Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 1226 (9th Cir. 1990)

Nos. 88-5100, 88-5106 and 88-5124.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BEEZER, Circuit Judges, and VUKASIN,**  District Judge.

MEMORANDUM* 

Medeiros, Coleman and Belvin appeal their convictions of conspiracy; computer and mail fraud; making, receipt, and transfer of a false obligation of the United States;1 and theft of government funds. We affirm the judgment of the District Court.

FACTS

Defendants conspired to steal $9,469,348 from the U.S. Department of Defense by directing a government check in that amount to a fictitious payee. One Eunice Williams (a defendant, but not an appellant), in accordance with instructions through Belvin from Coleman, changed records at the Defense Contract Administration Services Region in El Segundo, California in order to issue the check to "Fortress Indemnity Co. c/o Wallace J. Medeiros". When defendant Medeiros attempted to negotiate the check, an officer at the depositing bank became suspicious given the size and, upon discovering the fraud, alerted authorities. Subsequently, defendants' scheme unraveled.

JURISDICTION

This Court has jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

Defendant-Appellant Medeiros asks this Court to vacate his conviction and remand this case to the District Court for a new trial based on 1.) prejudicial error by the trial judge in admitting evidence that Medeiros defrauded a minister in an unrelated scheme, and 2.) error by the trial judge in admitting additional 404(b) testimony regarding yet another unrelated scheme. The fatal flaw in Medeiros argument is his characterization of the evidence in question as unrelated. United States v. Soliman, 813 F.2d 277, 279 (9th Cir. 1987) ("evidence should not be treated as 'other crimes' evidence when the evidence concerning the [other] act and the evidence concerning the crime are inextricably intertwined"); see also 22 C. Wright & K. Graham, Federal Practice & Procedure Sec. 5239 at 441 (1978). The standard of review of whether certain evidence should be considered proof of "other crimes" under F.R.E. 404(b), the so-called bad act rule, is de novo. Soliman at 278.

In the instant case, evidence by the minister, Pastor Brooks, demonstrated, among other things, the relationship between Medeiros and Coleman, and, consequently, is direct evidence. Similarly, the other evidence Medeiros challenges--the testimony of Anna Riley, describes how the check was transported and is admissible as direct evidence of how defendants committed the crime.

Defendant-Appellant Coleman asks this Court to reverse her conviction on the grounds that 1.) the trial court committed prejudicial error by admitting the Riley and Brooks evidence, and 2.) she was deprived of her constitutional right to effective assistance of counsel in the preparation and presentation of her defense. The first argument has been disposed of above. As to Coleman's second argument, while it is more appropriately brought as a collateral attack of her sentence pursuant to 28 U.S.C. § 2255, the Court can, and in this case will, consider an ineffective assistance of counsel claim brought on direct appeal. United States v. Anderson, 850 F.2d 563, 565 n. 1 (9th Cir. 1988).

Claims of ineffective assistance at trial, when cognizable on direct appeal, present a mixed question of fact and law requiring de novo review. United States v. Rachels, 820 F.2d 325, 328 (9th Cir. 1987). To establish ineffective assistance of counsel, a defendant must show that his attorney's performance was deficient and that his deficient performance resulted in prejudice. Strickland v. Washington, 104 S. Ct. 2052 (1984). Upon review, the Court determines that Coleman has not made the requisite showing because her counsel's conduct, to which she specifically objected, did not fall below the standard of a reasonable attorney. Id.

Defendant-Appellant Belvin seeks the reversal of his conviction and remand to the District Court with instructions that the cause be dismissed or, alternatively, that he be granted a new trial. Belvin presents four arguments: 1.) that the trial court's instructions, failing to require jury unanimity as to the object of the conspiracy, constituted reversible error as to all counts of which Belvin has been convicted, 2.) the conviction for multiple offenses, under the facts presented, constituted multiplicity of the charges such that appellant Belvin was subjected to violation of double jeopardy provisions, 3.) there was not substantial evidence presented at trial to support his convictions, and 4.) he was denied effective assistance of counsel during the course of the trial.

Treating the arguments in the reverse order, we reject Belvin's ineffective assistance of counsel claim. The conduct of Belvin's counsel did not fall below the standard of a reasonable attorney nor was Belvin prejudiced by any of his counsel's alleged errors. See Strickland, 104 S. Ct. at 2064. Belvin's third argument, that there was not substantial evidence presented at trial to support his convictions, has no merit. Claims of insufficient evidence to sustain a conviction require a court to determine whether a rational jury could have found the essential elements of the crime beyond a reasonable doubt. United States v. Meyers, 847 F.2d 1408, 1412 (9th Cir. 1988). In reviewing a claim of insufficient evidence to sustain a conviction, the Court views the evidence in the light most favorable to the government. Id. Belvin's own admission combined with the testimony of Sneed, the government's records of phone calls among the appellants and other circumstantial evidence, when taken in the light most favorable to the prosecution, was more than sufficient to sustain Belvin's convictions.

Belvin's second argument, that he was placed in double jeopardy because of a multiplicitous indictment, is as unfounded as the arguments addressed in the preceding paragraph. Indictments which charge a single offense in different counts are multiplicitous. An issue as to whether an indictment is improperly multiplicitous is reviewed de novo as a mixed question of fact and law. See United States v. Gonzalez, 800 F.2d 895, 897 (9th Cir. 1986). The counts on which Belvin was convicted, particularly counts three, four, and six, each arose from different statutes (18 U.S.C. §§ 471, 641 and 473). Despite some overlap of evidence among the counts, each required proof of different facts. Hence, there was no multiplicity.

Finally, Belvin's first argument that his conviction must be reversed because the trial judge failed to give a "unanimity instruction" as to the conspiracy count, has no merit. Belvin objected to the instruction in question at trial. Where a defendant does object to instructions at trial, improper instructions require reversal unless harmless error. United States v. Feldman, 853 F.2d 648, 652-53 (9th Cir. 1986), cert. denied, 109 S. Ct. 1164 (1989). In reviewing an allegedly erroneous jury instruction, the Court is to consider the instructions as a whole. United States v. Frazin, 780 F.2d 1461, 1468 (9th Cir. 1986), cert. denied, 107 S. Ct. 158 (1986). Judge Lew, instructing the jury, followed the Manual of Model Jury Instructions for the Ninth Circuit. Explaining conspiracy, Judge Lew said that the jurors must first find that there was an agreement among the conspirators to steal government funds or to "launder" government funds. Standing alone, this might confuse jurors and result in a conviction without a unanimous agreement among the jurors as to what the agreement between Belvin and the others was. Some jurors might have thought the agreement involved "laundering" and others might have thought it was stealing. However, Judge Lew's instruction also included a directive that the jurors find beyond a reasonable doubt that there was a joint plan to commit the offense charged in the indictment, with each juror agreeing on which offense was committed. This addition, taken with the rest of the jury instructions, eliminated any possibility of confusion. Feldman at 653.

Accordingly, the judgment of the District Court is AFFIRMED.

 *

The panel has concluded that the issues presented by this appeal do not meet the standards set by Circuit Rule 36-2 for disposition by written opinion. Accordingly, it is ordered that disposition be by memorandum, forgoing publication, and that this memorandum may not be cited to or by the courts of this circuit save as provided in Circuit Rule 36-3

 **

Hon. John P. Vukasin, Jr., United States District Judge for the Northern District of California, sitting by designation