Unpublished Disposition, 904 F.2d 711 (9th Cir. 1990)

MEMORANDUM^* 

Defendant-appellant Wayne Vroman ("Vroman") appeals his conviction for bank fraud, 18 U.S.C. §§ 2, 1344 (1988), and conspiracy, 18 U.S.C. § 371 (1988). He also appeals the imposition of a special assessment of $100 at his sentencing, pursuant to 18 U.S.C. § 3013 (1988).

Vroman was jointly tried with two codefendants, Gerald M. Dini ("Dini") and Ken Byrnes ("Byrnes"), whom the jury also found guilty of similar charges. The Government brought this action concerning each defendant's role in the negotiation of stolen drafts of Aetna Casualty and Surety Company. With one exception, these drafts were deposited into a National Commodity Exchange ("NCE") bank account, established to maintain financial privacy for depositors. Although each defendant filed a separate appeal, only Vroman's appeal is before us. We affirm Vroman's conviction and affirm the special assessment.

DISCUSSION

Vroman challenges the denial of his motion to be severed from trial with his codefendants, pursuant to Fed. R. Crim. P. 14. This motion was made on the second day of trial.

a. Waiver

As a threshold matter, Vroman concedes that he did not renew his motion to sever at the close of trial evidence and that failure to do so generally waives appellate review of this issue, citing United States v. Free, 841 F.2d 321, 324 (9th Cir.), cert. denied, 486 U.S. 1046 (1988). In United States v. Kaplan, 554 F.2d 958, 965 (9th Cir.) (cited in Free, 841 F.2d at 324), cert. denied, 434 U.S. 956 (1977), we identified two exceptions to the requirement of renewal to preserve appellate review: " the motion accompanies the introduction of evidence deemed prejudicial and a renewal at the close of all evidence would constitute an unnecessary formality." We conclude neither of these two exceptions applies to the facts of this case. As the Government correctly notes, no specific evidence accompanied the motion since it was presented in anticipation of the introduction of evidence which was purportedly prejudicial. Under these circumstances, the renewal of the motion to sever post evidence would also not be an unnecessary formality. Cf. United States v. O'Connor, 737 F.2d 814, 822 n. 8 (9th Cir. 1984) ("At no point did the defendants even ask for severance because of the evidence which was actually introduced at trial."), cert. denied, 469 U.S. 1218 (1985).

Vroman contends the severance issue may be preserved because he "pursued a similar, alternative avenue" through his three motions for judgment of acquittal, pursuant to Fed. R. Crim. P. 29. We find this argument unavailing because the Rule 14 and 29 motions present different considerations to the trial and appellate courts.¹  Moreover, to countenance appellate review of the severance motion based on this record would undermine the two functions of the renewal requirement.²  Therefore, we conclude under our prevailing case law Vroman waived appellate review of his motion to sever.

b. Rule 29

Alternatively, Vroman summarily asserts his three motions for judgment of acquittal should have been granted.

In viewing the evidence in the light most favorable to the Government, as required, we conclude the trial evidence was sufficient for a rational jury to find Vroman guilty beyond a reasonable doubt. See United States v. Mundi, 892 F.2d 817, 820-21 (9th Cir. 1989). The Frank Ortega check for $4,365.14, with a forged signature of the Aetna Casualty Insurance Company liability claims manager, was negotiated through Vroman's body shop. The jury apparently disbelieved Vroman's theory of defense that this was a normal business transaction and the testimony of Juanita Saunders, Vroman's secretary and office manager, concerning Ortega. Evidence was also introduced concerning Vroman's purchase of two cashiers' checks, each in the name of his codefendants, with NCE proceeds. The NCE bank account contained the deposits of sixteen Aetna claims checks which had been forged. Albert Lockhart, the Government's fingerprint expert, identified Vroman's palm print on an NCE check payable to Vroman. Evidence established Vroman's relationship with his codefendants. FBI special agent Edward Hall testified concerning his investigation of the Ortega check as well as NCE checks written to Vroman. In total, the evidence showed Vroman received and cashed NCE checks in the amount of $38,100. Our review of the evidence shows the motions for judgment of acquittal were properly denied.

Vroman challenges the denial of his motion for mistrial on the basis of the trial court's credibility comment concerning Government witness Dr. Burns. At the end of cross-examination, the court stated:

Thank you, Doctor. And in case you thought you are on trial, I find you not guilty.

After a lunch recess and in the middle of direct examination of a witness, Dini's counsel moved for a mistrial on the basis of the court's remark. The court denied the motion but gave a curative instruction to the jury.³  The denial of a motion for mistrial is reviewed for abuse of discretion. United States v. Morris, 827 F.2d 1348, 1351 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988).

In considering the strong independent evidence of guilt after excluding Dr. Burns' testimony and the limiting instruction, we find the district court did not abuse its discretion. See Sec. I(b), supra. Vroman has failed to establish prejudicial impact from the trial court's comment or that he received an unfair trial constituting reversible error. See United States v. Sanchez-Lopez, 879 F.2d 541, 553 (9th Cir. 1989) (curative instruction may reduce any prejudicial impact); United States v. Laurins, 857 F.2d 529, 537 (9th Cir. 1988) (new trial warranted only where actual bias or jury perceived appearance of partiality), cert. denied, 109 S. Ct. 3215 (1989).

An essential element under the bank fraud statute is a scheme to defraud "a federally chartered or insured financial institution." 18 U.S.C. § 1344(b) (1988). Immediately following closing arguments and the jury instructions, but preceding the retiring of the jury, the Government realized in its case against Vroman it had not proven that Interstate Bank was a federally insured institution. After some discussion about the possibility of calling a witness to address the point, the parties ultimately agreed to stipulate that the bank had deposits insured by the Federal Deposit Insurance Corporation, in conformance with section 1344(b) (1). The Government's motion to reopen its case to present this stipulation was granted by the court over Vroman's objection. This ruling is reviewed for an abuse of discretion. United States v. Huber, 772 F.2d 585, 592 (9th Cir. 1985).

Vroman argues this turn of events deprived him of his Sixth Amendment guarantee to have the jury determine his guilt and his Fifth Amendment guarantee that the jury must determine every element of the charge beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364 (1970) (Fifth Amendment); Duncan v. Louisiana, 391 U.S. 145 (1968) (Sixth Amendment). We disagree.

After the case was reopened, Vroman could have forced the Government to meet its burden to establish this element beyond a reasonable doubt. The Government indicated it would immediately call a witness to address the issue. Instead, Vroman's counsel determined it was unnecessary to wait for a witness to arrive and decided to stipulate that a proper witness would testify on the federal insurance status of the bank.⁴ 

Vroman also notes that "reopening a case for the purpose of introducing overlooked evidence must be done with extreme reluctance because of the undue emphasis given to the introduced evidence with consequent distortion of the evidence as a whole and the possibility that such prejudice will result to the other party as to require a mistrial." Eason v. United States, 281 F.2d 818, 822 (9th Cir. 1960). However, in Eason, we found the decision to reopen was not an abuse of discretion where the jury had already retired and the suggested evidence for reopening was directly responsive to a jury question to the court after jury deliberations had commenced. Cf. United States v. Sisack, 527 F.2d 917, 919-20 (9th Cir. 1975) (distinguishing Eason) .

The Government cites United States v. Faul, 748 F.2d 1204, 1218 (9th Cir. 1984), cert. denied, 472 U.S. 1027 (1985), noting three relevant factors which may be assessed in a decision to reopen: " whether the evidence caused surprise to the defendant, whether he was given adequate opportunity to meet the proof, and whether the evidence was more detrimental to him because of the order in which it was introduced." Id. (internal quotation omitted). In light of the stipulation, the Government persuasively notes there could be no absence of surprise or inadequate opportunity to meet the proof. Further, we find the order of this evidence, just after the conclusion of closing arguments and prior to the commencement of jury deliberations, inconsequential.

On this record, Vroman has not established that the province of the jury was invaded by this stipulation or that the trial court abused its discretion in reopening the case for this stipulation.

The sentencing court imposed a special assessment of $50 for both counts on which Vroman was convicted, pursuant to 18 U.S.C. § 3013 (1988). Vroman challenges this special assessment on the basis of our decision in United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988). The Supreme Court recently reversed that decision and upheld the constitutionality of the assessment. United States v. Munoz-Flores, 110 S. Ct. 1964 (1990). Therefore, we affirm the special assessment.

AFFIRMED.