NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.
UNITED STATES, Appellee,
v.
John MEDINA-LUGO, Defendant, Appellant.
No. 92-2425.
United States Court of Appeals,
First Circuit.
November 18, 1993
Appeal from the United States District Court for the District of Puerto Rico
John Medina Lugo on brief pro se.
Charles E. Fitzwilliam, United States Attorney, and Miguel A. Pereira, Assistant U.S. Attorney, on brief for appellee.
D. Puerto Rico
AFFIRMED
Before Cyr, Boudin and Stahl, Circuit Judges.
Per Curiam.
Defendant, an attorney, was tried by a 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. Sec. 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. Sec. 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,
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). 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. Hopkins,
In any event, "[i]t is well settled that inconsistency in a criminal verdict does not require setting the verdict aside." Gonzalez-Torres,
[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 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,
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
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,
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-Torres,
For the reasons stated, the judgment below is affirmed.
Notes
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,
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,