United States v. N. John Fontana, II

weight given by the I troubled am STATES, Appellee, pay for can will UNITED Patriarca finding that surveil- technologically exotic much announce must not We of himself. lance financially success- Defendant, country, a FONTANA, II, that, in this N. John permit him gains gotten whose ful hood Appellant. put in comfort need himself imprison No. 91-1529. ap- one system, but prison our up with the accumulation before prehended Appeals, States Court due our deference. not be great wealth will First Circuit. pay the defendant ability of 11, 1991. Sept. Heard decision nothing to do with the should conditions release pretrial as to whether Decided Oct. beyond measures the “heroic constitute have been fairly be said to which can those contemplation” to which Congress’s within Tortora, in US. referred first court should district 887. The pays, who

decide, reference without employed are to be the measures

whether 18 U.S.C.

within are, court they 3142(c)(1). If upon the cost imposing consider also they cannot

defendant, suggest I but contemplation of to be within

be found can afford defendant Act because pay for them.1 pretrial found court

Had the district little doubt I have required,

detention my have received imposition would

that its

concurrence. opportu- better heavily upon the

Leaning evaluate had to

nity judge the district the re- witnesses, agreeing ordered, I concur.

mand drug whose extra- cartel leader prospect of accommodate Perhaps alarmed I too am sought. along country was arrangements to this with criminals dition our country to in another the lines of those Sultan, Rankin &

James L. with whom brief, Sultan, Boston, Mass., was on for defendant-appellant. affirmed; convictions on vacate the Atty., Asst. U.S. First Papps, E. Peter twenty on which remaining counts Howard, Atty., U.S. Jeffrey R. whom it is convicted; hold unneces- brief, but we appellee. for N.H., was Concord, Fon- resentencing, since to remand sary TORRUELLA, Judge, Circuit Before Sentencing under the sentenced tana was Judge, and

TIMBERS,* Circuit Senior grouped and the Guidelines, counts with all CYR, Judge. Circuit the being based on sentence ultimate v. United loss. See Castle amount TIMBERS, Judge: Circuit curiam) (ap- (1961) (per States, 13 368 U.S. from appeals Fontana N. John Appellant in v. United holding Bell plying the fraud, 18 bank conviction for judgment of a penalty assess- (1953)). interstate (1988), and U.S.C. § Third, we affirm $150. ment is reduced securities, made transportation of suppress Fon- court’s refusal district the 18 U.S.C. § incriminating statements. tana’s from a results conviction Fontana’s he maintained in which scheme kiting check I. on behalf checking accounts distinct two and only those facts shall summarize We Inc., Care, Convenient Medical Dental necessary to an proceedings believed prior then Presi- he was of which corporation ap- on raised understanding of the issues drawn checks dent, he wrote and in which peal. containing insufficient on one account in checks deposited those and of Medical the President Fontana in activity resulted (Medical That Care, Den- other account. Inc. Dental Convenient in balances both checking account doing inflated in New tal), business corporation wife, Terri banks. and his Fontana Hampshire. Fontana, stockholders of were the sole appeal: on three issues raises Fontana 1, February 1989 to From corporation. under first, his conviction § whether 1989, corpora- of that May as President fail- government’s light of can stand in checking ac- tion, maintained misrepresentation; prove fraudulent ure to corporation in name of the count second, his convictions whether (Numérica), locat- Savings Bank Numérica signa- stand, his own in that 2314 can § Manchester, Hampshire. Terri in New ed ture, forgery, appeared not a signatory the sole authorized Fontana was third, the district whether question; and according signature account of that incrimi- suppress refusing court erred cards Numérica. maintained after by Fontana made nating statements checking a second account right to maintained Amendment his Fifth he asserted at the State of Medical Dental the name counsel. (State Street), Bos- located in Street Bank follow, first, we For reasons son, ton, N. Fontana’s Massachusetts. (Count fraud conviction affirm the bank III, president John Fontana former 1344, holding that the One) pursuant to § Dental, sole was the of Medical treasurer charge jury both were and the indictment according of that account signatory required the neither adequate All signature deposits card. State Street proving the burden government to bear Deposit Insur- by the were Federal insured in establish- misrepresentation Corporation. ance or artifice ing of a scheme the existence 15, 1990, grand jury federal August On Second, con- we affirm defraud. Fontana, bank fraud charging indicted since as mat- pursuant to viction One, in violation kiting in Count check the trans- activity constituted ter law his through Two securities”; Counts but U.S.C. portation of activity charged this vio- consent, Twenty Four hold, government’s prohibits the may be lated U.S.C. Thirteen only Counts Two Circuit, designation. sitting by *Of the Second no left Numérica with Dental account se- cal falsely made transportation

knowing ad- repaying recouping means commerce. in interstate curities in such a only recourse The bank’s vances. general overview that a We believe remedy against a civil pursue case was helpful process banking Dental, who had depositor, Medical operation understanding the of the ad- benefit reaped the immediate “un- is deemed A check kiting scheme. vance. through the has travelled until it cleared” cycle is instant cycle. processing entire check checks drawn charged that Fontana wrote during a nor- by example: illustrated best that ac- account when on the State Street on the Medical check drawn cycle, a mal the to cover had insufficient funds count be in Street would State account Dental deposited subsequently those the checks deposit for in by presented in maintained checks the second account in Numér- maintained corporation’s account re- of the accelerated view forwarded Numérica. then would The check ica. funds under Numerica’s internal of cen- lease processing to a check Numérica from in the Street, established Num- policy, the balance the to State ter, ultimately back reflected the immediately account the érica payment out of for origin, of bank then would write deposit. Fontana there. new checking account Dental Medical ac- the inflated Numérica check drawn on require sever- normally would process This deposit that check State count and in deposit of Numéri- from the date days al latter account would account. The Street and transfer presentation of the date ca to deposit be- immediately the new to reflect Street account the State of funds from policy premature of cause of State Street’s Numérica account. the aBy in that deposit of account. funds deposit, Numérica At the time deposits, the ac- synchronized schedule completion discretionary power await the larger than appeared count balances releasing to cycle before processing full deposit. each date of as of actual balances represented Dental the funds Medical relatively short Fontana for This enabled deposits check, exceeded where to him funds advanced periods to use bank customers, $5,000. certain valued For not his. which were as his own but policy however, maintains Numérica funds checks insufficient represent- drawn funds it to allows release approxi- in scheme totalled this prior to the involved of the by the amount ed clerk at An mately overdraft essentially million. cycle, $18.7 processing of the close this scheme uncovered Street first the State or loan in resulting in an advance Dental’s it clear Medical became Medical when check to Dental’s amount drawing from repeatedly also account early release account. Numérica designat- pool uncollected funds—a uncollected bank’s “drawing from known as had cleared ed to cover checks or loan would advance Numerica’s funds”. cycle. This resulted processing the check com- check had recouped once the then be notices overdraft repeated internal cycle and Numérica processing pleted the response, officials. State Street Den- certain Medical the funds from collected had return checks drawn began Street Street State State account. tal’s State Street Dental insuffi- Medical account early on the policy of similar maintains also the discre- terminated funds. This cient customers. of its for certain payment required that of funds and tionary advance Street on the State drawn For checks cy- processing through the pass adequate had the account when account deposited funds release cle before checks, the amounts to cover result, State As a Fontana’s account. prob- no raised by Numérica advance damages to limit its was able Street on the State For checks drawn lems. extent. some had insuf- the account account when Street however, an initial Numérica, sustained however, funds, decision Numerica’s ficient its discretion- $348,000as a result of the Medi- loss to advance funds prematurely residence, wife At Fontana’s account. funds in Fontana’s ary deposit him while he remained seated date talked to approximate On June vehicle. Jackson testified reported this Jackson’s officials Numerica’s when inability of her authorities, Fontana’s wife told Fontana negoti- conduct respond- attorney. Fontana in to locate their Numérica note with promissory ated a instructing to call a different $354,928.86. ed her This acknowl- amount of conversation, attorney. After this Jackson converted his edged his indebtedness 100 miles to Denver. by drove Fontana the a loan secured account into Numérica Rights forms were further Waiver of recov- No assets. Numérica Dental’s Medical drive during trip. During outstanding executed loss before part of the ered hours, two en- approximately two and sold of Medical Dental assets seized referred to as both gaged what Jackson of the debt. in further satisfaction them interrogation. Fon- and an a conversation 28, 1990, August morning of theOn incriminating state- made certain tana Investigation culminat- Federal Bureau ments, “swinging including an admission to investigation into the scheme its ed account”. At the checks from account to Agent Kenneth J. Jackson sending Special day suppression hearing on the before Vail at the offices of arrest Fontana to trial, suppress to these Fontana moved Colorado, Vail, where Medicine Internal The motion was denied follow- statements. testified employed. Jackson Fontana was hearing. ing the placed under arrest that he Fontana at trial by jury in the convicted was then would travel told him that two Hampshire knowingly District of New magistrate. appear before a to Denver to operation in conducting kiting a check vio- pri- Fontana to his accompanied Jackson He was 1344 and lation both § he frisked him. At that office where vate imprisonment, months sentenced to twelve tele- time, requested use of the supervised by years three to be followed lawyer. his He tele- phone speak perform release. He was ordered to con- and instructed her phoned his wife pay community service and to hours of call, this Jackson lawyer. After tact $276,128.86. He has been restitution police the Vail station. took Fontana to appeal pending on bail this released by agents other There notified Jackson followed. testified telephone of the arrest. Jackson telephone calls no other that he recalled by Fontana.

having been made II. station, at leaving police the Vail Fontana’s claim that the After We turn first to request satisfy Jackson drove Fontana its burden of government failed “drop he could off his proof to his so 1344 as that burden was residence trip charge jury. his wife. That took keys” ear with defined the court’s minutes, during ten approximately five to language that the Fontana contends questions Fontana asked about government to charge required day’s possible events. Jack- arrest and the misrepresentation before he prove some spe- Fontana asked more son testified that agree with Fonta could be convicted. We against questions the indictment cific about govern charge, to which the na that Hampshire and other facts him in New object, became the law of the ment did not testified that relating to the case. Jackson case, plain error. absent asking ques- started me those “When he Cir.1990), Anguilo, 897 F.2d tions, if dis- him that he wanted to I told denied, But we 111 S.Ct. 130 cert. him have to advise cuss the I would Fontana’s claim that the agree not with do would have to waive rights of his and he showing required an additional charge of a rights.” those After the execution misrepresentation. Fontana, Jack- Rights Waiver of form statute, 1344, pro The bank fraud son him in limited detail discussed with types of conduct: hibits two nature of the case. attempted or to ex- executes, “knowingly executed or at- knowingly “Whoever a scheme or artifice defraud ecute execute, or artifice— a scheme tempts to moneys, use of funds and obtain the institution; (1) a financial to defraud and State credits from Numérica or Banks. Street funds, moneys, any of the (2) to obtain Second, did so that the defendant securities, assets, or other credits, pretenses, false or fraudulent means of custo- under the by, or property owned promises. or representations institution, of, a financial dy or control Third, at the that the defendant knew pre- or by means of false pretenses, representations that the time promises; tenses, or representations, made. promises would be when false punished].” [shall Fourth, the defendant did [And] added). The (emphasis 18 U.S.C. § so the intent to defraud statute, but deviates tracks indictment banks....” (2) (1) charges violations in that it again summarized district court disjunctive conjunctive rather than statute, but language of the bank fraud “or”). party Neither (“and” rather than prop- highlighted disjunctive time this sufficient- indictment whether the contests necessary “It of the statute: erties charges appellant of apprised ly prove the defen- prosecution to for the See, e.g., United States him. against obtaining actually successful dant (1 Cir.1990) (indict- Waldeck, ... money property by false means review where appellate will withstand ment necessary pretenses, nor is inform the defen- clarity to sufficient it has anyone lost mon- prove him). We against accusation of the dant alleged scheme or result of the ey as a ap- adequately indictment the find plan....” inten- government’s Fontana of the prised charge cre- that this Fontana contends prong of charge him under either tion government the burden for the ates fraud statute. bank un- misrepresentations proving fraudulent charge, ap disagree jury We challenging the prongs der both § In imposed a burden of the characterization pellant appellant’s claims with in the found find the instant government, charge. We court’s upon lower misrepresenta cited statute, from those prove distinguishable case In its See, v. prongs e.g., States under both United appellant. § tions Cir.1990)(where (10 read the Cronic, first district court F.2d 1511 charge, above, charged indictment, which, exclusively to the sec- relating as charge noted jury pre- money by defraud and false obtaining a scheme to conjunctive prong, in the ond govern- pretenses. money by tenses, objection, false no obtaining of met with charge in its of addi- However, burden the court went on saddled itself with the ment in- language of an precise jury proof). case contained tional read statute, prongs set out we have of both alleging fraud as violation bank dictment statute, of a coupled offenses above, fraud which described the of the bank obtaining of dis- similarly on both charge to defraud touched scheme disjunc pretenses of the statute. money by prongs false tinct “and”). reading In (“or” rather than tive par reviewing adequacy of In made a court language, precise instruction, single instruction jury ticular to defraud” a “scheme between distinction isolation; in artificial be evaluated cannot of “false hand, the use one on the in the context rather, it must be evaluated the other. pretenses” as a whole. charge administered of the 619, Goldblatt, 813 F.2d v. United States on to elabo- judge then went district The Cir.1987); v. (3 also United States see language which statutory on the rate Cir.1972), 423, Johnson, read, requiring thereby just had (1973)(“Specific denied, 410 U.S. 937 cert. prove charge knowing the same to have been taken out of context curities ... sections made, altered, forged, argu- or counter- for used to form basis often are punished].” For the feited ... prejudicial error. We have alleging [shall ments 2314, purposes of “securities” are de- trial, in- § cloth of looked at the whole including 18 U.S.C. fined as checks. charge-”). cluding entire (1988). § charge reviewing the administered In interpretation of the appropriate The in the instant we court the district “falsely subject term made” has been the weight to the fact that the lan- give great among widespread debate the circuits. precisely the statute was read guage of Historically, inquiry focused on for- charge clearly The showed and in full. gery within the § prongs of disjunctive existence of two essentially resulted the construction plain lan- only of which its one “forged” made” as substan- showing of fraudulent guage requires the tially the same. Accordingly, we find misrepresentations. statutes, “As the words charge adequate used criminal the lower court’s homoge- ‘falsely ‘forged’ made’ and impose additional burden and did not neous, partaking They government. of each other. proof on the always synonymously been con- kiting plan Finally, Fontana’s spurious strued to or fictitious describe defraud, or artifice to constituted a scheme distinguished from a false or prong of the first of the stat violation relate fraudulent statement. words 1344(1). Bonnett, ute, United States v. genuineness of execution and not falsi- (10 Cir.1989); 877 F.2d 1450 ty of content.” (3 Cir.1986), 803 F.2d 105 cert. Rafsky, v. Sparrow, States (1987). denied, 480 U.S. 931 (10 Cir.1980), denied, 233-34 cert. short, affirm the conviction (1981). also United See States 1344(1). fraud under bank Crim, (10 Cir.1975), 527 F.2d 289 cert. de nied, 425 U.S. 905 III. part, proper this concern over or next to Fontana’s claim that as We turn genuine identity is borne out in the close improperly law he was convict- a matter of given attention to courts have cases of 2314 ed under 18 U.S.C. of interstate § forgery. They consistently have defined of made securities. transportation misrepresen those activities which involved agree with Fontana that a check While we identity scope of tation as within the of on insufficient funds is not “fraudu- drawn example, 2314. For the use of a ficti § lently meaning of made” within § tious name as drawer of a check on a affirm his conviction based nevertheless company given account has rise to a “for signature as maker of on his unauthorized gery” coupled under the statute when Dental checks drawn on Medical ac- Seay, fraudulent intent. v. United States count, negotiated in accordance which were (E.D.Ill.1974), F.Supp. 386 550 aff'd, 518 to defraud the with his scheme banks. (7 Cir.1975) curiam), (per F.2d 646 cert. denied, (1975). through Twenty-four, the 423 995 In Counts Two U.S. See also charged violating Huntley, indictment Fontana with United States v. 535 F.2d 1400 (5 Cir.1976) (en banc), denied, Only the convictions under Counts cert. 430 2314. § affirmed, (1977) (use being are those U.S. 929 of name other Two and Thirteen than through person Three Twelve and that of actual involved in transac under Counts conviction); through Twenty-four having ground been tion is for United Fourteen (4 Cir.1968) page The supra, Metcalf, vacated. stat- States v. 388 F.2d 440 See “[wjhoever, (check opened with unlaw- on individual account in ficti provides ute intent, name). transports Tyson, or in inter- tious ful Cf. (1 Cir.1982)(an foreign any falsely or commerce 690 F.2d 9 otherwise valid state made, altered, security, forged forged, or counterfeited se- but with a endorsement is particular from security”). The Sev make withdrawals a ac- “falsely made not a knowledge that a count. held enth Circuit vio “forged” been constitutes check has the nature of draft is “[Because] States v. Solo

lation of United request payment from another’s ac- § (7 Cir.1970), cert. de mon, 422 F.2d 1110 count, request such a should be based signs nied, One who 399 U.S. obligation upon a real or believed of the person another real authorized the name of obligor pay to the of the maker draft. “forgery” within sign has committed draft with knowl- 2314. Parker v. United obligation edge that there no and/or Cir.1961). States, F.2d 135 person entity by no actual whom it is falsify owed would tend nature paragraph are previous The cases sense the instrument the same the instant case distinguishable from check is falsified a check is drawn when sought involves a defendant who that each person’s in another name either real another, a real name whether sign fictitious.” person, on the face of securi- or fictitious Each ties for interstate travel. Hagerty, destined States v. United Congress (5 Cir.1977). goes to the heart of intent transportation of se- prohibit interstate interpreta In accordance with this cor- genuine. are curities that Supreme tion of Court Mos sign the out that he did not rectly points States, (1990), kal v. United S.Ct. person; another real or fictitious name of attempts rejected construe rather, maker signed his own name as incorporation as of the made” an exclusive ren- He asserts that this of each check. concepts “forged” or “counterfeited”. “genuine” in view dered each Moskal, in a participated defendant and there- forgery absence of or alteration washing” “title scheme. His confederates dis- scope 2314. We beyond fore cars, the odom purchased used rolled back agree. eters, to reflect the and altered titles mileages. The titles then result lower altered decision that actions Our Virginia. accomplice in He sent to an fraudulently ed made securities cannot were Virginia unwitting offi were them to upon the fact that checks submitted rest Virginia incorporat titles Under cials who issued on insufficient funds. drawn ing mileage figures. the false Williams construing “forged” (1981), in and of the Court held progeny, its equivalent of “counterfeited” would representations are not themselves give every ... clause and “fail to effect particular in a account sufficient 466 (quoting checks. word a statute.” Id. to the face amounts of the pay 528, Menasche, 348 v. U.S. Rather, orders to States essentially checks are United (1955)). Rather, “falsely term by the of the 538-39 pay to the bank owner issued interpreted expansion as an of made” must be account, is the maker who also “forged” or “counterfeit concept of is not a asser factual check. Since true nor ed”: tion, as neither it can be construed Id. at purposes of purpose

false for the apparent § that “We think it short, 2314 conviction under ‘falsely 284 was to § made’ broad- of the term “genuineness of execution concepts rest on beyond rigorous must en the statute Marteney falsity content.” v. prohibit not the fraudulent forgery (10 States, 760, Cir. F.2d 763 falsely 216 United into commerce introduction 1954). pre- regardless of the made documents by introducer or which the cise method is as an order If a check construed their lack of effected confederates bank, that the crux then follows authenticity.” be the identification banking system must 283, Davis, 285 888 F.2d v. are to United States persons who authorized of those (3 Cir.1989) imint.incr United States v. i.e. those authorized to payment, order Cir.1988) charge 1361, (10 (approving Cir.1976), 1364 1400, (5 1402 F.2d 535 Huntley, (1977)). a check is jury to find that denied, 929 that allowed cert. that, Moskal re is since if “the maker of the check falsely held Moskal Court titles, issued admittedly genuine from sign account not authorized ceived officials, knowing them to drawn.”). been public the check is proper which “[I]t made, his conviction un a check drawn uniformly have been held that was affirmed. existing 2314 der an bank is maker on true mean ‘forged’ within the ‘falsely made’ or presented have been courts that Other statute, though there were even ing of the affixes of a defendant who issue with the of the to the account drawer security travels to no funds which to a his own name Marteney v. United followed Mos- the drawee bank.” commerce interstate Cir.1954)(em (10 States v. F.2d reasoning. United kal 's Cir.1975), (10 mak added). court of the term “true Crim, phasis F.2d 289 Use use de- is only encompass the simultaneous someone held that er” can who alias, in formerly established con- purpose fendant’s a maker for authorized be name, his new the use of junction particular account. drawn on of checks security; this is falsely made gave rise to a subscribe Following those circuits which person cannot have two “real” so because issued, validly rule documents result, use of As a one time. names at false information containing material but security on a those names one of made”, v. e.g., United States justified a commerce moved in interstate (3 Cir.1989), Davis, Likewise, conviction signed hold that the cheeks Frick, 492 F.2d 791 v. States plateau of reach the maker did not even Cir.1974), dismissed a chal- (5 the court inquiry rein- being “validly issued”. Our a defendant who lenge to the conviction consistently view that held forces the former alias on securi- to use his continued order, draft, money mere fact that a “[t]he moved interstate commerce. ties which genuine, does title ... certificate of stated: The court itself, not, preclude a in and of urges he appellant cannot “Finally, Sparrow, States v. conviction.” United forgery of false be- guilty be at 234. also United supra, 614 See F.2d an signed the checks with alias he cause Hagerty, States authority had the he he believed Cir.1977) (“Although [the defendant] he on an account which be- use and name, falsely made he signed his own true is, answer The short to be active. lieved infor- security by filling the drawee first, have used fact These mation without authorization.... around New Orleans in and the alias meaning of obviously within the actions are (nor is there other not establish does ”); ‘falsely made’.... establishing) that it was autho- evidence (The at 1403 supra, 535 F.2d Huntley, (and signature) a name rized as person by the name of a real absence Chicago bank ac- honored on his the secu- signed by defendants on count. ...” prove the need lack rities “eliminates added). (emphasis Great at 792-93 Id. Cf. separate element of authorization as 512 house v. United Williams, offense.”); v. 498 security bearing (4 Cir.1948)(holding a that 547, (10 Cir.1974). F.2d 551 signature is not genuine a own defendant’s conviction, does not come it is reviewing therefore Fontana’s forgery a and In equate to is read must within 2314 which evidence be viewed elemental “forged”). govern- “falsely made” with light favorable most Valencia-Lucena, v. ment. United States Fon- inquiry our is whether The focus of Cir.1991). In in- checks, any tana, had maker as testi- adduced stant respect to the accounts authority signatory mony was not that Fontana question. checks yielded the kited accounts maintained either of the two Phillips, 869 F.2d E.g., United States Numérica, IV. respectively. and Street State he cannot hold Accordingly, we brings us to Fontana’s claim holding maker”, would since such “true denying his mo- district court erred liability under him from effectively shield incriminating suppress to state- tion of “fraud- removing the element Agent during ments made to Jackson Furthermore, ulently made” securities. immediately from Vail to Denver fol- drive to show adduced no evidence Fontana lowing his arrest. Fontana, Terri by either he was authorized Arizona, 384 Under Miranda v. Numéri- signatory for the and sole his wife (1966), right an accused has a U.S. III, son his or N. John ca account Fourteenth pursuant to the Fifth and Street ac- signatory for the State and sole present to counsel dur Amendments drawn on count, maker of checks to be the interrogation. An accused ing custodial recognize that account. While we valid, intelligent knowing make a the President for some time was choosing respond right by of that waiver Dental, not adduce he did of Medical interrogation. If accused exercises sig- explain the maintenance evidence however, counsel, right additional his for the two accounts nature cards protect safeguards necessary Fonta- and N. John names of Terri Fontana accused: name of III, and not in the respectively, na right his an accused has invoked “[W]hen Furthermore, recognize we the President. present during custodial to have counsel manager, testimony by the office that some right interrogation, a valid waiver of that Plante, Fontana fre- indicated that Lorraine showing only cannot established Without signed payroll checks. quently police-initi- responded to further however, more, conclude as we cannot even if he interrogation ated custodial thereby autho- law that he was matter of rights. advised of his been [A]n large exceed- checks in sums rized to draw having expressed his desire accused ... $5,000 in this were involved ing through police only coun- to deal with kiting scheme. sel, interroga- subject is not to further until counsel has by the authorities tion Moreover, actions tended him, unless the made available been in fraudulent presence to establish com- initiates accused further himself to defraud banks. tent and a scheme munication, exchanges, or conversa- “innocence” of his Despite the so-called police.” with the tions actions, intent was hold that such Arizona, 484-85 451 U.S. Edwards v. enough justify his conviction added). omitted) (1980) (footnote (emphasis transports a person A who interrogation by the accused Initiation vio security in interstate commerce broadly interpreted. Oregon has been unlawful or if he does so with lates § (1982),the ac- Bradshaw, informa if the false intent and right to have counsel cused exercised Moskal, supra, is material. tion itself interrogation. during custodial present case, Fontana instant S.Ct at later, the accused was be- while Sometime intent in that requisite fraudulent had the facility, holding to another ing transferred not an authorized he was he knew that accompanying police officer he asked he drew yet signatory on the accounts “Well, happen to me him, going to what is More if he authorized. were responded by saying, officer now?” the knowl over, checks with he drew those to me. You have to talk “You do not have kiting conducting check edge that he was you attorney I don’t want an requested acquiring result in his would scheme which desire because talking you unless so to me belong himto before which did not funds you say you anything —because—since through full check gone check had know, you attorney, requested an cycle. processing at free will.” Id. your own has to be this conversation holding 2314. 1042. conviction under affirm the We Rather, clearly he rights under Edwards. within the initiation an constituted his the ramifications of Fontana of wrote: advised Edwards, the Court secured a written waiv- questions and then desir- that it would be doubt “While we rights. It Fontana of his Miranda er from legal superstructure a to build able discussed only then that Jackson was in the word ‘initiate’ around refinements with Fontana. case context, undoubtedly situa- are there this a inquiry by either a bare tions where that, meeting upon his asserts Fontana police officer should defendant or residence, his he reasserted at his wife ‘initiate’ conversation held to not be counsel, required Jackson right to inquiries, some dialogue. There are or of the conversation again to await initiation for a drink of water request such as a regarding continuing any discussion before telephone, that are so use a request to alleged reasser- It after this the case. was they fairly cannot be said to routine that Fontana made the rights of his tion ac- part of an a desire on represent his regarding incriminating statements generalized open up a more cused to There is no evi- “swinging the checks”. directly indirectly relating discussion suggest that Fontana’s conversa- dence to investigation. inquiries or Such reassert his was meant to tion with his wife statements, by an accused or either Rather, merely right counsel. Fontana officer, relating routine inci- police his instructions discussed with his wife relationship, will the custodial dents of upon learn- lawyer another her contact in ‘initiate’ a conversation generally away on ing that his usual counsel was used in which that word was the sense not suffer from the vacation. Fontana did Edwards.” prog- and its type of coersion that Edwards Id. at 1045. eny designed to redress. hardly of a factu conceive

We can denial of Fontana’s motion We affirm the similar to that more al scenario suppress the statements. arrest, Upon his

present case. opportunity to contact his at an requested V. readily afforded Agent Jackson torney. To summarize: During the drive opportunity. him that 1344(1) First, language plain of § Fontana’s Police Station to from the Vail prove a requires that home, question about the asked a defraud; is no there scheme or artifice going to day’s coming events: “What’s government prove requirement me?” Under those circum happen to charge, misrepresentation. The stances, easily hold that Fonta could we whole, impose addi- does not an taken as ambiguous, evinced inquiry, na’s while upon government. The tional burden generalized for a willingness and a desire One is affirmed. conviction Count investigation. This about discussion Second, light recent breadth arising out of the inci inquiry was not an made”, “falsely given to the definition of relationship, such as an dents of custodial signing his own name to securi- or Fontana's location of a restroom inquiry about the ties, to do so he was unauthorized where telephone. knowledge he had full and where the instant case render our The facts of belong obtaining that did not Agent testified: Jackson task clear. him, made” securities. resulted asking [questions me he started “When convictions on Counts Two We affirm his regards to in New this was about what 2314; Thirteen under but we vacate specific facts about Hampshire through Three on Counts his convictions if he wanted to discuss I him that told case] Twenty-four through and Fourteen Twelve him his have to advise I would under § to waive those rights he would have Third, denial of Fontana’s affirm the immediately seize rights.” did not Jackson incriminating state- suppress his motion to a waiver of upon inquiry opinion discusses majority Part III of the only after his ments, they were since conviction, Counts Two under Fontana’s intelligent waiver. knowing and Thirteen, transportation for interstate Affirmed. See securities. 18 U.S.C. “falsely made” of correctly concludes that court 2314. The (concurring). CYR, Judge Circuit to the holding inapposite is the Williams jury instruction on the separately I write Fontana’s con- charge and that section 2314 One. Fontana relating to Count challenge predicat- be viction under section can proved, be- government the that concedes signing in conduct proven ed on Fontana’s doubt, that he violated yond a reasonable knowledge that series of checks with the 1344(1) engaging a scheme by subsection signatory. he was an authorized not never- contends He to defraud. or artifice very supports Fonta- The same evidence on Count jury instruction the theless One, even as- under Count na’s conviction and had law the case the of One became of the case claim” suming “law with saddling government of the the effect of knowing execution Fon- The proving is well founded. gratuitous the burden un- signatory by by means an unauthorized the banks tana defrauded representa- “false pretenses, a series of questionably fraudulent constitutes “false or required to tions, representa- be promises,” pretenses as or would or fraudulent [or] criminalized separate offense the of subsection establish the tions” within Bonnett, 1344(2). States v. subsection United 1344(2). See Cir.1989) (col- (10th 1450, 1456-57 877 F.2d v. United Williams holding in the Under conduct, of actual con- independent lateral 284-85, at 102 S.Ct. checks, give im- designed to false tents deposit of a presentation or 3091-92, mere into false sense lull banks pression and “representa- does not constitute pretenses, security may constitute false honoring there bank tion” promises).2 There was or representations checking account. sufficient engaged in a ample that Fontana evidence argues that his convic- therefore designed to defraud the pattern of conduct set aside One must be Count tion under out as a true holding himself by banks produced no evidence government since the The corporate checks. maker of or pretense, representation, a false evidence presented direct government in Part discussion light promise. signatory not an authorized however, Fontana was majority opinion, III of the presented It checks. corporate on these reached Fontana’s need not have court knew that Fontana evidence circumstantial the case” claim.1 “law of successful, plan, not Furthermore, even if it is or majority’s such scheme treatment of difficulty. illegal it were successful.” The it would be if is as as with is met considerable claim context, jury crystal in- that the clear issue is whether it is “law of the case” Viewed in by the "false were negatives the effect of the court disjunctive had used struction prom- representations or pretenses, jury merely notion to disabuse 1344(2) an ele- requirement ises” subsection under Count convicted Fontana could One. charged in Count the crime ment majority con- proved that the government One unless opinion that the district court signatory at the an authorized he was Thus, there checks. executed time establish, beyond evidence was sufficient doubt, executed

a reasonable of false by means scheme I af- would representations.

pretenses Counts convictions

firm the same Two, Thirteen

One,

ground. Executor, NYDAM,

Raymond G.

Plaintiff, Appellee, LENNERTON, Jr., etc.,

Joseph etc., Fontaine, Joseph F. Defendants, Appellants.

No. 91-1395. Appeals, Court States

First Circuit. Sept.

Heard 4, 1991. Nov.

Decided notes completed. successfully engaged in was duct verbatim, including jury 1344 to the read section jury language instructions is standard (l) separating disjunctive "or” subsections See, e.g., Unit- relating scheme. to a fraudulent to whether its Since discussion and reading (10th Kelley, States v. ed Cir.1991); disposed of Fontana's the statute Solomonson, States inconclusive, majority proceeds, claim Thus, (8th Cir.1990). the lan- 363-64 success, identify decidedly other less says majority opinion guage to in the alluded interpreted jury instruction that the indications had nothing whether about particular- disjunctive. I am in the section and a false to defraud prove a scheme both jury majority’s reliance ly concerned promise. representation or pretense, language the effect instruction required prove comple- government was pretenses" recognized that “false well It is representation of neither a false or success tion statements, or oral either written be shown passage The relevant scheme to defraud. nor a See, e.g., conduct, designed however, to deceive. continued, jury instruction 1979). (5th Ed. Dictionary 541-42 following language: Black’s Law "as with the concluded

Case Details

Case Name: United States v. N. John Fontana, II

Court Name: Court of Appeals for the First Circuit

Date Published: Oct 30, 1991

Citation: 948 F.2d 796

Docket Number: 91-1529

Court Abbreviation: 1st Cir.