United States v. Bowles , 751 F.3d 35 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1575
UNITED STATES,
Appellee,
v.
SHARON KAY BOWLES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.
Edward J. McCormick, III for appellant.
Paul G. Levenson, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, and Lori J. Holik,
Assistant United States Attorney, were on brief, for appellee.
May 7, 2014
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Sharon Bowles appeals her
conviction after jury trial on five counts of theft of government
funds, in violation of 18 U.S.C. § 641. We affirm.
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
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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 (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?
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[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 (2009); see also Johnson v. California,
545 U.S. 162, 168 (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
1
In recognition of the fact that “the trial judge is in the
best position to evaluate context, nuance, and the demeanor of the
prospective jurors and the attorneys,” “a trial judge’s Batson
findings are given substantial weight.” Caldwell v. Maloney, 159
F.3d 639, 649 (1st Cir. 1998). Here, however, appellate review is
hampered by the lack of express factual findings in the record with
regard to why the district court initiated the Batson enquiry and
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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 (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.
why it decided to disallow the strike. See United States v. Perez,
35 F.3d 632, 636 (1st Cir. 1994) (“[D]istrict courts should
articulate the bases of their factual findings related to Batson
challenges more clearly than occurred here. . . . Indicating
[factual] findings on the record . . . eases appellate review of a
trial court’s Batson ruling” and “ensures that the trial court has
indeed made the crucial credibility determination that is afforded
such great respect on appeal.”). Though there is no need to go
further into the trial judge’s reasons in order to decide this
appeal, we are skeptical that counsel’s mere exercise of a
peremptory challenge against a member of a protected class, without
more, will ever suffice to establish a prima facie case of
discrimination. We think that a trial judge should rarely engage
sua sponte in a Batson enquiry absent surrounding circumstances,
identified by the court on the record, that are strongly suggestive
of discrimination.
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We can, however, bypass the question whether the district
court acted within its discretion, because any error was harmless.
See Rivera, 556 U.S. at 160 (affirming application of harmlessness
standard of review to trial court’s error in denying a defendant
his right to a peremptory strike under state law). Although our
own pre-Rivera precedent held that the mistaken refusal to accept
a defendant’s exercise of peremptory challenges was structural
error requiring automatic reversal of a conviction, see United
States v. Vargas, 606 F.2d 341, 346 (1st Cir. 1979), we have since
recognized that “the Supreme Court [in Rivera] . . . disavowed the
sort of reasoning used in Vargas and . . . indicated that mistaken
denials of peremptory challenges do not ordinarily warrant
automatic reversal.”2 United States v. Gonzales-Melendez, 594 F.3d
28, 33 (1st Cir. 2010) (applying harmlessness review to district
court’s erroneous failure to designate which jurors are alternates
before allowing the parties an additional peremptory challenge
pursuant to Fed. R. Crim. P. 24(c)(4)). Every one of our sister
circuits to have considered the question has similarly held that,
under Rivera, error in sustaining a Batson challenge is subject to
harmless error analysis. See Jimenez v. City of Chicago, 732 F.3d
710, 715 (7th Cir. 2013)(civil); United States v. Williams, 731
2
We say “ordinarily” because the Supreme Court in Rivera held
open the possibility that it might violate due process for a “trial
judge . . . repeatedly or deliberately [to] misappl[y] the law or
ac[t] in an arbitrary or irrational manner” in denying a
defendant’s right to exercise peremptory challenges. 556 U.S. at
160. Bowles makes no such claim here.
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F.3d 1222 (11th Cir. 2013)(criminal); Alaska Rent–A–Car, Inc. v.
Avis Budget Group, Inc., 709 F.3d 872, 880 (9th Cir. 2013)(civil);
Avichail v. St. John’s Mercy Health System, 686 F.3d 548, 552–53
(8th Cir. 2012)(civil).
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. 558-59
(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
3
We note that the checks appear to fall within the public
records exception to the rule against the admission of hearsay,
given that the checks were drawn directly on the United States
Treasury and the copies were stored or recorded as part of a
government recordkeeping system. See Fed. R. Evid. 803(8),
advisory committee’s note (citing “[t]reasury records of
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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 they implicitly state. See Fed. R. Evid. 801 (defining
“hearsay” as a “statement . . . offer[ed] in evidence to prove the
truth of the matter asserted”); United States v. Vigneau, 187 F.3d
70, 74 (1st Cir. 1999) (“Whoever wrote the name ‘Patrick Vigneau’
on the [money order forms] was stating in substance: ‘I am Patrick
Vigneau . . . .’”).
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 Fed. R. Evid.
801(c), advisory committee’s note (the hearsay definition excludes
"the entire category of ̀verbal acts’ . . . in which the statement
itself affects the legal rights of the parties . . . .”), an
integral step in what the law has traditionally called the actus
reus of the repeated theft offense charged. See United States v.
miscellaneous receipts and disbursements” as examples of public
records not subject to the hearsay bar).
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Pang, 362 F.3d 1187, 1192 (9th Cir. 2004). In this respect, the
endorsements are comparable to words offering a bribe or making a
threat, which we have recognized as verbal acts that are not
hearsay. United States v. Diaz, 597 F.3d 56, 65 n. 9 (1st Cir.
2010).
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.” Fed. R. Evid. 901(a);
see United States v. Savarese, 686 F.3d 1, 11 (1st Cir. 2012).
Here, it is undisputed that the checks had been mailed to Bowles’s
home address after her mother’s death and then deposited in
Bowles’s personal bank account. This circumstantial evidence is
more than sufficient to establish a reasonable likelihood that the
endorsements on the checks were written by Bowles. See United
States v. Gonzalez-Maldonado, 115 F.3d 9, 20 (1st Cir. 1997)
(“[C]ircumstantial evidence is permitted to authenticate [an]
item.”).
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
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examples of Bowles’s signature already in the record. See Fed. R.
Evid. 901(b)(4) (Evidence may be authenticated by its “appearance,
contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.”).
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 28 U.S.C. § 1731 (“The admitted or proved handwriting of any
person shall be admissible, for purposes of comparison, to
determine genuineness of other handwriting attributed to such
person.”). Bowles conceded the Registry record’s authenticity at
trial, see App. 215, but says it should not have been admitted into
evidence without “some element of proof that the signature [on the
Registry record] was [hers].” Appellant’s Br. 29.4
4
The nature of Bowles’s objection to the Registry record is a
bit unclear. Her counsel conceded below that the Registry record
was authentic, but argued that it was not relevant to any disputed
issue at trial. See App. 215 (Bowles’s counsel stating “obviously
there’s . . . no objection as to authenticity . . . . But what I’m
objecting to is relevance.”). Although she thus styled her
objection as going to the Registry record’s relevance, at no point
has Bowles disputed that evidence of her handwriting is relevant to
determining whether she signed the fraudulent endorsements on the
annuity checks. Instead, the substance of Bowles’s objection is
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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 . . . .” Mass.
Gen. Laws Ann. ch. 90 § 8. This suffices to establish a reasonable
likelihood that the signature on Bowles’s license is what it
purports to be. Second, and more broadly, the Registry record is
a prototypical public record that is self-authenticating under the
Federal Rules. The mandate for a licensee’s immediate signature on
receipt makes it reasonable to infer that the photo of the
signature is as much a part of the “record” as any notation of fact
contained within it. See Fed. R. Evid. 902(4) (“A copy of an
official record” is self-authenticating “if the copy is certified
as correct by . . . the custodian or another person authorized to
make the certification.”). Here, the Registry record is on its
face “a true copy of the records” held by the Registry, and was
that the government did not prove that the signature on the record
was hers. See id. at 216 (Bowles’s counsel stating “there’s no
evidence to show that . . . this is [Bowles’s] signature”);
Appellant’s Br. 29 (same). This is best understood as an objection
to the signature’s authenticity, but not to that of the underlying
record.
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certified as such by the then-Registrar of Motor Vehicles. App.
35-36. Third, for the same reason discussed above with respect to
the signature endorsements on the checks, the district court would
have been within its discretion to find the signature on the
Registry record authentic based on a comparison with the examples
of Bowles’s signature that were already in the record. See Fed. R.
Evid. 901(b)(4).
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
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concluding that a reasonable jury could find Bowles guilty of
stealing government funds.
VI
The judgment of the district court is affirmed.
It is so ordered.
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