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USCA1 Opinion
September 11, 1992 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2214
UNITED STATES,
Plaintiff, Appellee,
v.
ROGER ALLEN DOANE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
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Before
Cyr, Circuit Judge,
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Roney,* Senior Circuit Judge,
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and Pieras,** District Judge.
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Jonathan R. Saxe, by Appointment of the Court, with whom Twomey &
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Sisti Law Offices was on brief for appellant.
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Barbara N. Bandfield, Trial Attorney, United States Department of
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Justice, with whom Jeffrey R. Howard, United States Attorney, was on
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brief for appellee.
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* Of the Eleventh Circuit, sitting by designation.
** Of the District of Puerto Rico, sitting by designation.
PIERAS, District Judge. Appellant Roger Allen Doane, a
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licensed attorney practicing in Salisbury, Massachusetts, was
convicted after a jury trial in the District of New Hampshire of
bank fraud (18 U.S.C. 1344), interstate transportation of
securities taken by fraud (18 U.S.C. 2314), and four counts of
embezzlement (18 U.S.C. 656). On this appeal, he attacks his
conviction alleging an incorrect jury instruction relating to
Section 2314, insufficient evidence to sustain his conviction
under Section 656, and an incorrect and prejudicial denial of two
motions to suppress. Finding no merit in appellant's arguments,
we affirm.
Background
Background
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The various charges against appellant were based on a series
of different transactions. The fraud-related counts involved a
scheme devised and carried out by Doane in early 1987, the
purpose of which was to obtain funds from the United States
Savings Bank of America (hereinafter "USSBA") located in
Seabrook, New Hampshire, and to deposit these funds in an
overdrawn account maintained at USSBA for the benefit of a health
care clinic called Primacare, which Doane owned. Doane created a
sham trust and held himself out as its attorney while naming the
girlfriend of a former employee as its trustee. The collateral
given for the loan was a mortgage on a beach house already
subject to four other mortgages which was owned by Marion
Heffron, a USSBA employee who had been Doane's bookkeeper for
several years and continued to receive money from him after being
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employed by USSBA. Doane directed the submission to USSBA of an
application for a mortgage loan to the trust and, using his
influence over Heffron, directed her to draw a check in the
amount of $131,500.00 for the benefit of Doane as attorney for
the trust. He then directed his new bookkeeper to pick up the
check and deposit it into a law firm trust fund account at the
First National Bank of Boston ("FNBB"), located in Massachusetts.
Soon thereafter, appellant drew a check on the FNBB account in
the amount of $110,000.00, payable to Primacare, and four
additional checks totalling $23,533.00 payable to himself for
"fees and costs."
The embezzlement-related counts involved two other USSBA
loans, the proceeds of which Doane embezzled after the funds had
been deposited in law office client trust accounts maintained at
USSBA. The first loan, in the amount of $140,000.00, was
obtained for Arthur and Valerie McCaskill, who were represented
by Diane Loman, an attorney in Doane's office. The proceeds were
to be used to pay off a pre-existing first mortgage on the
McCaskills' home and to make disbursements identified by Loman on
a settlement sheet; however, after the proceeds were deposited in
a client trust fund account, Doane directed his bookkeeper not to
pay off the pre-existing mortgage or make any of the identified
disbursements. Instead, seven checks totalling $141,855.14 were
issued for various other purposes, including three checks
totalling $82,426.81 which were made payable to Doane for "fees
and costs." Doane for a short period of time arranged that the
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monthly payments on the pre-existing loan be paid out of law
office funds, but then discontinued the payments. Doane
eventually gave the McCaskills a check for $99,536.00, but later
instructed his bookkeeper to place a stop payment on the check.
The second loan was handled by Doane's law firm after the
USSBA directed the borrowers, Gary and Darlene Richie, to use the
services of Doane's firm. The loan proceeds, totalling
$85,000.00, were deposited into a client trust fund account at
USSBA. After closing, Doane directed that a check in the amount
of $41,887.00 be sent to pay off the seller's existing mortgage.
When Doane learned approximately two months later that the check
had not been negotiated, he directed his bookkeeper to place a
stop payment on the check. Thereafter, three checks totalling
$41,762.94 were drawn on the account, all signed by and made
payable to Doane for "fees and costs." USSBA eventually issued a
treasurer's check to pay off the existing mortgage.
Jury Instruction
Jury Instruction
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Appellant asserts that the district court committed
reversible error by submitting to the jury an aiding and abetting
instruction without a correlative instruction that the mental
state of an aider and abettor must be the same as the principal.
The precepts controlling our review of a trial court's jury
instructions are well established. Primary among them is the
axiom that "a single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the
overall charge." Cupp v. Naughten, 414 U.S. 141, 146-47 (1973).
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With this directive in mind, we conclude that the district
court's charge was not prejudicial, primarily because it was not
in fact an instruction on aiding and abetting. In setting forth
the elements required under 18 U.S.C. 2314 to prove interstate
transportation of securities taken by fraud,1 the district court
instructed the jury:
It is not necessary for the Government to prove that
the defendant actually transmitted or transported the
money himself, as it is sufficient to prove that he
caused such transportation to be done. Otherwise put,
the defendant may be found guilty of a violation of
Title 18, United States Code, Section 2314, if the jury
finds beyond a reasonable doubt that the defendant
committed the offense himself, or if it finds beyond a
reasonable doubt that the defendant aided or caused the
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commission of the offense by others.
Transcript at 94 (June 20, 1991) (emphasis added). We cannot
agree with appellant's contention that this language constituted
an instruction on aiding and abetting. The district court was
merely explaining to the jury that in order to find
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1 18 U.S.C. 2314 provides, in pertinent part (emphasis added):
Whoever transports, transmits, or transfers in
inter-state or foreign commerce any goods, wares,
merchandise, securities or money, of the value of
$5,000 or more, knowing the same to have been stolen,
converted or taken by fraud; or
Whoever, having devised or intending to devise any
scheme or artifice to defraud . . . transports or
causes to be transported, or induces any person or
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persons to travel in, or to be transported in
interstate or foreign commerce in the execution or
concealment of a scheme or artifice to defraud that
person or persons of money or property having a value
of $5,000 or more . . .
. . . [s]hall be fined not more than $10,000 or
imprisoned not more than 10 years, or both.
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transportation in interstate commerce it must find that money was
moved or caused to be moved by the defendant in interstate
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commerce. The court used the word "aided" only to flesh out for
the jury the meaning of the phrase "causes to be transported" as
used in the statute. While the court's use of the word "aided"
was perhaps ill-advised, it could not alone yield an instruction
on aiding and abetting.
The jury could not have concluded otherwise. The
indictment, which was read to the jury on several occasions, did
not charge the defendant with aiding and abetting. In addition,
the court's charge included an instruction on specific intent, as
well as instructions on voluntary and intentional conduct, which
taken together required the jury to find that the defendant acted
knowingly and intentionally. Under these circumstances, we
determine that the trial court's instruction did not create a
substantial risk of a miscarriage of justice. Accord Cupp, 414
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U.S. at 147-48; Allen v. Commonwealth of Massachusetts, 926 F.2d
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74, 79-80 (1st Cir. 1991).
Sufficiency of Evidence
Sufficiency of Evidence
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Appellant also asserts that the evidence adduced at trial
was insufficient to sustain his conviction for embezzlement under
18 U.S.C. 656. Section 656 provides, in pertinent part:
Whoever, being an officer, director, agent or
employee of, or connected in any capacity with any
Federal Reserve Bank . . . embezzles, abstracts,
purloins or willfully misapplies any of the moneys,
funds or credits of such bank . . . or any moneys,
funds, assets or securities intrusted to the custody or
care of such bank . . . or to the custody or care any
such agent, officer, director, employee or receiver
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shall be fined not more than $1,000,000 or imprisoned
not more than 30 years, or both.
Appellant contends that the evidence against him was insufficient
to show (i) that he was an officer, director, agent or employee,
or otherwise connected in any capacity with USSBA and (ii) that
the money involved in the offenses was not money of USSBA or
entrusted to its care or to the care of its agent. We disagree.
First, the evidence was sufficient to show that appellant
enjoyed an agency relationship with the bank. See United States
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v. Davis, 953 F.2d 1482, 1488 (10th Cir. 1992). The evidence
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showed that (i) bank employees sought professional advice from
appellant on matters related to the bank; (ii) the bank's
accountant testified that Doane was "the bank's attorney"; (iii)
appellant's employee acted as the sole closing agent on the
loans, creating a fiduciary duty between the appellant's law
office and the bank; and (iv) most strikingly, the bank required
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one of the victims to use the services of appellant to obtain a
loan. This final aspect of the evidence reflects the inescapable
fact that an attorney who drafts and executes loan documents at
the instigation of a bank acts as the bank's lawyer and seeks to
protect the interests of the bank as a creditor.2 From these
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2 As a practical matter, when a bank "suggests" that a borrower use
the services of a particular attorney, the bank is in effect requiring
that the borrower use that attorney's services in order to obtain the
requested loan. In addition, since the primary interest to be
protected in a loan context is the interest of the bank as lender, the
"suggestion" that a certain attorney be used is tantamount to an
appointment of that attorney as a fiduciary of the bank. As a result,
although the attorney might be paid by the borrower to act as its
attorney for purposes of closing the loan, the attorney's primary
mandate is to protect the interest of the bank. In other types of
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facts, viewed in a light most favorable to the prosecution, the
jury could have reasonably concluded that appellant was an agent
of USSBA.
Second, the funds which were embezzled were clearly
"intrusted to the care of [a USSBA] agent," as required by the
statute -- that agent being Doane himself. Appellant argues that
he did not embezzle "funds . . . of [the] bank" within the
meaning of Section 656 because title to the loan proceeds had
already passed from USSBA to his clients at the time they were
deposited into the client trust fund accounts. Assuming this
fact to be true, Doane is not delivered from conviction under
Section 656. The statute applies with equal force when the funds
embezzled are under the custody of an agent of a federally-
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insured bank.3 Once the funds passed into escrow and were
deposited in client trust funds accounts maintained by
appellant's law office, they were clearly "intrusted to [his]
custody or care." His embezzlement of the funds while they were
in his custody is conduct that falls squarely within the statute.
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transactions where the bank is involved only peripherally and its
interest is not directly at risk, a suggestion by an officer of a bank
that a particular attorney be used does not similarly reflect a
fiduciary relationship between the bank and the attorney.
3 The Court notes that all cases concerning embezzlement of bank funds
or funds intrusted to the care of a bank are inapposite to this case.
Cf., Golden v. United States, 318 F.2d 357 (1st Cir. 1963) (whether
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funds directed to bank official in his private capacity ever became
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"funds" of bank is question of fact for jury, not a question of law);
United States v. Mott, 603 F. Supp. 1322, 1323-24 (S.D.N.Y. 1985)
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(bank initially used "funds of the bank" to reimburse bank employee
who submitted fraudulent expense billings, despite fact that bank
intended to obtain substantial reimbursement from clients at later
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date).
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Suppression of Evidence
Suppression of Evidence
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Appellant's final issue on appeal involves the district
court's denial of two motions he filed to suppress certain
documents delivered to the Federal Bureau of Investigation by
their custodian, a bankruptcy trustee, and by the president of
the corporate entity whose records were delivered, which
documents he contends were obtained by the government in
violation of the Fourth Amendment. The government has offered
several procedural and substantive reasons why the district
court's orders should be upheld. We do not address each of these
issues.
The exclusionary rule provides that illegally obtained
evidence, to which a timely objection was made, cannot be
admitted into evidence. The rule reflects not a personal
constitutional right of the person aggrieved but instead a
judicially created remedy designed primarily to deter improper
conduct by law enforcement officials. United States v. Leon, 468
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U.S. 897 (1984); Michigan v. De Fillippo, 443 U.S. 31 (1979).
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None of the documents appellant moved to have suppressed were
introduced into evidence at trial. As a result, even assuming
arguendo that the motions to suppress were improperly denied, the
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exclusionary rule provides no remedy in this case.
Affirmed.
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Document Info
Docket Number： 91-2214
Filed Date： 9/11/1992
Precedential Status： Precedential
Modified Date： 9/21/2015