United States v. Marston

Citation694 F.3d 131
Decision Date20 September 2012
Docket NumberNo. 11–2100.,11–2100.
PartiesUNITED STATES of America, Appellee, v. Ramie MARSTON, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

694 F.3d 131

UNITED STATES of America, Appellee,
v.
Ramie MARSTON, Defendant, Appellant.

No. 11–2100.

United States Court of Appeals,
First Circuit.

Heard Aug. 2, 2012.
Decided Sept. 20, 2012.


[694 F.3d 132]


Behzad Mirhashem, Federal Defender Office, for appellant.

Seth R. Aframe, Assistant United States Attorney, with whom John P. Kacavas, United States Attorney, was on brief for appellee.


Before BOUDIN, HAWKINS * and DYK, Circuit Judges.

BOUDIN, Circuit Judge.

Ramie Marston appeals her convictions, after a jury trial, for two counts of bankruptcy fraud. The convictions stemmed from a pro se petition for bankruptcy that Marston filed in March 2009 under Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. (2006). The prosecution alleged that Marston failed to include in the petition information related to her past fraudulent use of credit cards that she obtained under the names of two acquaintances—Susan Blake and Kristy Kromer.

A debtor who files such a bankruptcy petition has to identify “All Other Names used by the Debtor in the last 8 years (include married, maiden, and trade names).” Marston wrote “Marston, Robbi” in answer to that question, but she did not mention the names of Susan Blake or Kristy Kromer. She then signed under penalty of perjury that the information she provided in the petition was “true and correct.”

A debtor must also identify creditors of different classes in separate schedules. In Schedule E, which asks for all creditors with unsecured priority claims, Marston listed Susan Blake as holding a $50,000 claim incurred on February 3, 2009, of which $46,000 was entitled to priority. In Schedule F, which asks for all creditors holding unsecured nonpriority claims, Marston listed Susan Blake as holding a disputed $50,000 claim incurred on September 22, 2007. Marston made no reference to the credit card issuers that had issued the cards in Susan Blake's name. Again, Marston's signature under penalty of perjury represented that the information in the schedules was “true and correct to the best of my knowledge, information, and belief.”

Eventually, the petition was dismissed on Marston's own motion after the United States Trustee challenged her right to a discharge. On April 27, 2011, Marston was charged with five counts of bankruptcy fraud, 18 U.S.C. § 152, each count alleging that she had made a false statement in her application or schedule. The two counts ultimately submitted to the jury alleged as follows:

[694 F.3d 133]

—Count One: that Marston had used the names Kristy Kromer and Susan Blake but knowingly and fraudulently failed to disclose this as required in the petition.

—Court Four: that Marston knowingly and fraudulently failed and refused to disclose debts to Bank of America, BMW Bank of North America, and American Express.

The government's theory as to the first count was that Marston had used the names of her two friends, Blake and Kromer, in credit card applications without their approval in order to secure cards with which Marston then made unauthorized purchases in their names; as to the fourth count, its theory was that the credit card issuers had claims against Marston for purchases made with those accounts. The jury convicted on both counts and Marston was ultimately sentenced to concurrent terms of 37 months imprisonment and three years supervised release for each count, as well as a statutory $100 special assessment imposed separately for each count.

Marston now appeals, contending that the evidence was insufficient for a reasonable jury to convict on either count. In the course of her Rule 29 motion at trial, Marston made a general objection to the adequacy of the evidence and also pointed to certain specific concerns about the evidence of materiality and mens rea.1 Following the Rule 29 motion, the district court conducted a detailed analysis of those concerns as well as of the evidence of falsity, and then denied the motion.

A false oath conviction under 18 U.S.C. § 152(2) requires the government to prove (1) the existence of a bankruptcy proceeding; (2) that the defendant made a false statement in that proceeding under penalty of perjury; (3) that the false statement concerned a material fact; and (4) that the defendant made the false statement knowingly and fraudulently. United States v. Cutter, 313 F.3d 1, 4 n. 4 (1st Cir.2002). See also Metheany v. United States, 390 F.2d 559, 561 (9th Cir.), cert. denied,393 U.S. 824, 89 S.Ct. 81, 21 L.Ed.2d 94 (1968) (same elements restated under five headings).

Although Marston now attacks the adequacy of the evidence in several different ways, she does not deny that she fraudulently secured credit cards by listing her friends, without their permission, as the applicants or co-applicants and that she made purchases with those accounts. The government offered substantial evidence of the unauthorized applications, issuance of the cards, and Marston's use of them to make purchases; and we review the evidence in the light most favorable to the government. United States v. Troy, 583 F.3d 20, 24 (1st Cir.2009).

Marston apparently met Kristy Kromer while both women were working at an insurance agency in Nevada. Kromer thereafter discovered, among other things, that a Chase Visa card had been taken out in her name with an address corresponding to Marston's residence in Henderson, Nevada and that a Certegy loan credit card had been issued under her name with Marston listed as the co-borrower. A later search of Marston's home in New Hampshire revealed that several other credit cards had also been opened in Kromer's name but mailed to Marston's addresses in Nevada and New Hampshire.

[694 F.3d 134]

The evidence as to Susan Blake is more circumscribed because the government, instead of presenting a full scale case, accepted a stipulation in which Marston admitted inter alia that she had possessed credit cards bearing the names of both Marston and Blake, that she made purchases with those cards never authorized by Blake, and that the “fraudulent liabilities incurred in Blake's name by Marston totaled approximately $61,545.” Specific credit card issuers were identified in the stipulation, including the ones named in the indictment on Count Four.

Although appellate review of preserved sufficiency claims is de novo, albeit taking the evidence in the light most favorable to the verdict, the government argues that several of Marston's objections were not specifically identified in the Rule 29 motion so that their review should be only for “ ‘clear and gross' injustice.” United States v. Upham, 168 F.3d 532, 537 (1st Cir.), cert. denied,527 U.S. 1011, 119 S.Ct. 2353, 144 L.Ed.2d 249 (1999) (quoting United States v. Greenleaf, 692 F.2d 182, 185 (1st Cir.1982)). The law as to preserving sufficiency claims differs somewhat from the requirements for most objections.

In most circuits, the rule is that a general challenge to the adequacy of the evidence preserves for de novo review “the full range of challenges, whether stated or unstated,” United States v. Hammoude, 51 F.3d 288, 291 (D.C.Cir.), cert. denied,515 U.S. 1128, 115 S.Ct. 2290, 132 L.Ed.2d 291 (1995),2 and we have suggested that the same rule applies in this circuit as well. See Slater v. United States 562 F.2d 58, 59 (1st Cir.1976). By contrast, when a defendant chooses only to give specific grounds for a Rule 29 motion, all grounds not specified are considered waived and are reviewed under Upham's less forgiving “clear and gross injustice” standard. See United States v. Pena–Lora, 225 F.3d 17, 26 n. 5 (1st Cir.2000), cert. denied,537 U.S. 877, 123 S.Ct. 292, 154 L.Ed.2d 131 (2002); United States v. Belardo–Quinones, 71 F.3d 941, 945 (1st Cir.1995).

Marston's Rule 29 motion could be viewed as straddling both of these categories. Her counsel began with what taken alone is purely a general objection to the government's evidence:

Pursuant to Rule 29 of the Federal Rules of Criminal Procedure, I respectively move that Counts 1, 2, 3 and 4 be subjected to a directed verdict of acquittal on the grounds that the government has failed to meet its constitutional obligation to prove each of the essential elements beyond a reasonable doubt.

But the situation is slightly muddied because Marston's counsel continued with specific objections relating both to scienter and materiality without making clear that these were merely illustrative and without mentioning the other attacks now made on appeal:


The essential element that I submit that they have not proved beyond a reasonable doubt, the one I want to focus on, is the obligation that they have first to show that my client's conduct as alleged in each of those four counts was knowing and fraudulent, and secondly, their obligation to prove that the omissions ... in my client's bankruptcy petition

[694 F.3d 135]

were material ... and for those reasons I move for directed verdict of acquittal.

Again, standing alone, this language seems to express specific objections to the government's evidence that would constitute a waiver of all unspecified challenges.


There is good reason in case of doubt to treat an ambiguous motion like this one as “general” in the sense that it preserves all grounds. It is helpful to the trial judge to have specific concerns explained even where a general motion is made; and to penalize the giving of examples, which might be understood as abandoning all other grounds, discourages defense counsel from doing so and also creates a trap for the unwary defense lawyer. The tendency would be to encourage general objections without examples.

This situation arises only because general objections are permissible on Rule 29 motions. Ordinarily, the law calls on counsel to make specific objections which state the grounds for or scope of the...

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    ...that there was a "clear and gross injustice," United States v. Morel, 885 F.3d 17, 22 (1st Cir. 2018) (quoting United States v. Marston, 694 F.3d 131, 134 (1st Cir. 2012) ), which means that he must show at a minimum that the evidence was plainly insufficient to support the conviction, Unit......
  • United States v. Lyons
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    • January 17, 2014
    ...suggested that a defendant who raises only specific sufficiency arguments waives all those he does not make. See United States v. Marston, 694 F.3d 131, 134 (1st Cir.2012) (collecting cases for both propositions). We have not decided what happens when a general sufficiency objection is acco......
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    • November 4, 2019
    ...Cir. 2015) ("[A] general sufficiency-of-the-evidence objection preserves all possible sufficiency arguments."); United States v. Marston, 694 F.3d 131, 135 (1st Cir. 2012) ("There is good reason in case of doubt to treat an ambiguous [ Rule 29 ] motion ... as ‘general’ in the sense that it ......
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    ..., 818 F.3d 651, 663-64 (11th Cir. 2016).28 See United States v. Porter , 886 F.3d 562, 566 (6th Cir. 2018) ; United States v. Marston , 694 F.3d 131, 134 (1st Cir. 2012) ; United States v. Hosseini , 679 F.3d 544, 550 (7th Cir. 2012) ; United States v. Graf , 610 F.3d 1148, 1166 (9th Cir. 2......
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3 books & journal articles
  • Fraud
    • United States
    • James Publishing Practical Law Books Criminal Defense Victories in the Federal Circuits
    • March 30, 2014
    ...§6:02 A Fuzzy Stipulation Vacates a Conviction in a Bankruptcy Fraud Trial in the First Circuit Court of Appeals United States v. Marston, 694 F.3d 131 (1st Cir. 2012) Perhaps Ramie Marston was confused? She filed for bankruptcy on her own—without a lawyer. When you file for bankruptcy, you......
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    • March 30, 2014
    ..., 648 F.3d 1001 (9th Cir. 2011), §10:16 United States v. Marquez , 699 F.3d 556 (1st Cir. 2012), §4:45 United States v. Marston , 694 F.3d 131 (1st Cir. 2012), §§3:36, 6:02 United States v. Mathurin , 690 F.3d 1236 (11th Cir. 2012), §10:11 United States v. May , 706 F.3d 1209 (9th Cir. 2013......
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    • March 30, 2014
    ...§3:36 A Fuzzy Stipulation Vacates a Conviction in a Bankruptcy Fraud Trial in the First Circuit Court of Appeals United States v. Marston, 694 F.3d 131 (1st Cir. 2012) Perhaps Ramie Marston was confused? She filed for bankruptcy on her own—without a lawyer. When you file for bankruptcy, you......

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