UNITED STATES, Appellee, v. Sharon Kay BOWLES, Defendant, Appellant.
No. 13-1575.
United States Court of Appeals, First Circuit.
May 7, 2014.
751 F.3d 35
shared doom, after careful consideration we conclude there is no merit to any of the grounds raised on appeal. Accordingly, we affirm the convictions of Ayala and Cruz in all respects. We affirm Cruz‘s life sentence as well.
CONCLUSION
The sheer size, scope, sophistication, and profitability of the DTO‘s Barbosa operations are enough to take one‘s breath away. The human toll exacted by its illicit activity is unknowable. Only through a painstaking investigation was law enforcement able to curtail its operations and begin to bring its members and leaders to justice. Rather than face trial and the prospect of paying the full, heavy price for their crimes, many of these individuals elected to plead guilty in the hope of receiving leniency.
Not so Ayala and his brother Cruz. Much as Tennyson‘s Balin and Balan36 together sat upon their horses and tested their might against all-comers, these two brothers stood their ground against the full force of the evidence marshaled by the federal government and the testimony of their own partners in crime. In the end, however, Cruz and Ayala fared little better than did Balin and Balan, who perished in each other‘s arms. The mountains of evidence at trial proved beyond a reasonable doubt that Ayala was the DTO‘s kingpin, and that his brother Cruz was a trusted lieutenant who helped him oversee and control the scores of individuals involved in the drug sales at Barbosa. Ayala and Cruz, bound together initially by their blood, will now share the same fate: life in prison.
While the brothers struggle mightily in this appeal to get out from under their
Before LYNCH, Chief Judge, SOUTER,* Associate Justice, and SELYA, Circuit Judge.
SOUTER, Associate Justice.
Sharon Bowles appeals her conviction after jury trial on five counts of theft of government funds, in violation of
I
Bowles was found guilty of fraudulently collecting a total of $77,379 in federal civil service retirement survivor annuity payments made in 2005 through 2009 and intended for her mother, Ann Bowles. As the surviving spouse of a civil service employee, Ann Bowles had been entitled to a monthly annuity that should have stopped after she died in 2004. After getting notice of her death from the Social Security Administration in January 2005, the United States Office of Personnel Management (OPM) sent a verification form to Ann Bowles‘s old mailing address, which had been and remained Sharon Bowles‘s as well. The form was returned to OPM signed “Ann M. Bowles,” with a notation falsely indicating that Ann Bowles was still alive and eligible for the monthly payments. Twice again, in August 2005 and September 2009, the same sequence ensued: OPM sent an address verification form to Sharon Bowles‘s address, and the form was returned with the false notation that Ann Bowles was a living annuitant. Based on this misinformation, OPM continued to send monthly checks to Ann Bowles, each of which was negotiated with the purported signature endorsement of “Ann M. Bowles” on the back. Some of the checks also bore the spurious signature of Sharon Bowles‘s deceased father, some included the signature of Sharon Bowles, and some included all three. In September 2007, Sharon Bowles gave Citizens Bank a signed form (including the supposed signature of “Ann M. Bowles“) with the effect of adding her mother‘s name as that of a joint owner on her personal bank account. Thereafter, the monthly annuity payments were deposited into this account, at first by paper check and then by electronic transfer.
The jury convicted Bowles on all counts. The district court sentenced her to time served plus 30 days of incarceration and ordered her to pay $77,379 in restitution. Bowles raises four claims of error.
II
She first contends that the district court erred in disallowing her peremptory challenge to a member of the venire and in seating the challenged individual on the jury. We review the district court‘s finding that counsel‘s challenge was motivated by the prospective juror‘s race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), for “clear error.” United States v. Bergodere, 40 F.3d 512, 516 (1st Cir.1994).
At voir dire, Bowles‘s counsel raised a peremptory challenge to strike “Juror Number 5, Ms. Tran.” The following exchange ensued:
The Court: Ms. Tran is Asian-American. Why are you challenging her?
[Counsel]: I‘m excusing her because—it has nothing to do with the fact she‘s Asian American. The Court: Why are you challenging her?
[Counsel]: I don‘t like her.
The Court: Why? That‘s not good enough.
[Counsel]: Her age.
The Court: Well, are you going to challenge the forelady?
[Counsel]: No?
The Court: That‘s unacceptable. She‘s seated.
App. 240-241.
Prior to this colloquy, there was nothing in the record apart from the strike to indicate that defense counsel‘s peremptory strike was motivated by race. This suggests that the district court‘s sua sponte initiation of a Batson enquiry into counsel‘s motivations was in error, “reflect[ing] a good faith, if arguably overzealous, effort to enforce the antidiscrimination requirements of [the Supreme Court‘s] Batson-related precedents,” Rivera v. Illinois, 556 U.S. 148, 160, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009); see also Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005) (prima facie case that a party is exercising its peremptory challenges in a discriminatory manner is established “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.“).1
That said, counsel‘s responses to the court do raise the scent of possible pretext. While both of defense counsel‘s proffered reasons for seeking to exclude Ms. Tran were race-neutral, his shifting rationale for the strike could support an inference that neither reason was genuine. See Purkett v. Elem, 514 U.S. 765, 769, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995) (focus of court‘s enquiry in evaluating a proffered reason for a strike is on the “genuineness of the motive” asserted by counsel). Even aside from that, counsel‘s second reason implicates our recognition that “facially plausible” reasons for exercising a peremptory strike may “raise a serious question of pretext where [counsel‘s] explanation is equally applicable to a juror of a different race or gender who has not been stricken.” Caldwell v. Maloney, 159 F.3d 639, 651 (1st Cir.1998). Here, the district court‘s comments indicate that counsel‘s second rationale for striking Ms. Tran, her age, applied quite as well to a juror whom counsel did not challenge.
We can, however, bypass the question whether the district court acted within its discretion, because any error was
As Bowles‘s counsel conceded at oral argument, nothing in the record indicates that Ms. Tran was biased or otherwise unqualified to serve on the jury. Accordingly, any error by the district court in seating her was harmless, as it did not “affec[t] the defendant‘s substantial rights.” United States v. Maryea, 704 F.3d 55, 74 (1st Cir.2013); see also Rivera, 556 U.S. at 158-59 (right to impartial jury satisfied where no member of the jury was removable for cause).
III
Next, Bowles says the district court violated the rule against hearsay by admitting into evidence photocopies of the annuity checks that were deposited into her bank account. “We review a district court‘s decision to admit or to exclude evidence for abuse of discretion.” See United States v. Scott, 270 F.3d 30, 46 (1st Cir.2001).
Bowles does not object to the admission of the checks themselves,3 but rather contends that the signature endorsements on the backs of the checks were the inadmissible hearsay. The objection fails for two reasons. First, the large majority of the endorsements in question purport to represent the signatures of Bowles‘s deceased parents. See App. 68-179. These endorsements were all written after Bowles‘s parents had died, are indisputably false, and therefore cannot have been offered to prove the truth of what
Second, the endorsements were offered as one step in proving fraudulent action (i.e., check issued to predeceased person, endorsement by someone pretending to be that person, evidence indicating defendant wrote endorsement and received money). Each signature endorsement was thus a legally operative verbal act of imposture for a fraudulent purpose, see
Accordingly, the only remaining hurdle to admitting the endorsements into evidence is the burden on the government, as proponent, to authenticate each endorsement as the defendant‘s act, that is, to establish a reasonable likelihood that the proffered “item is what the proponent claims it is.”
On top of that, there were two documents admitted without objection that included examples of Bowles‘s handwriting and signature. See App. 56-57. It therefore would have been within the district court‘s discretion to admit the endorsements based on the evidence of authenticity apparent from those comparable examples of Bowles‘s signature already in the record. See
IV
Bowles‘s third argument is that the district court abused its discretion by admitting into evidence a copy of a Massachusetts Registry of Motor Vehicles record of information about her driver‘s license. The Registry record, which contains the apparent signature of Sharon Bowles as well as her personal information, was admitted to give the jury an additional example for comparing Bowles‘s handwriting with the signature endorsements on the checks. See
The argument lacks merit. First, Bowles herself admits that the “proof” she seeks could have consisted of “evidence ... establish[ing] that it might be the custom or requirement of the Registry” to compel persons acquiring driver‘s licenses “to sign the license.” Id. But no such evidence was needed because Massachusetts law provides that “[e]very person licensed to operate motor vehicles ... shall endorse [her] name in full in a legible manner on the margin of the license, in the space provided for the purpose, immediately upon receipt of such license....”
V
Finally, Bowles contends that it was error for the district court to deny her post-trial motion for a judgment of acquittal. But her argument is that, excluding what she terms the erroneously admitted checks and the Registry record, there was insufficient evidence from which the jury could find that she committed the charged offenses. Since that evidence was properly admitted, that is the end of the issue, though we note that the evidence of Bowles‘s guilt was overwhelming: OPM forms were three times sent to Bowles‘s address, and three times returned with fraudulent notations indicating that Ann Bowles was alive and eligible to receive annuity payments; all of these payments were deposited into Bowles‘s personal bank account; and the several examples of Bowles‘s handwriting and signature were an ample basis for the jury to find that she had written the fraudulent signature endorsements on the annuity checks. There was no error in concluding that a reasonable jury could find Bowles guilty of stealing government funds.
The judgment of the district court is affirmed.
It is so ordered.
SOUTER
ASSOCIATE JUSTICE