theft counts hinged on individual high-value withdrawals.
- The trial court considered and then amended the indictment to consolidate into one fraud count and one theft count covering Sept. 7–13, with defense counsel expressing no objection to amendment.
- A general unanimity instruction was given; the jury later convicted appellant of fraud and theft after correcting a minor scrivener’s error on the verdict form.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the convictions merge under Double Jeopardy | Youssef argues cumulative punishment for the same scheme. | The District permits concurrent punishment for related fraud and theft within a single scheme. | Convictions do not violate Double Jeopardy; concurrent sentences permitted by statute |
| Whether a special unanimity instruction was required sua sponte for fraud and theft | The government’s amendment created a single scheme, requiring unanimity on the overarching act. | Unanimity instruction not required for a single scheme under fraud; not preserved for theft. | No plain error for fraud; error existed for theft but not preserved; general unanimity instruction largely sufficient |
| Whether error in not giving a sua sponte special unanimity instruction for theft affected fairness | The theft counts encompassed multiple incidents requiring special unanimity. | Exhaustive evidence per incident would sustain a unanimous verdict without a special instruction. | Not plain error; evidence per theft incident was substantial; risk of non-unanimous verdict was remote |
Key Cases Cited
- Richardson v. United States, 526 U.S. 813 (1999) (jury need not unanimously decide underlying brute facts of a scheme)
- Schad v. Arizona, 501 U.S. 624 (1991) (unanimity not required for underlying facts in a count alleging a scheme)
- Scarborough v. United States, 522 A.2d 869 (D.C.1987) (special unanimity instruction required when one charge covers multiple incidents)
- Shivers v. United States, 533 A.2d 258 (D.C.1987) (plain error standard for failure to request unanimity instruction)
- Comford v. United States, 947 A.2d 1181 (D.C.2008) (extreme plain error standard; reiterates when absent instruction is reversible)
- Ellison v. United States, 919 A.2d 612 (D.C.2007) (fifth amendment double jeopardy protections on multiple punishments)
- Missouri v. Hunter, 459 U.S. 359 (1983) (legislature may authorize cumulative punishment under two statutes)
- North Carolina v. Pearce, 395 U.S. 711 (1969) (double jeopardy limits on second prosecutions)
- Lindbergh Byrd v. United States, 598 A.2d 386 (D.C.1991) (concurrent punishments for same course of conduct allowed by DC statute)
- Albernaz v. United States, 450 U.S. 333 (1981) (Blockburger framework for cumulative punishment)
- Sutton v. United States, 988 A.2d 478 (D.C.2010) (DC sees allowance of multiple convictions and concurrent sentences for same act)
- United States v. Sayan, 296 F.3d 319 (D.C. Cir. 1992) (unanimity not required for series of similar acts constituting a single fraud scheme)
- United States v. Frazin, 780 F.2d 1461 (9th Cir. 1986) (no special unanimity instruction for a single unified fraud scheme)