USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2167
UNITED STATES OF AMERICA,
Appellee,
v.
ANTONIO MEDINA PUERTA,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________
____________________
Morris M. Goldings with whom Richard S. Jacobs
___________________
__________________
Hawkes & Goldings were on brief for appellant.

and

Mahon
_____

_________________
Timothy Q. Feeley, Assistant United States Attorney, with w
__________________
Donald K. Stern, United States Attorney, was on brief for the Uni
_______________
States.
____________________
October 21, 1994
____________________

BOUDIN, Circuit Judge.

_____________

On September

jury indicted

Antonio Medina

count of bank

fraud under 18 U.S.C.

5, 1991, a

Puerta, charging him

1344

grand

with one

and one count of

transportation

in foreign commerce of stolen or fraudulently

obtained funds

under 18

events

described

in

U.S.C.

the

indictment was

deposited

knowingly

misrepresented the amount

received

$365 check

2314.

credit

in

his

of $365,000

Bank

to

of

The

gist of

the

that

Medina

had

Boston

account,

as $365,000, ultimately
his

account,

and then

transferred $350,000 of these fraudulently obtained funds

to

his account in an English bank.

At arraignment
ordered

on October 8, 1991, the magistrate-judge

that pre-trial

November 1, 1991.

motions by the

defense be

On this deadline, Medina filed a number of

motions that were subsequently resolved.

was

repeatedly delayed,

January

4, 1993.

following a

filed by

In

change of

largely at

his own

the meantime,
counsel by

Medina's trial date

request, until

on November

Medina,

24, 1992,

his new

counsel

submitted five additional pre-trial motions, accompanied by a

motion seeking leave to file the motions late.
One of these motions--with which
concerned--asked
that

it was

prosecutor

that the

being
made in

restitution to the

case be

pursued in
1987

not to

this appeal is in part

dismissed on

breach of

a promise

prosecute

bank of $200,000.

the ground

if Medina

by the
made

The government opposed

-2-2-

the motion

to file out of

time.

On December

30, 1992, the

district court denied the request to file motions out of time

(with exceptions

not here relevant), ruling

had not been shown for the late filing.

that it had "nevertheless"
to see whether an
of

that good cause

The

court also said

examined the substantive

exception should be made in

motions

the interests

justice; in giving a negative answer, the court found the

assertions made

in

support of

the motion

to dismiss

were

insufficient to justify an evidentiary hearing.

Medina was tried in
in the

light most

January 1993.

favorable to the

The

evidence, taken

government, see
___

United
______

States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, 63

______
____
____________
U.S.L.W.

3265 (U.S. Oct. 3, 1994), showed the following.

In

1986 Medina was a research associate at a non-profit research

organization
Institute.
fluent

in
Medina

Boston

then

known

as

the

Eye

Research

had been born and raised in Spain and was

in both English and Spanish.

degrees in

optics and engineering

electrical

engineering

from

He had Spanish graduate

and a graduate

Massachusetts

degree in

Institute

of

Technology.
On November
account in
most of

that branch of

his banking.

Banco Central
Spain,

3, 1986,

and

Medina deposited
the Bank

made

in his

of Boston where

he did

The check was a bank check prepared by

of Spain, dated
was

a check

payable

-3-3-

October 30, 1986,

to

Medina.

at Toledo,
The

written

designation

of the

amount

Trescientos Sesenta
hundred

was, in

Spanish, "Dolares

Cinco," which

and sixty-five

translates

U.S. dollars."

There

as

USA,
"three

was also

an

arabic-numeral expression of the amount in a small box on the

right-hand

side of

the check:

"USD

365,ooo."

The words

"First National Bank of Boston" appear on the check, and both

the
on

government and Medina have described it as a check drawn

Banco

Central's

own

checking account

at

the

Bank of

Boston.
When

Medina

deposited

the

check in

his

account

on

November 3, 1986, he listed the amount on the deposit slip as

"$365,000."
to

the

Two
branch

representative,
Medina's checking
from

the

$3,000.

days later, on November

and
Lisa

requested
Popielski,

account to an

November 3

deposit,

Popielski said that

5, Medina returned

a
to

customer
wire

$350,000

account in England.
Medina's

balance was

she needed to

service
from
Apart
about

verify that the

check

had been collected and asked Medina to return the next

day.

When Medina returned on November 6, Popielski told him

that

the $365,000 credit

had been deleted

from his account

and the check had been returned to him by mail.

She told him

to bring

the check back to

her if he intended

to redeposit

it.
The following day, November
check

and

Popielski told

7, Medina returned with the

Medina

that the

check

had been

-4-4-

returned for lack of his endorsement; he then signed the back

of

the check, Popielski filled out a second deposit slip for

him in

the amount

of $365,000,

check into his account.

the

bank and

signed a

transfer of $350,000
Bank in

and Medina

redeposited the

On November 12, Medina

wire transfer

to an

order, directing

account in his

Cambridge, England.

Later

returned to

name at

the

Lloyd's

that morning the

funds

early December

1986,

were wired to England.

When

interviewed by

the

FBI in

Medina admitted that he had deposited the check but explained

that he thought
ministry

for

that the
a

check was funding

research grant

Research Institute.

He

said

for
that he

his

from a
work

Spanish

at the

had purchased

Eye
about

$150,000 worth
where

some

of equipment in

of the

Spain where it

research was

to

remained and

be conducted.

Medina

subsequently gave to the FBI a letter from a Spanish ministry

stating that a committee had agreed to propose the funding of
a grant.
Medina
prepared

also submitted

within

the

proposed funding

trial that

the FBI

of

document

Health

which

a research application by Medina

of $282,286.

There was

this application had never

and that, if it

a summary

National Institutes

recommended NIH approval of

with

to

evidence at

been finally approved

had been funded, the Eye

Research Institute

and not Medina would have received the funds.

There was also

-5-5-

some evidence,

apparently disputed, that Medina

had in fact

purchased $138,755 in specialized equipment in Spain.

At

trial

repeatedly.

it

that

the

bank

The processing section of the

Banco Central about

before Medina

developed

the check,

had redeposited

had

stumbled

bank had queried

and on November
the check, Banco

6, the

day

Central had

______
wired

that the proper

Medina
debited

amount of the

redeposited the check

against

Banco

on November

Central's

credited with a $365,000

check was $365.

7, only

account,

deposit.

When

$365 was

but Medina

was

An interoffice adjustment

slip was prepared to reduce Medina's deposit by $364,635, but

Medina's account records were not corrected until on or about
November

25 when

most

of the

money

had long

since

been

transferred to England.
Although Medina
was

did not testify, his

that this was an

innocent misunderstanding.

present

an expert witness

Spanish

accounting

between

American and

punctuation

of

who was

who gave

Spanish

familiar with

Spain and

on the

differences

Spanish practices

in the

writing and

arabic

words

Medina did

testimony

numbers

government's position was that

written

position at trial

on

the

on

large

checks.

The

Medina had certainly read the

check,

which

indisputedly

represented its amount as $365, and had known that he was not
entitled to $365,000.

-6-6-

On January 28, 1993,

counts.

the jury convicted Medina

on both

Thereafter, Medina filed post-trial motions renewing

his request
supposed

for an

evidentiary hearing on

breach of

promise

not

to

the government's

prosecute.

In

supplemental memorandum, Medina said that new evidence showed

that the government had a motive to retaliate which explained
its

breach of

the alleged

promise not

to prosecute.

court denied the motions, calling the proffer inadequate.

The
On

September 30,

1993, the court sentenced Medina to 18 months'

imprisonment

and

restitution

required

that

Medina

in a total amount of $150,000.

pay

fines

or

The court stayed

the sentence pending this appeal.

Medina's initial arguments on
and post-trial requests for
government

breached

its

appeal relate to his pre-

a hearing on his claim

promise

not

to

that the

prosecute

if

restitution were made.

The government says that the original

pre-trial

submitted

motion

was

request for leave to

end of the

refusal

to

matter.

grant

together

file; leave was not granted

adequate excuse for the

the

late,

his

motion to

district court's ruling that

the

because no

delay was given; and that

Medina,

with

should be

scarcely acknowledging the

file

late,

attacks

the

the proffer was insufficient to

justify an evidentiary hearing.

We

see

no reason

to

choose

between the

alternative

grounds for denial of a hearing--lateness and lack of merit--

-7-7-

because each is adequate.

The original motion was filed long

after the deadline with no explanation other than a change of

counsel.

Where

motion to be
abuse of

filed out of

discretion.

F.2d 17, 21
rested solely
refused

the district

to

court refuses to

time, the standard

E.g., United States v.

____ ______________

n.5 (1st Cir. 1992).

on the

If

lateness of

entertain a

court's

on appeal

is

Roberts, 978
_______

the pre-trial motion

post-trial

precautionary

new

the district judge had

replicate

motion, there would be no abuse of discretion.

district

allow a

comment

on

of the

and
same

Nor would the

the

merits in

denying leave to file either remove the lateness objection or

alter our standard of review.
The result is no different if we do consider the merits.
In substance, Medina's proffer asserted
assistant U.S. attorney
the
to

advised Medina's

government would not prosecute

make restitution to the

that in July 1987 an

then counsel

that

Medina if he would agree

bank in the

amount of $200,000.

The proffer then concluded:

"By the end of 1988, I

[Medina]

had paid the Bank of Boston an amount greater than $200,000."

Medina's
motion

affidavit was
making the

also

the basis

same request

for a

for the

post-trial

hearing on

the same

ground.
This affidavit
accepted

does not

say that Medina

the government's offer or that

bank were in

compliance with the

ever formally

his payments to the

purported agreement.

Our

-8-8-

sense that the affidavit is the product of artful drafting is

reinforced by

indications that the Bank

of Boston recovered

substantial amounts by attaching Medina's account at

bank.

Medina

also

made

ascertain, to remedy the

they were

first noted by

hearings are not

that they will be

no

effort,

as

far

another

as we

can

deficiencies in his affidavit after

the district

required when there

fruitful.

F.3d 273, 280 (1st Cir. 1993).

court.

Evidentiary

is no likely

United States v.
_____________

prospect

McAndrews, 12
_________

The

supplementary post-trial claim that the prosecution

was based on

a vindictive motive is scarcely

Medina's further affidavit on this

worth comment.

issue is both sketchy and

jumbled, but rests importantly on a lawsuit brought by Medina

against

the government.

motion

to strike

question was

Medina's

prior

one

government pointed

submission that

brought after
_____

untimeliness aside,
the

The

Medina had

no

the lawsuit

been indicted.

Medina's new affidavit

and provided

out in

basis

in
Its

added little

independent

to

for an

evidentiary hearing.
Several
We

of Medina's

merits arguments

are significant.

start with those that relate only to bank fraud which was

the offense
stood

charged in

at the time Medina

been twice

count I

of the

indictment.

deposited his check

amended), the statute

As it

(it has since

in pertinent part

read as

follows:

-9-9-

(a) Whoever knowingly executes, or

attempts to execute,

a scheme or artifice -(1) to defraud a federally chartered

insured financial institution or

or

(2) to obtain any of the moneys, funds,

credits, assets, securities, or other
property owned by, or under the custody
or control of, a federally chartered or
insured financial institution by means of
false
or
fraudulent
pretenses,
representations, or promises . . . .
[shall be punished
statute].
18 U.S.C.

as set

forth in

the

1344(a).

Count

of

the

indictment charged

that

executed or attempted to

execute a scheme both to

federally

insured

chartered

or

bank

and
___

to

property by false or fraudulent representations.

Medina

had

defraud a
obtain

its

Consistent

with the statutory language, the district judge told the jury
that it

could convict on count I if it found either a scheme

to defraud or
__

a scheme to obtain property by

means of false

or fraudulent representations.
Medina's
(a)(2), two
that here,

first
or

objection

is

that

more misrepresentations

according to Medina, the

under
are

required1

and

government charged only

one misrepresentation and proved none at all.

responds that the evidence

subsection

The government

was adequate to show a

scheme to

____________________
1This issue was left open in United States v. Lilly, 983
_____________
_____
F.2d 300, 305 n.10 (1st Cir. 1992), and we have no occasion
to decide it here.

-10-10-

defraud under subsection

whether

(a)(1) so that

misrepresentations

adequately

proved under

need

to

it does not

be

multiple

subsection (a)(2).

But

matter
or

were

here, the

false or fraudulent representations charge was also submitted

to

the jury

count

I.

as an
Thus,

alternative basis
at

least in

for convicting

theory, a

problem

under

might be

presented for the government if it had charged only one false

representation or failed to prove any.
In

fact,

we

think

that

alleged multiple representations

the jury to find at least two.
with making
the district
were

the government's
and the evidence

false and fraudulent "representaions" [sic], and

court charged

required.

Although

to be in the amount of
the

generic

permitted

The indictment charged Medina

the jury

true amount

that "representations"

the indictment

Medina's conduct involved submitting "a

in

indictment

also

said

check he represented

$365,000.00, knowing the check to

of

$365.00," we

that

do not

see

be

why this

statement prevented the government from proving that

this representation was made more than once.

As

for

the

adequacy

misrepresentations could
first deposit slip

of

the

easily have

words on the check

in

the amount was

redeposited on

been found.

said that the check was in

$365,000 when the

Spanish, that

evidence,

two

Medina's

the amount of

said plainly, although

$365.

November 7, Medina again

When

the check was

submitted a deposit

-11-11-

slip in
check

the larger amount.

was

actually for

Medina does not

$365,000.

claim that the

Instead

he says

that

Popielski completed the second deposit slip and that there is

no evidence to

show that

he (Medina) filled

out the

first

one.
Ample evidence

showed that it was

Medina who submitted

the check on November 3 with a deposit slip in

$365,000;
showing

the
him

transaction
slip.

evidence
at

the

included
teller's

at the time stamped

the amount of

surveillance
window

making

on the bank

photographs
a

deposit

of his deposit

As for the redeposit on November 7, again confirmed by

a surveillance
it

is

photograph of Medina at

irrelevant that

Popielski

the teller's window,

wrote the

amount

on the

second deposit slip so long as Medina knowingly presented it.

Thus,

there was proof of at

least two false representations

by Medina, one on each presentation of the check.

Medina's second argument on count I is that the district
court

erred

deposit of a
that

"[a]

in

refusing to

check alone [is

check

is not

therefore cannot be
requested
States,
______

instruct

jury

were

that "the

not] a misrepresentation"
factual

assertion

characterized as true or

statements
458 U.S.

the

drawn

279 (1982),

where the

at all

false."

from Williams
________

and
and
These

v.

United
______

Court said

that a

check was merely an order to pay funds and did not constitute
an implied representation that the one who made and deposited

-12-12-

it

actually had funds in the

drawn.2

The

district court

account on which the check was

refused to charge

the jury

in

this

case with the language drawn from Williams.

________

We believe

that its decision was correct.

The
implied

government in our own

representation

sufficient

to

cover

that
the

case was not

Medina had

check.

relying on any

funds

Rather,

on

the

deposit

government

charged that in depositing the check Medina had affirmatively

misrepresented--at least through

the deposit slips--that the

check being deposited was one whose

face value was $365,000.

We have read both the indictment and the government's closing

arguments to the jury,
that the

and conclude that there is

jury misunderstood

no chance

the government's theory.

That

theory does not present the implied misrepresentation problem

addressed in Williams.
________
Next, in

a very

brief argument, Medina

explanation that "the only possible victim" of

defraud in

the present case

admittedly not

any scheme to
Banco Central,

a federally chartered or insured institution.

The evidence showed the

the statute,

would have been

claims without

was induced

Bank of Boston, which is

by Medina's

pay out a large sum to Medina.

covered by

misrepresentations to

It is not clear

whether Bank

____________________
2Williams was a prosecution under a false statements
________
statute of a defendant who deposited in his account in one
bank a check--not covered by adequate funds--that he drew on
his account in a second bank.
-13-13-

of Boston might have had a claim against Banco Central or its

account

for

the

latter's

mistake

in

depicting

arabic

numerals; Banco Central, after all, had warned Bank of Boston

about the mistake before the redeposit.

But that possibility

does not alter the fact that Bank of Boston was the immediate
victim of the fraud.
Finally, Medina makes the

interesting argument that the

jury might have convicted Medina without true unanimity, some

(but not all) jurors
1344(a)(1),

and

believing that he had violated

others

(but

violated section 1344(a)(2).

agree

that

the

1989).

If so,

convicted of a crime

believing

that

he

Both the government and Medina

two subsections

Accord United States

______ _____________
Cir.

not all)

section

identify

v. Bonnett, 877
_______
it follows

separate crimes.

F.2d 1450, 1455

that Medina

(10th

could not

unless the jurors could all

be

agree that

at least one of the subsections had been violated.

This same

problem

crime

is

sometimes

presented

where a

single

is

defined by several alternative acts any one of which suffices

___________
for conviction.3

The government
cites

us to

guilty

accepts that unanimity was

a "general

verdict

on an

rule" that "when

indictment

required but

a jury

charging

returns a

[in one

count]

____________________
3Compare United States v. Gipson, 553 F.2d 453 (5th Cir.
_______ _____________
______
1977), involving a statute directed at anyone who "receives,
conceals, stores, barters, sells or disposes of" certain
stolen property.
See generally 3 W. LaFave & J. Israel,
_____________
Criminal Procedure
23.7 (1984).
__________________
-14-14-

several acts in
evidence
charged."
(1st

the conjunctive, the

is sufficient with respect

verdict stands if
to any one

the

of the acts

United States v. Murray, 621 F.2d 1163, 1171 n.10

_____________
______
(1980).

See also
________

Turner v. United States, 396 U.S. 398, 420 (1970).

______
_____________

But it is

one
to

Cir.), cert. denied, 449

_____________

U.S. 837

thing to say that the evidence is sufficient if adequate

________
establish

any

one

of

several

acts

charged

in

the

alternative; it is quite another to take the general language

of

Murray
______

and

Turner to
______

foreclose

any

inquiry

into the

adequacy of the instructions.

____________
Here, the government

concedes that two

were created by the two subsections.

why

Medina would

instruction

that

either section
both).

been entitled

the jury

had

see no reason

on request

to an

agree unanimously

(a)(1) or subsection (a)(2)

__

that

was violated (or

Of course, where two separate crimes are charged but

each in a separate count, the problem

jury

Thus, we

not have

to

separate crimes

is told

that it

must

evaporates because the

be unanimous

on each

count of

conviction.

Here, the government charged a violation of both

____

subsections

in

wishing

to be

a single

count,

charged with

and

Medina, probably

three counts

rather than

apparently did not argue that count I was duplicitous.

the

risk

of

jury

confusion cannot

be

not

answered

two,
Thus,

here

by

pointing to the normal requirement that the jury be unanimous

on any count of conviction.

-15-15-

The government

argues that

the district court

case charged the jury that

it could find either a

defraud

obtain monies

"or" a

scheme to

representations; that the government

in this
scheme to

by means

of false

had "to prove each part

of each offense beyond a reasonable doubt"; and that the jury

verdict must
_______

be unanimous.

But these

instructions do

clearly tell the jury that it had to be unanimous in

within count I of
______
or

the indictment either a scheme

a scheme based on false representations.

what

the

jury

would

have

understood,

not

finding

to defraud

That is perhaps
but

it

is

not

inevitable.
Still, the defense did not
instruction

on this issue, so

plain error.

the

reversal can be

had only for

E.g., United States v. Arias-Santana, 964 F.2d

____ ______________
_____________

1262, 1268 (1st Cir.

that

ask for any clarification or

jury

1992).

could

have

We see no
divided

Although

practical likelihood
along

the

now

suggested

by Medina.

about two

separate crimes, in this case the evidence offered

as to

count I made the

fraud

and misrepresentation

that is probably why

in a single count.

in theory we

lines

same conduct the basis

____
branches of

may be talking

for both the

count I.

Indeed,

the government charged both subsections

In all events, on this evidence, the jury
____

either had
or

to believe that Medina

neither.

There was

violated both subsections

no realistic possibility

of a split

verdict of the kind now conjectured by Medina.

-16-16-

If

the trial judge had been asked to clarify the point,

quite likely

he would have told the jury that it had to find

unanimously either a scheme

false

representations.

because

no actual

verdict.
error

at all.

conduct

On

Probably he

threat

There was

was not asked

existed here

of a

based on
to do so

non-unanimous

not only no plain error but

arguably no

other facts--for example, where divergent

underlay the two

same conduct

to defraud or a scheme

branches of subsection

could realistically violate one

(a) or the

branch but not

the other--our view might be quite different.

Medina's
indictment in

next claim of error relates to count II of the

which he was charged

and transferred in
$350,000.00,

with having "transmitted

foreign commerce money

more or

less, knowing

in the amount

the same

stolen, converted and taken by fraud . . . ."

to have

of
been

The statute in

pertinent part makes it

unlawful to "transport in interstate

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."

18 U.S.C.

2314.
Medina

argues on

property must have

See
___

appeal

that under

been stolen

this statute

"before being

the

transported."

United States v. Tashjian, 660 F.2d 829, 840 (1st Cir.),

_____________
________

cert. denied,
____________
says

454 U.S. 1102

blandly but

without

(1981).

Here, Medina's

explanation, "no

brief

money had

been

-17-17-

stolen

or taken

Possibly

by

fraud at

what Medina

money was not stolen,

account

of

the

the

intends to

time of
argue

the

transfer."

is that

the bank's

converted or taken by fraud

wrongful

credit

to

Medina's

November 7 because

at that time no

out by the

Put differently, Medina

bank.

merely on
account

money had yet

may be

on

been paid
claiming

that when transferred the money had not yet been stolen.
___
We see no reason why the fraudulent
more than
the

the

Medina's deposit of the check in Medina's account,

misrepresentations,

him, and

$365,000

was

scienter.

available

10, at least two

England.
before

the availability

the requisite

November

True, the
the

November

taking required any

transfer,

Popielski

to Medina

had

it

10 onward the money

withdrawal

more

was just as

on

wire transfer to

have nullified
been

money to

testified that

for

days before the

bank could

of the

the deposit

alert; but

from

much available to

Medina as if it were cash stored under his mattress.

Medina's final set of
the counts against
argument

that

him.

the

Bank

defrauded of its money,

by fraud,
to the

He starts
of

Boston

with a
could

since Banco Central informed Bank

$365.

The

of

straightforward
not

nor could the money have

second deposit on

check was

arguments is directed to both

have

been

been taken

of Boston prior

November 7 that the

government concedes that

amount of the
a defendant,

whatever his state of mind, cannot be convicted of possessing

-18-18-

drugs or

stolen property if

the substance is not

controlled substance or the property not stolen.

States
______

v. Rose,
____

denied,
______

442 U.S.

F.2d 881, 885-86

a

change in

the

590 F.2d

232, 235

E.g. United
____ ______

(7th Cir.

1978), cert.
_____

929 (1979); United States v.

______________
(5th Cir. 1976).
nature

of

in fact a

Oviedo, 525
______

In such cases, of course,

the

property

can

defeat

an

essential element of the offense.

The government may overstate
"[i]n

the matter in arguing that

contrast the crime of bank fraud focuses on Medina and

his state of mind, and not

might

be

difficult

to

property by fraud, if

on the conduct of the bank."

defraud an

individual,

or

the "victim" were well aware

that the

statements

unrealistic

as applied to a large bank which happens to have

true

facts

somewhere

in

its

But

obtain

defendant's

the

were untrue.

It

the analogy

files.

There

is

is

no

indication that Banco Central's warning was known to the bank

teller who accepted the check for credit

on November 7 or to

Popielski when she facilitated the deposit and authorized the

wire transfer.
It

may well be that

Uniform Commercial
channels is, in some
everyone

for other purposes,

Code, notice

to the bank

say under the

through proper

sense and for some purposes,

within the bank.

But Medina did

notice to

defraud the bank

representatives with whom he dealt; and money was credited to

his

account and transferred out of the bank because of their

-19-19-

belief in his statements, and not

It

is

hard to

imagine any

on some independent basis.

reason

of practical

policy to

accept the unitary-victim argument that Medina may be urging.

Absent compelling authority, we reject the argument.
Medina next says that the
been

charged as two separate offenses

the indictment
fact that in
transfer

multiplicitous.
part of

of $350,000

transfer,

including a

out

multiplicity is
of the

same

in two counts, making

This argument rests

count I the

reference to

on the

government mentioned

of Medina's

fraud, is the heart of count

use

same deposit and transfer has

account.

The

the original

the
same

taking by

II of the indictment.

Although

forbidden by double jeopardy principles, the

evidence or

conduct

in relation

to

two

different counts does not itself establish multiplicity.

Even "where
violation of

the same

act or transaction

two distinct statutory provisions,

constitutes a
the test to

be

applied to determine

only one is whether

whether there

are two

each provision requires [as an

proof of a fact which the other does not."

Blockburger,
___________

284 U.S. 299,

required

proof that

federally

insured

interstate

or

offenses or

bank;

foreign

United States v.
_____________

304 (1932).

a scheme

had been

section

2314

transportation

element]

Here, section 1344

executed against
required
of

proof

a
of

stolen property.

Each provision thus requires proof that the other does not.

-20-20-

Medina's last

argument is that the

evidence simply did

not permit a rational jury to find him guilty on either count

and, alternatively,
have

that the district court

ordered a new trial.

The

should at least

denial of a motion to direct

an acquittal is reviewed de
__

novo, United States v. Gonzalez____ _____________

_________

Torres,
______

(1st Cir.

980 F.2d

court's denial of a

788, 790

1992), and

the trial

new trial request is reviewed

for abuse

of discretion.

United States v. Nickens, 955 F.2d

______________
_______

112, 116

(1st Cir.), cert. denied, 113 S. Ct. 108 (1992).

____________

We need not

differentiate

the

verdict

sharply,

because

in

this

case

jury's

was neither irrational nor against the weight of the

evidence.
Medina's
critical

conduct

was

issues involved

largely

undisputed,

his knowledge

and

and state

the

of mind.

Absent a confession of guilt, the government's case could not

be air-tight.
applied

to a

expected such

Yet there was no

proof that Medina

Spanish ministry
a check from

for a

grant of

Banco Central.

had ever

$365,000 or

His persistence

and haste in getting the money deposited into his account and
then out of the country
must

certainly

innocent mistake

have

were at least suspicious.

thought

that

was fragmented,

Medina's

The

story

improbable in a

jury
of

an

number of

respects, and ultimately did not hang together.

It is beside the point that the bank's

customer service

representative misread the check; there is no indication that

-21-21-

she could read Spanish, as Medina could.

of knowing whether Medina
check in this
expert

amount.

might or might not be

Medina's brief states

witness thought

$365,000.

She also had no way

that

the

value

expecting a
that his

of the

check

own
was

In fact, the expert, whose testimony would not in

any event be binding

the check, "as

on the jury, testified to the

reflected in

that box," i.e.,

____

value of

the box

that

contained the mistaken arabic numerals "$365,ooo."

Finally, in an attempt

to bolster his lack of

claim, Medina's brief singles

arguments
jury.
of

out a variety of

evidence

comments and

made by the prosecutor that Medina says misled the

It appears that none of the statements was the subject

objection

subject to
remotely
provide

at trial;

while one

or

two might

adjustment, none is especially

close to

no

plain

reason to

evidence.
Affirmed.
________

error.

hesitate

troubling or even

The prosecutor's
in

our

have been

appraisal

remarks
of

the

-22-22-