United States v. Tetioukhine , 725 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1049
UNITED STATES OF AMERICA,
Appellee,
v.
EVGUENI TETIOUKHINE,
Defendant, Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Souter,* Associate Justice,
and Lipez, Circuit Judge.
J. Martin Richey for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.
July 26, 2013
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
LIPEZ, Circuit Judge. This appeal links the stories of
defendant Evgueni Tetioukhine, a native of Russia, and Fionghal
Solomon MacEoghan, the man whose name, identifying information, and
life history Tetioukhine assumed for over twenty years. Once
Tetioukhine's appropriation of MacEoghan's identity was eventually
discovered by law enforcement officials, he was charged in a nine-
count indictment with, inter alia, wire fraud, providing false
information to obtain federal financial aid, making false
statements in an application for a U.S. passport, and aggravated
identity theft.
At trial, Tetioukhine claimed that he lacked the
requisite intent to be guilty of misappropriating MacEoghan's
identity. Although the defense itself was not unique, his story
was. Tetioukhine testified to his belief that he had been lawfully
adopted by MacEoghan's biological father, Laurence Albert McCoon.
As a result, Tetioukhine said, he genuinely thought he had taken on
MacEoghan's identity through legitimate means and had the right to
use MacEoghan's identifying information as his own.
The jury rejected this defense and found Tetioukhine
guilty. On appeal, he challenges two of the district court's
evidentiary rulings: first, the exclusion of a proposed expert
witness in Soviet adoption practices and cultural differences
between the former Soviet Union and the United States, and second,
-2-
the admission of evidence pertaining to his 1996 larceny
conviction. Discerning no error, we affirm.
I.
A. Fionghal Solomon MacEoghan and Evgueni Tetioukhine
We briefly summarize the following facts, drawn from the
trial testimony and documentary evidence. In 1969, Fionghal
MacEoghan was born in Dublin, Ireland, to Laurence Albert McCoon,1
a U.S. citizen, and Rosamond Decoursey Ireland. Although MacEoghan
lived in Ireland for most of his life, he claimed U.S. citizenship
through his father.
McCoon lived with his wife and son for a time, but then
left the family when MacEoghan was about three or four years old.
McCoon later returned to Ireland and reunited with the family when
MacEoghan was about ten or eleven, and all three of them moved to
the United States together. MacEoghan and his parents lived in
Englewood, California, and also spent time in Minnesota. At some
point during MacEoghan's childhood, McCoon applied for and obtained
a U.S. Social Security card on his behalf.
McCoon and Decoursey Ireland eventually separated, and
mother and son returned to Ireland. McCoon had only limited
contact with them for the remainder of MacEoghan's childhood. The
last time MacEoghan had seen his father was circa 1983. MacEoghan
1
McCoon changed the spelling of his last name to "MacEoghan"
at some point, and also went by the name "Albert Finley MacEoghan."
We refer to him as McCoon for simplicity's sake.
-3-
had never met Tetioukhine, or visited Rhode Island until he arrived
there to testify at the trial.
One night, to amuse himself during a boring evening,
MacEoghan entered his last name into Facebook's search engine,
which returned the profile of a person named Olesya MacEoghan.
This name caught MacEoghan's attention because the spelling of his
surname was unusual, and he wondered if Olesya was a half sister or
distant relative. MacEoghan contacted her via Facebook, and
discovered that she lived in Rhode Island and was married to a man
who also called himself Fionghal Solomon MacEoghan. This
revelation initiated a chain of events that eventually uncovered
the following facts.
In 1971, Tetioukhine was born in the former Soviet Union,
in an area that is now part of Russia. Tetioukhine arrived in the
United States in June 1991 on a temporary visa, which permitted him
to stay in the country until October of that same year.
Tetioukhine, however, did not leave the country on his appointed
date. Instead, on October 31, 1991, the day after his deadline for
departing the United States, he obtained a Rhode Island
identification card in the name of Fionghal S. MacEoghan, after
presenting a birth certificate and Social Security card with
MacEoghan's identifying details. Tetioukhine then used the name to
procure a replacement Social Security card, stating on the
application that he was born in Ireland, that he was a U.S. citizen
-4-
by birth, and that McCoon was his father. On an application for a
U.S. passport filed in 1993, Tetioukhine once again used
MacEoghan's identifying information, and further stated that as a
child, he had once possessed a U.S. passport that he had since
"misplaced." Tetioukhine also used the identity to obtain a
$260,000 mortgage loan and a Rhode Island driver's license.
In January 2009, Tetioukhine applied for a federal
student loan of about $15,000, in order to attend a Rhode Island
university. The school asked Tetioukhine to explain why he had not
registered with the Selective Service, which for certain
individuals was a prerequisite to receiving federal financial aid.
Tetioukhine responded that while he was a U.S. citizen by birth, he
had been born in Ireland and lived in Ireland and the United
Kingdom for most of his life. He also stated that he had only
arrived in the United States in March 1999.
In his defense at trial, Tetioukhine explained that not
long after arriving in the United States, he met and befriended
McCoon while they were both staying at a Chabad house (a Jewish
community center) in Rhode Island. After learning of Tetioukhine's
interest in staying in the country, McCoon offered to adopt him.
As part of that process, McCoon brought him a Social Security card
bearing MacEoghan's name. Although the parties now agree that
McCoon never actually adopted Tetioukhine, the latter trusted that
this purported adoption was legitimate. He also testified that in
-5-
the Soviet Union, adoptees regularly changed their names, birth
dates, and other identifiers as part of the adoption process. He
thus believed that he had the right to take on MacEoghan's
identifying information as his own.
B. Tetioukhine's Expert Testimony Proffer
Before trial, Tetioukhine informed the government that he
intended to call an expert witness, Sergei Khrushchev, in his
defense. Khrushchev is the son of former Soviet Premier Nikita
Khrushchev. At the time of trial, the younger Khrushchev was a
senior fellow at the Watson Institute for International Studies at
Brown University in Providence, Rhode Island.
Tetioukhine provided the government with initial
information regarding Khrushchev via a letter dated July 20, 2011.
This missive stated that Khrushchev would testify "about the
cultural and political experience of Soviet citizens in 1991 as
well as the experience of Russian Jews in the Soviet Union as well
as in the United States at the time of Mr. Tetioukhine's arrival."
Khrushchev's attached curriculum vitae addressed his knowledge of
"Russian economic and political reforms" and "US-Soviet relations."
In early August 2011, Tetioukhine supplemented this disclosure with
a brief two-page letter that identified three broad subjects of
Khrushchev's proposed testimony: (1) adoption practices in the
Soviet Union; (2) "the experience of a Russian Jewish immigrant to
Rhode Island in the 1990s"; and (3) "late Soviet era American
-6-
propaganda," which would show that "Russians believed that coming
to the United States was a very simple process and that centralized
government and bureaucracy was extremely limited."
The government sought to preclude Khrushchev's testimony.
The district court held a hearing on August 4, 2011, where it asked
Tetioukhine to make an oral offer of proof regarding the specific
testimony he intended to elicit from Khrushchev. Defense counsel
noted that Khrushchev was present at the hearing and offered to
have him testify, but the trial judge reiterated that counsel
should make an oral proffer.
The proffer that followed focused heavily on Khrushchev's
expertise in "the differences between Soviet and Russian culture
and the culture of the United States," and how these differences
might "impact[ the] decision making" of "leaders and of
individuals." Counsel also discussed, inter alia, Khrushchev's
knowledge of propaganda that had circulated in the Soviet Union,
which portrayed the United States "as a society with little or no
bureaucracy" and "a very free country where foreigners were
welcome." Tetioukhine's counsel suggested that this perception
would buttress the legitimacy of Tetioukhine's subjective belief in
his adoption.
At the hearing's conclusion, the court excluded
Khrushchev's testimony on the basis that it lacked relevance, would
-7-
not be helpful to the jury, and would "confuse and [] obfuscate the
real issues."
C. The Trial and Tetioukhine's Impeachment
For its part, the government informed the court and
defense counsel before trial that if Tetioukhine took the stand on
his own behalf, the government would impeach his testimony with his
1996 conviction for larceny in a building. See Mass. Gen. Laws ch.
266, § 20. The conviction arose from Tetioukhine's theft of
multiple pieces of gold over several months from his then-employer,
a jewelry company. Prior to trial, defendant moved to exclude this
testimony. The court deferred ruling on this motion until trial.
At trial, Tetioukhine took the stand in his own defense.
He portrayed himself as a dutiful, gainfully employed person whose
assumption of MacEoghan's identity was consistent with his desire
to follow the law. When the subject of Tetioukhine's prior
employment at the jewelry company arose, he stated that he had
worked there for four or five months, and that he had left that job
and eventually found another position. He did not mention the
reason for his departure from the jewelry company. Tetioukhine
also testified regarding other jobs he had held during his years in
the country.
After this testimony, the government argued Tetioukhine
had opened the door to admitting his prior conviction by leaving
"the inference that he is a law-abiding citizen with a solid
-8-
employment history" who "follow[ed] the law and pa[id] his taxes."
Although the court did not agree that the door had been opened to
the conviction itself, it permitted a limited line of questioning
regarding the circumstances of Tetioukhine's departure from his
former employer.
When the government resumed questioning and asked
Tetioukhine about the incident, he testified that he had only
stolen "a tiny piece of gold." The government challenged this
assertion, and Tetioukhine responded by minimizing the seriousness
of his thefts. For example, Tetioukhine testified that "[t]his
never went to court. . . . They promised me to basically drop the
case or something like that, and that was the story." The court
ruled that Tetioukhine had now made the conviction itself
admissible. The government then asked Tetioukhine whether he had
pleaded guilty to larceny in 1996, and defendant admitted that he
had.
At the trial's conclusion, Tetioukhine was found guilty
of eight counts of the indictment, one of the aggravated identity
theft counts having been dismissed before trial on the government's
motion. After the jury rendered its verdict, the court later
dismissed another of the aggravated identity theft counts. The
court then sentenced Tetiouhkine to 48 months in prison.
Tetiouhkine filed a timely appeal of the judgment of guilt on the
remaining seven counts.
-9-
II.
We review the district court's evidentiary rulings for
abuse of discretion. See United States v. Chiaradio, 684 F.3d 265,
277 (1st Cir. 2012); United States v. Landry, 631 F.3d 597, 604
(1st Cir. 2011). We do not substitute our views for those of the
district court. Instead, we defer to the trial judge's sound
judgment, vacating only when "a relevant factor deserving of
significant weight is overlooked, or when an improper factor is
accorded significant weight, or when the court considers the
appropriate mix of factors, but commits a palpable error of
judgment in calibrating the decisional scales." United States v.
Nguyen, 542 F.3d 275, 281 (1st Cir. 2008) (quoting United States v.
Roberts, 978 F.2d 17, 21 (1st Cir. 1992)) (internal quotation marks
omitted).
A. The Exclusion of Khrushchev's Testimony
Federal Rule of Evidence 702 provides that "[a] witness
who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion" if
his "scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine
a fact in issue." Fed. R. Evid. 702(a). This evidence, even if it
passes the requirements of Rule 702, remains subject to Rule 403's
balancing test. See United States v. Pires, 642 F.3d 1, 12 (1st
Cir. 2011); see also Fed. R. Evid. 403 (permitting court to exclude
-10-
relevant testimony if probative value is "substantially outweighed"
by danger of, inter alia, unfair prejudice, confusion, or
misleading jury).
The proponent of the evidence bears the burden of
demonstrating its admissibility. See Harrison v. Sears, Roebuck &
Co., 981 F.2d 25, 30 (1st Cir. 1992). Accordingly, the proponent
must explain to the trial judge why the expert's testimony meets
the requirements of Rule 702, so that the court can make an
appropriate assessment of its admissibility. See United States v.
Downing, 753 F.2d 1224, 1242 (3d Cir. 1991) (holding that "a
defendant who seeks the admission of expert testimony must make an
on-the-record detailed proffer to the court, including an
explanation of precisely how the expert's testimony is relevant to
the [issues in dispute]").
Tetioukhine's sole defense was that he lacked the
requisite intent to be guilty of misappropriating MacEoghan's
identity. To advance this defense, he testified to his belief that
McCoon had legally adopted him and that he was unaware of the true
Fionghal MacEoghan's existence. Under these circumstances, he
genuinely believed that the purported adoption lawfully permitted
him to take on a name, birth date, and background different from
those related to his own birth, and that he was therefore telling
the truth as he knew it when he represented himself as MacEoghan to
the world.
-11-
Recognizing that this theory might seem implausible to a
jury, Tetioukhine argued to the court that Khrushchev's "cultural
context" testimony would have shown that his beliefs were
"subjectively reasonable." We take this assertion to mean that a
reasonable person who shared his nationality and cultural
background would have also shared his view of his adoption.2
Accepting, for the purposes of evaluating his evidentiary claim,
that Tetioukhine's subjectively reasonable beliefs would have been
probative of his lack of the requisite intent, we note that
defendant's initial written disclosures did little to elucidate the
link between Tetioukhine's defense and Khrushchev's subjects of
expertise. The supplemental letter sent in August 2011 contained
more specifics regarding Khrushchev's proposed testimony. Once
again, however, its broad statements regarding American propaganda
in the former Soviet Union and "the experience of a Russian Jewish
immigrant to Rhode Island" bore only a slender connection to the
key disputes in the case.
Of course, the relevance of expert testimony regarding
cultural matters is context-dependent and must be assessed on a
case-by-case basis. The one grain of relevance we perceive in
2
Tetioukhine does not fully explain how the "subjective
reasonableness" of his beliefs fits into his defense. Whatever
labels he affixes to his theory of the case, however, we take his
core contention to be that he believed he was acting lawfully when
he used MacEoghan's identifying information as his own. As the
parties do not dispute that such a belief would serve as a defense
to all charges, we accept the proposition for present purposes.
-12-
Khrushchev's proposed testimony concerned Russian adoption law,
custom, and practice. Testimony about this subject might have
buttressed Tetioukhine's purported belief that, once adopted by
McCoon, he could lawfully use MacEoghan's identifying information
as his own.
Given the vagueness of defendant's pretrial disclosures,
Tetioukhine's oral proffer afforded him a critical opportunity to
focus on this aspect of Khrushchev's proposed testimony. Instead,
the oral proffer was larded with the same general references to
cultural differences described in the written disclosures.
Counsel's attempts to explain the significance of American
propaganda available to people in the Soviet Union, and the
supposed perception of the friendly and welcoming nature of
American society, often devolved into unhelpful abstractions that
failed to build the crucial bridge to the issue of Tetioukhine's
intent.
The following exchange was emblematic of the proffer's
murkiness:
MS. MCELROY: Your Honor, [Khrushchev]
can also testify about the expectations that
he had as an individual, but also the
differences --
THE COURT: That who had?
MS. MCELROY: That Professor Khrushchev
had, the differences between the culture that
he experienced in the Soviet Union and the
culture that he experienced when he came here
and his education in both of those cultures
both before and since his emigration to the
-13-
United States and how those cultures work
differently.
THE COURT: Specifically?
MS. MCELROY: Specifically that some of
the propaganda . . . was that America was a
society with little or no bureaucracy; that
America was a free country where foreigners
were welcome at all -- you know, always
welcome; . . . that particularly Jews were
welcome in the United States.
As the district court correctly noted, "Russian culture is a very
broad topic" with little evident probative value, and counsel's
statements regarding the different workings of the two cultures and
the Soviet perception that America "was a free country" did little
to establish the relevance and helpfulness of Khrushchev's
testimony. Thus, based on the information presented, the district
court was within its discretion to conclude that Khrushchev's
proposed testimony was largely irrelevant and unhelpful. Cf.
United States v. Sebaggala, 256 F.3d 59, 66 (1st Cir. 2001)
(concluding that trial judge did not abuse discretion in excluding
testimony regarding "cultural tribal traits and customs" due to its
"tenuous" connection to issues in case).
Despite defense counsel's unfocused exposition of
Khrushchev's proposed testimony, the district court did address the
relevance of expert testimony concerning Russian adoption
practices. The court ultimately characterized that testimony as
irrelevant because Khrushchev would speak to child adoption
practices, whereas Tetioukhine was adopted as an adult. To the
extent that Khrushchev had any relevant testimony to offer on the
-14-
subject of adoption, however, we discern an independent basis for
excluding it. See Samaan v. St. Joseph Hosp., 670 F.3d 21, 31 n.4
(1st Cir. 2012) (affirming exclusion of expert testimony on basis
other than district court's rationale); see also United States v.
Wintermute, 443 F.3d 993, 1000 (8th Cir. 2006) (stating that
appellate court may affirm district court's decision to admit
expert testimony "on any ground supported by the record, even if
that ground was not a basis for the district court's ruling").
Specifically, there was little, if anything, in Khrushchev's
background that would qualify him to offer opinions about adoption
practices at all. See Fed. R. Evid. 702(a) (requiring expert to
have "scientific, technical, or other specialized knowledge"). His
stated areas of competence and his publication record focus heavily
on world affairs and national security issues, rather than family
law and adoption customs in the former Soviet Union. Indeed, his
avowed knowledge in the latter area was "purely anecdotal," United
States v. Giambro, 544 F.3d 26, 33 (1st Cir. 2008) (internal
quotation marks omitted), the simple result of having lived in the
former Soviet Union. Tetioukhine himself was equally capable of
testifying to these matters, as he did. There was no basis for
according Khrushchev the imprimatur of an "expert" in an area where
he lacked specialized knowledge.
-15-
For these reasons, we see no basis for overturning the
district court's exclusion of Khrushchev's testimony.3
B. The Admission of Tetioukhine's 1996 Conviction
A party may introduce evidence to impeach a witness's
specific testimony by contradiction. See United States v. Norton,
26 F.3d 240, 244 (1st Cir. 1994). Where this evidence is used to
"contradict material false testimony injected into the trial by
[the defendant] himself," "the general strictures" of Federal Rules
of Evidence 402 and 403 govern. Id.; see also Fed. R. Evid. 402
(stating that relevant evidence is admissible unless U.S.
Constitution, federal statute, or rules say otherwise); id. 403
(allowing exclusion of relevant testimony if "its probative value
is substantially outweighed" by danger of, inter alia, unfair
prejudice). The defendant may open the door to such evidence even
if it is otherwise inadmissible. See Landry, 631 F.3d at 605.
This principle applies to the admission of prior
convictions. Federal Rule of Evidence 609 sets the limits on the
admissibility of a conviction to impeach a witness's overall
character for truthfulness, particularly if, as here, the
3
Khrushchev was present during the proffer and defense
counsel offered to let the court voir dire him in order to clarify
any uncertainty regarding the specific subjects of his testimony.
Tetioukhine does not argue, however, that the court abused its
discretion in relying only on his oral proffer. Moreover, "[t]he
trial court enjoys broad latitude in executing its gate-keeping
function; there is no particular procedure it is required to
follow." United States v. Vargas, 471 F.3d 255, 261 (1st Cir.
2006).
-16-
conviction was obtained or the defendant was released from
incarceration over ten years ago. See Fed. R. Evid. 609(b)(1)
(allowing admission of conviction ten years or older only if "its
probative value . . . substantially outweighs its prejudicial
effect"). Nevertheless, Rule 609 "does not address the
admissibility of prior convictions when they are offered for
another purpose," such as contradicting specific testimony.
Norton, 26 F.3d at 243. Thus, "a defendant can . . . open the door
to evidence about prior convictions" under Rules 402 and 403,
Landry, 631 F.3d at 605, regardless of whether the conviction meets
Rule 609's requirements, see United States v. Gilmore, 553 F.3d
266, 272 (3d Cir. 2009) ("[P]rior felony convictions more than ten
years old may be used to impeach by contradiction even if they do
not satisfy Rule 609's balancing and notice conditions.").4
Here, we address two separate door openings. The
district court concluded that the first door opened after
Tetioukhine portrayed himself as a law-abiding person with a solid
work history. The court permitted a limited line of questioning
regarding the facts of Tetioukhine's termination from the jewelry
company, but did not admit the conviction itself. The second door
4
The balancing tests of Rules 403 and 609 differ. Under Rule
609(b), the probative value of the prior conviction must
"substantially outweigh[] its prejudicial effect" to justify
admission. Fed. R. Evid. 609(b)(1). Rule 403, by contrast,
permits the court to exclude evidence if its "probative value is
substantially outweighed" by the danger of, inter alia, unfair
prejudice, confusing the issues, or misleading the jury. Id. 403.
-17-
opened when the government inquired about the circumstances of his
departure, and Tetioukhine downplayed the nature of his conduct.
The court then deemed the conviction itself admissible as well.
The main issue in dispute is whether the district court
correctly concluded that Tetioukhine opened that first door when it
stated that "[Tetioukhine] said that he wanted to follow the law."
Defendant argues that this ruling was based on a flawed
recollection of the testimony. We disagree. Tetioukhine testified
that he obtained a position at the jewelry company, where he worked
for "roughly about four or five months." His counsel then asked
whether he "at some point [got] a different job," to which
Tetioukhine replied "Yes." He then spoke about obtaining a
position with an inventory supply company, which later closed,
requiring him to find work with a different inventory company. He
also testified regarding the paperwork he submitted to verify his
eligibility to work in the United States, which, among other
things, was necessary to withhold taxes from his paychecks.
Tetioukhine is correct that he never stated expressly
that he left his position with the jewelry company for innocuous
reasons. We also do not adopt the government's view that his
testimony about his attempts "to follow rules relating to
employment[ and] immigration" was sufficient to open the door to
his conviction, given that this evidence was merely consistent with
his overall defense that he had lawfully adopted MacEoghan's
-18-
identity. Nevertheless, Tetioukhine invited questioning about the
circumstances of his departure from the jewelry company when he
introduced specific testimony about his employment for the apparent
purpose of enhancing his self-portrayal as a law-abiding citizen.
His statements left the jury with the impression that he had an
unproblematic work history, and that he had quit his job with the
jewelry company simply to find another position. The omission of
facts that did not fit into this narrative thus "created a false
impression that made the circumstances of [his] termination
relevant." Landry, 631 F.3d at 605. The opening may have been
slight, but we cannot say that the court abused its discretion in
permitting a limited line of questioning regarding the reason he
left the jewelry company. See United States v. Balthazard, 360
F.3d 309, 317 (1st Cir. 2004) ("By seeking to create an impression
in the minds of jurors that Balthazard had had only limited prior
contacts with law enforcement, Balthazard's counsel opened the door
to questioning about additional reports that linked Balthazard to
other criminal activity."); see also United States v. LeAmous, 754
F.2d 795, 798 (8th Cir. 1985) ("By painting a picture of himself .
. . as a protector of young girls who encouraged alternatives to
prostitution, the defendant invited cross-examination concerning
particular instances of his conduct to the contrary during the
relevant time frame.").
-19-
Tetioukhine then opened the second door largely
unprompted. The government asked Tetioukhine whether the jewelry
company had fired him. He acknowledged that it had, but attempted
to reduce the seriousness of his misdeeds:
Q: You were fired for taking things
from your employer, correct?
A: That's correct.
Q: Gold; correct?
A: Yes. It was a tiny piece of gold,
yes.
When the truth of this last assertion was challenged, Tetioukhine
responded that he "wasn't arrested" for his misconduct, the matter
"never went to [] court," that he "just talk[ed] to policemen," and
"they promised [] to basically drop the case." All of these
statements were patently false. Indeed, most of these statements
were volunteered, rather than directly elicited by the prosecutor's
questions. Tetioukhine's repeated "attempt[s] to minimize the
conduct for which he was convicted," United States v. Baylor, 97
F.3d 542, 545 (D.C. Cir. 1996), were more than sufficient to open
the door to further cross-examination on this subject.
On appeal, Tetioukhine unpersuasively maintains that the
government's line of questioning should have ceased immediately
after he admitted that he had been terminated for "taking things
from [his] employer." After that acknowledgment, the government
asked only a brief clarifying question that inquired whether
Tetioukhine had stolen gold. Tetioukhine then began digging
himself into a hole by stating that he had stolen only "a tiny
-20-
piece of gold," leading to the succession of untruths that opened
the door fully to the admission of his larceny conviction.
III.
There was no abuse of discretion in the district court's
evidentiary rulings. Tetioukhine's convictions are therefore
affirmed.
So ordered.
-21-