STATE OF MAINE v. ROBERT K. LINDELL JR.
Docket: Pen-19-185
MAINE SUPREME JUDICIAL COURT
April 16, 2020
2020 ME 49
JABAR, J.
Argued: March 5, 2020. Panel: GORMAN, JABAR, HUMPHREY, HORTON, and CONNORS, JJ.* Reporter of Decisions.
[¶1] Robert K. Lindell Jr. appeals from a judgment of conviction of theft by unauthorized taking, theft by deception, securities violations, tax evasion, and failure to pay state income tax entered by the trial court (Penobscot County, Anderson, J.) following a jury trial. Lindell contends that the court abused its discretion by admitting in evidence certain checks with their memo lines unredacted and a manual of employment procedures. He also contends that the court erred by declining to instruct the jury on the definition of the word “conduct,” by declining to instruct the jury on methods for calculating income taxes, and by failing to provide the jury with relevant statutes. Finally, Lindell*
I. BACKGROUND
[¶2] Viewing the evidence in the light most favorable to the State, the jury could have found the following facts beyond a reasonable doubt. See State v. Nobles, 2018 ME 26, ¶ 2, 179 A.3d 910. Lindell was licensed in Maine as a securities broker-dealer agent from approximately 1997 to 2017. As part of his business, he arranged for his clients to purchase investments through affiliated broker-dealers. Between 2010 and 2017, he conducted his business under the auspices of a Maine limited liability company (LLC), RK Lindell & Co., LLC, affiliating himself with Revere Securities, LLC.
[¶3] Lindell met his first victim (Victim 1) in 1997, while soliciting clients in the Belfast area. Victim 1 was a seventy-seven-year-old widow. The two developed a business relationship, and by the early 2000s Lindell was meeting weekly with Victim 1 at her home to discuss her finances. In 2004, Victim 1 executed a power of attorney (POA), appointing Lindell and a close family friend of the victim as agents. At the same time, Victim 1 established a trust (2004 Trust) to provide for her adult son.1 The family friend was never made
A. Thefts During Victim 1‘s Lifetime
[¶4] Beginning in 2010, Victim 1 wrote thirty-one checks, all payable to Lindell‘s company, for the purpose of purchasing various securities. These checks listed the name of the security in the memo line and the checks totaled approximately $595,000. Lindell deposited the checks into his business bank account, but did not use them to purchase the securities. In eleven instances, he used other funds from Victim 1‘s brokerage account, totaling $298,000, to buy the securities. In twenty of the thirty-one instances, Lindell did not buy the securities at all. In early 2012, Victim 1‘s health began to decline, such that she could no longer physically write checks. Lindell used the POA given to him by Victim 1 to write checks totaling $67,850 to himself or his business from Victim 1‘s personal checking account.
B. Thefts from the Estate of Victim 1
[¶5] Victim 1 died in June 2012. Her estate was valued at nearly $6.7 million, and the estate account was set up at a Maine bank. Her will set forth a testamentary plan by which one-third of her estate was to be placed in
[¶6] In his capacity as personal representative of the estate, Lindell wrote checks totaling more than $500,000 to himself and to his business. He also transferred approximately $268,000 from the estate to the 2004 Trust.
C. Thefts from the 2004 Trust
[¶7] Shortly after Victim 1 died, Lindell opened three bank accounts in the name of the 2004 Trust, including two at branches located in Maine. Lindell transferred into these accounts approximately $275,000 from the Hartford Policy, approximately $823,000 from the Midland Annuity,2 and approximately $167,000 from liquidated securities once held in the son‘s name. In total, Lindell directed more than $1.7 million to accounts held by the 2004 Trust, accounts over which he had sole control. Between 2012 and 2017, Lindell spent almost all of these funds. The bulk of the money, more than $900,000 total, was
D. Thefts from Victim 2
[¶8] Lindell also managed the finances for a second woman (Victim 2), who was a longtime family friend of Lindell. Lindell managed several Maine bank accounts held in the name of a trust (GLQD Trust). Victim 2, who lived in France, was the beneficiary of the trust, and had very limited control and oversight of the accounts. Between 2010 and 2017, without Victim 2‘s knowledge or permission, Lindell used more than $300,000 from GLQD Trust bank accounts to pay personal expenses, to pay his company, and to fund Victim 1‘s 2004 Trust.4 In total, Lindell misappropriated more than $3.5 million from his two victims.
[¶9] Lindell was indicted by a grand jury on March 1, 2017, and charged with one count of theft by unauthorized taking (Class B),
[¶10] On October 23, 2018, Lindell moved in limine for the court to exclude from evidence the memo lines on the checks that Victim 1 wrote to him, arguing that they were inadmissible hearsay. He also argued that all evidence of his use and control of money located in Maine that occurred after he moved to California was outside the jurisdiction of the court, and thus inadmissible, either to prove a theft or for any other reason. The court denied Lindell‘s motion as to the hearsay issue and held that Lindell‘s conduct while in California was admissible to show “intent, state of mind, scheme, and plan.” The
[¶11] Following a seven-day trial in October and November 2018, the jury found Lindell guilty on all counts. The court entered a judgment of conviction and sentenced Lindell to seventeen years’ imprisonment with all but ten years suspended, and three years’ probation.5 Lindell timely appealed the judgment of conviction. See
II. DISCUSSION
[¶12] Lindell argues on appeal that the trial court erred or abused its discretion in several ways. First, he contends that the court abused its discretion by admitting in evidence a manual of employee procedures published by Revere and certain checks with their memo lines unredacted. Second, he argues that the trial court erred by declining to instruct the jury on the definition of the word “conduct,” by declining to instruct the jury on methods for calculating income taxes, and by failing to provide the jury with
A. Admission of Check Memos in Evidence
[¶13] Lindell contends that the trial court abused its discretion by admitting in evidence checks issued by Victim 1 to Lindell without redacting information contained on the memo lines of the checks. Lindell argues that the memo lines contained inadmissible hearsay. See
[¶14] Contrary to Lindell‘s arguments, the words in the check memos had independent significance as terms of an agreement or contract between Victim 1 and Lindell to purchase securities and as evidence of Lindell‘s knowledge of those terms, and thus were offered for a purpose other than the truth of the matter asserted. See
[¶15] When the court denied the motion, holding that the check memos were subject to different interpretations and thus proper considerations for the jury, Lindell did not request that the court deliver a limiting instruction to the jury, which might have restricted their consideration to purposes other than the truth of the matter asserted. See, e.g., State v. Nason, 383 A.2d 35, 37 (Me. 1978) (noting that trial courts may issue contemporaneous instructions to the jury limiting the purposes for which specific evidence may be considered). Given the paucity of case law on the subject, the varied purposes for which the evidence might have been considered, and the broad discretion of the trial court in evidentiary matters, Fox, 2017 ME 52, ¶ 29, 157 A.3d 778, the court did
B. Employee Procedure Manuals
[¶16] Lindell also argues that the trial court abused its discretion by admitting in evidence copies of procedural manuals produced by Revere for its contractors and signed by Lindell, which contained procedures that arguably prohibited the conduct that gave rise to Count 3 of the indictment, a knowing or intentional securities violation. Lindell objected to their admission at trial, arguing that they were inadmissible propensity evidence and likely to mislead the jury, but the trial court overruled the objection and admitted the manuals, accompanied by a limiting instruction.7 Lindell did not object to the language of the instruction, and therefore we review the instruction for obvious error. State v. Pratt, 2015 ME 167, ¶ 18, 130 A.3d 381. The court‘s instruction correctly stated the law and relevant procedural posture in a thorough and
C. Jury Instructions
[¶17] Lindell contends that the trial court erred by not instructing the jury on the definition of the word “conduct” and by declining to provide the jury with certain statutes related to the calculation of income tax. “We review jury instructions as a whole for prejudicial error, and to ensure that they informed the jury correctly and fairly in all necessary respects of the governing law.” State v. Hofland, 2012 ME 129, ¶ 18, 58 A.3d 1023 (quotation marks omitted). “When the claimed error is the omission of a particular instruction, we will vacate the judgment only if the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.” Id. (alteration omitted) (quotation marks omitted). We have previously applied a five-part test to review denied requests for jury instructions:
We will vacate a judgment based on a denied request for a jury instruction if the appellant demonstrates that the requested instruction (1) stated the law correctly; (2) was generated by the evidence; (3) was not misleading or confusing; and (4) was not
sufficiently covered in the instructions the court gave. In addition, the court‘s refusal to give the requested instruction must have been prejudicial to the requesting party.
State v. Hanaman, 2012 ME 40, ¶ 16, 38 A.3d 1278 (citation omitted).
1. Lindell‘s Definition of “Conduct”
[¶18] First, Lindell argues that the court erred by declining to instruct the jury on his proffered definition of the word “conduct,” which, in turn, he argues was relevant for determining whether the court had proper jurisdiction.8 With regard to the preamble to the court‘s count-by-count instructions, Lindell asked that the court instruct the jury that “conduct” means “voluntary bodily movement,” analogous to “act,” as defined in
[¶19] Lindell has failed to demonstrate that his requested instruction was an accurate statement of the law, was not misleading, and was not covered
2. Section 5111 and Tax Calculation
[¶20] Next, Lindell argues that the court erred by declining to (1) instruct the jury on how to calculate income tax or (2) provide statutes relevant to such calculations. Counts six through ten of the indictment allege that Lindell “did intentionally attempt to defeat or evade the Maine Income Tax law imposed by
[¶21] Contrary to Lindell‘s contention, the trial court did not err by declining to provide the jury with the text of
[¶22] The court instructed the jury on the general framework of the Maine income tax and its method of calculation. The State presented evidence from a securities investigator and expert in state and federal taxation on the particulars of Lindell‘s finances, and the court admitted in evidence Lindell‘s tax returns and documentation of the money that allegedly went unreported. The State offered testimony that demonstrated that the calculation of income tax liability involves more than merely applying a tax rate to a gross income figure.
D. Territorial Applicability
[¶23] Lindell argues that the trial court did not have jurisdiction to consider conduct in which he allegedly engaged while in California and therefore erred by admitting evidence of that conduct related to the theft and tax evasion charges. He contends that, because conviction of a crime in a Maine state court requires that the conduct that is an element of the crime occur in Maine, and he did not engage in any “conduct” in Maine with regard to certain counts, he cannot be convicted on those particular counts as a matter of law. He raised this defense with regard to Counts 1 and 2 (theft by unauthorized taking), and Counts 8, 9, and 10 (intentional evasion of tax).
[¶25] Lindell is legally accountable for his conduct if “[e]ither the conduct that is an element of the crime or the result that is such an element occurs within this State or has a territorial relationship to this State.”
III. CONCLUSION
[¶26] Because Lindell‘s arguments regarding the jurisdictional provisions of the Maine Criminal Code are unpersuasive, because the trial court did not commit prejudicial error with regard to any of the challenged jury instructions, and because it did not abuse its discretion in admitting the manuals or unredacted checks in evidence, we affirm the judgment.
The entry is:
Judgment affirmed.
Aaron M. Frey, Attorney General, and Gregg D. Bernstein, Asst. Atty. Gen. (orally), Office of the Maine Attorney General, Augusta, for appellee State of Maine
Penobscot County Unified Criminal Docket docket number CR-2017-707
FOR CLERK REFERENCE ONLY
Notes
Now, I want to make sure that you understand as jurors that it is not a criminal violation or against the law per se to violate some employment procedure. . . . And there‘s no charge in the indictment that says he violated this procedure; therefore, that‘s a crime. That‘s not at play here. However, I am admitting the exhibit for whatever consideration you want to give it in deciding the issues that you do have to decide, which are the charges in the indictment itself. So I just want to make sure you understand . . . a violation of an employment procedure is not a crime. It‘s not charged. That‘s not why this is being admitted. But it is generally for your consideration.