270 F.3d 30 (1st Cir. 2001), 99-2236, United States v. Scott

Docket Nº:99-2236, 00-1379, 00-1381, 00-1669, 00-1767, 00-2350
Citation:270 F.3d 30
Party Name:UNITED STATES, Appellee, v. ALAN N. SCOTT, Defendant, Appellant.
Case Date:October 30, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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270 F.3d 30 (1st Cir. 2001)



ALAN N. SCOTT, Defendant, Appellant.

Nos. 99-2236, 00-1379, 00-1381, 00-1669, 00-1767, 00-2350

United States Court of Appeals, First Circuit

October 30, 2001

Heard Sept. 5, 2001


[Hon. William G. Young, Chief U.S. District Judge, and Hon. George A. O'Toole, Jr., U.S. District Judge]

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[Copyrighted Material Omitted]

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Rodney S. Dowell, with whom Berman & Dowell was on brief, for appellant.

Louis M. Fischer, United States Department of Justice, with whom James B. Farmer, United States Attorney, and John M. Hodgens, Jr., Assistant United States Attorney, were on brief for appellee.

Before Boudin, Chief Judge, Cyr, Senior Circuit Judge, and Lynch, Circuit Judge.

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LYNCH, Circuit Judge.

Identity theft is said to be among this country's fastest growing crimes. In the 1990's and earlier, Alan Scott, a former paralegal handy with documents, apparently enhanced his income through an extensive array of white collar crimes using the identities of others. Those of his activities that took place in the late 1990's led to a series of indictments and three separate criminal cases against him, one case a year from 1997 to 1999; all three cases led to convictions. He appeals in each and we handle the three cases in this omnibus opinion. We take the cases in chronological order.

In a 1997 case, Scott pled guilty to bank fraud, 18 U.S.C. § 1344 (1994), and to making and possessing a forged check, 18 U.S.C. § 513(a) (1994). Scott took checks from a Boston law firm that had employed him as a legal assistant in 1995. The checks were payable to clients and to the firm; Scott deposited the checks, with forged endorsements, in bank accounts in Texas. For these crimes he received a combined sentence of 96 months and was ordered to pay restitution of $1,381.00. With his conditional plea, Scott reserved his right to appeal certain issues: whether venue in Massachusetts was improper as to the charges, and whether his motion to suppress evidence (on the same grounds as in the income tax cases, discussed below) was wrongfully denied. He also appeals the restitution order. That is appeal No. 00-1381.

In a 1998 case, a jury convicted Scott of conspiring to make and of making false claims to an agency of the United States, 18 U.S.C. §§ 286, 287 (1994). Scott filed twenty false income tax returns with the IRS for the tax year 1996 seeking tax refunds in the names of at least twelve people. He used four coconspirators to carry out the scheme, and the intended loss to the government exceeded $80,000.00. For these crimes he received sentences of 96 months for the conspiracy and 60 months for the false returns, concurrent with each other and with the sentence imposed in the 1997 case; he was also ordered to pay restitution of $37,970.68. Scott now appeals the district court's denial of his motion to suppress certain evidence, several of its evidentiary rulings, and some of its sentencing decisions. Those are appeals Nos. 99-2236, 00-1379, and 00-2350.

In a 1999 case, Scott also pled guilty to an additional and different bank fraud, 18 U.S.C. § 1344, and to conspiring to commit that fraud, 18 U.S.C. § 371 (1994). The scheme involved fraudulently obtaining bank automobile loans. For this crime he was sentenced to a 46 month sentence, consecutive to those for the earlier cases, and was ordered to pay restitution of $35,500.00. With his conditional plea, Scott reserved the right to appeal the denial of his motion to dismiss for claimed Speedy Trial Act violations and the denial of a motion to suppress evidence. He also appeals the sentence and restitution order. Those are appeals Nos. 00-1767 and 00-1669.

Several issues presented by this appeal are novel to us or worth emphasizing, and we list them in the order we discuss them:

1. In analyzing venue, we modify this Circuit's "key verb" approach in light of recent Supreme Court cases.

2. We decide that reasonable suspicion of the fraud of attempting to pass a bad check sufficient to justify an investigative stop under Terry v. Ohio does not alone amount to a suspicion that the suspect is armed and dangerous sufficient to justify a frisk.

3. We apply the inevitable discovery doctrine to a defendant whose crime

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would inevitably have been discovered from the statements of a codefendant where those statements were given before the codefendant received his Miranda warnings.

4. We uphold the admissibility of opinion testimony of a non-expert witness authenticating or identifying handwriting and discuss the relationship between Federal Rules of Evidence 701 and 901(b)(2).

5. We discuss how restitution orders in cases where two or more defendants are ordered to pay restitution for the same loss should be handled to be clear that the restitution required does not exceed the sum of the loss.

6. We hold on the facts of this case that a trial court is not in compliance with the Speedy Trial Act when it takes a motion to suppress under advisement for over 120 days, disposes of almost all matters, requests additional filings as to certain materials, and relies alone on this request for additional filings to say there was compliance with the Act.

We turn to the cases.

I. The 1997 Bank Fraud and Forged Securities Case No. 00-1381

Scott pled guilty to this offense. His conditional plea reserved the issues we discuss. A summary of the facts follows.

From April to December of 1995, Scott was employed as a paralegal at a small Boston area law firm. Knowing that Scott had a criminal record, a partner of the firm wanted to give him an opportunity to get his life straight.1 In July of that year Scott opened by mail two accounts at the USAA Federal Savings Bank in San Antonio, Texas. He soon mailed deposits to those accounts using funds that were not his.

The law firm regularly received checks payable to its clients (or to its clients and the firm) from insurance companies. Scott stole five of these checks in or around September and October of 1995. In October he deposited all five of them, with forged endorsements, into his Texas bank accounts. The stolen checks were apparently sent by mail (or the private equivalent) to the bank. Unsurprisingly, the postmarks were not kept. Scott himself appears to have forged at least one of the endorsements on the checks. At the time the checks were deposited, Scott was working at the firm and living in Massachusetts under supervised release. Under the terms of his supervised release, Scott was not to leave Massachusetts. After Scott was arrested in Natick, Massachusetts on December 5, 1995 -- we discuss the arrest, relevant to the later cases, in Part II of this opinion -- a partner of the firm visited Scott and became convinced Scott had taken the checks.

A. Venue

Scott says that venue for each of the forgery and bank fraud offenses was properly in Texas, not Massachusetts, and so his convictions should be invalidated.

We review legal conclusions de novo, Campos-Orrego v. Rivera, 175 F.3d 89, 96 (1st Cir. 1999), and give deference to the district court's factual conclusions as to venue, United States v. Ochoa, 229 F.3d 631, 636 (7th Cir. 2000). The right to be tried in the appropriate venue is one of the constitutional protections provided to defendants by the Sixth Amendment. The burden of showing proper venue is on the government, which must do so by a preponderance of the evidence. United

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States v. Lanoue, 137 F.3d 656, 661 (1st Cir. 1998). We review the evidence on venue in the light most favorable to the government. Id.

Two recent Supreme Court opinions on venue cause us to shift somewhat our prior approach to venue questions. In 1993 this Circuit endorsed the use of the "key verb" approach. United States v. Georgacarakos, 988 F.2d 1289, 1293 (1st Cir. 1993). That approach analyzed the key verbs in the statute defining the criminal offense in order to determine the scope of the relevant conduct. Id.; United States v. Tedesco, 635 F.2d 902, 905 (1st Cir. 1980). To the extent there was any suggestion in Georgacarakos that the "key verb" approach was an exclusive approach, as opposed to one helpful approach, that suggestion is now abandoned.

In 1999, the Supreme Court said that words other than the verbs used in a statutory definition of an offense also have import for venue:

[W]e have never before held, and decline to do so here, that verbs are the sole consideration in identifying the conduct that constitutes an offense. While the "verb test" certainly has value as an interpretive tool, it cannot be applied rigidly, to the exclusion of other relevant statutory language. The test unduly limits the inquiry into the nature of the offense and thereby creates a danger that certain conduct prohibited by statute will be missed.

United States v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999). Rather, the Court, as it had earlier done in United States v. Cabrales, 524 U.S. 1, 6-7 (1998), used a three part test for venue. Rodriguez-Moreno, 526 U.S. at 279-81.

Venue must be determined from the nature of the crime alleged, determined by analyzing the conduct constituting the offense, and the location (or, if the crime is a continuing one, locations) of the commission of the criminal acts. If the crime consists of distinct parts, taking place in different localities, then venue is proper wherever any part can be proved to have taken place.2 Id. That is the test we now apply.

The nature of the crime of forgery is determined by the statutory definition, which...

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