U.S. v. Segall, 87-5017

• Decision Date: 23 November 1987
• Docket Number: No. 87-5017,87-5017
• Citation: 833 F.2d 144
• Parties: 24 Fed. R. Evid. Serv. 348 UNITED STATES of America, Plaintiff-Appellee, v. Katherine J. SEGALL, a/k/a: Katherine J. Coady, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 144

833 F.2d 144

24 Fed. R. Evid. Serv. 348

UNITED STATES of America, Plaintiff-Appellee, v. Katherine J. SEGALL, a/k/a: Katherine J. Coady, Defendant-Appellant.

No. 87-5017.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1987.

Decided Nov. 23, 1987.

Luke McKissack, Hollywood, Cal., for defendant-appellant.

William Braniff, Asst. U.S. Atty., Criminal Div., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before NELSON, HALL and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Katherine J. Segall appeals her conviction on three counts of making false statements in a matter within the jurisdiction of the United States Customs Service in violation of 18 U.S.C. Sec. 1001. ¹ We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.

FACTS AND PROCEEDINGS

Segall was a customs broker in San Diego, California, licensed under 19 C.F.R. Sec. 111 to transact business on behalf of importers. During 1983 and 1984, Segall imported cement into the United States from Mexico for Cementos De Guadalajara, S.A., a Mexican corporation. The United States Department of Commerce made a preliminary determination that the price of the cement was being subsidized, and imposed $164,839.27 in countervailing duties upon Cementos to offset the subsidies. Cementos paid the duties to the United States Customs Service through Segall, its broker.

In December 1985, the International Trade Administration of the Department of Commerce determined that Cementos was entitled to a refund of the countervailing duties. On February 28, 1986, Customs liquidated the applicable Cementos entries that had been assessed duties and directed that 680 separate refund checks, totaling $173,386.78, be sent to Segall, the importer of record. Two weeks previously, Cementos had notified Segall by letter that it was expecting the refund and had instructed Segall to forward the checks to its new Customs broker, AM-MEX International. ²

In April 1986, Cementos complained to the Customs Service in San Diego that it had not received any information from Segall about the refunds. On May 12, 1986, Customs agents visited Segall's office in San Diego to inspect Segall's books on behalf of Cementos pursuant to 19 C.F.R. Sec. 111.27. The agents told Segall the purpose of their visit was to ascertain whether, and when, Segall had received the refund checks from the Customs Service. At this meeting Segall told the agents that she believed she had ninety days to make an accounting to Cementos. The agents then referred her to 19 C.F.R. Sec. 111.29 which requires the broker to account for funds received for the client from the Government within sixty days of receipt. When the agents asked Segall when she had started receiving the checks, she replied "two or three weeks" before the May 12 meeting. The agents then asked to inspect Segall's records relating to the Cementos transactions. Segall told the agents that the records were unavailable because they were in storage or out-of-date.

The agents then inquired how Segall kept track of the refund checks she had been receiving for Cementos. Segall showed the agents a copy of the Customs Notice of Liquidation Bulletin, which listed the Cementos entries that had been liquidated. Segall told the agents that she placed a check-mark next to the entry when she received a refund check. The marked entries indicated that Segall had received $6,910.30 in refunds, which Segall stated was all the refunds she had received to that point. The agents reminded Segall of her record-keeping obligations under the Customs regulations. See generally, e.g., 19 C.F.R. Sec. 111.22-.25 (1986). She requested two or three weeks to prepare her records and an accounting for Cementos.

On June 3, 1986, Customs agents again visited Segall and asked her to provide the records requested on May 12. When Segall responded that she didn't know which records were required, the agents produced a summons specifying the documents. Segall then asked one of the agents what the problem was, and the agent replied that Customs records showed that Segall had The government later discovered that between March 6, 1986 and March 19, 1986, Segall endorsed and deposited the 680 checks, totaling over $173,000, into her bank accounts in Gardena and San Diego, California. On July 31, 1986, a federal grand jury indicted Segall, charging her with three counts of violating 18 U.S.C. Sec. 1001 based on her false statements made to the Customs agents on May 12, 1986, and June 3, 1986. After a jury trial, Segall was found guilty on all three counts and was sentenced to three years imprisonment to be followed by five years probation.

received $173,000 in refunds on behalf of Cementos, but had not disbursed the funds. At that point, Segall stated that she had "received very little of the refunded duties."

DISCUSSION

On appeal, Segall raises two issues. First, she argues that the section 1001 counts are multiplicitous because one false statement is artificially divided into three counts. Second, she contends that the trial court abused its discretion in permitting the prosecution to elicit evidence that Segall had withdrawn refund monies from her bank accounts. ³

A. Multiplicity

"Multiplicity is the charging of a single offense in more than one count." United States v. Israelski, 597 F.2d 22, 24 (2d Cir.1979). "There is 'no bright line ... dividing charges comprising a single offense from those comprising separate and distinct offenses.' " United States v. Kennedy, 726 F.2d 546, 547 (9th Cir.1984) (quoting United States v. UCO Oil Co., 546 F.2d 833, 835 (9th Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977)).

In the present case, the first two counts of the indictment charge Segall with making false statements on May 12, 1986. Count One charges that she lied when she told the agents that she had only started receiving the refund checks two or three weeks prior to the May 12 meeting. Count Two charges that she lied when she told the agents that she had only received $6,910.30 in refunds as of May 12. The third count charges that Segall lied on June 3, 1986, when she informed the Customs agents that as of June 3 she had received "very little" of the $173,000 in refunds. Segall contends that the three statements are not distinct but are repeated iterations of the initial assertion. We disagree.

Although "where identical false statements ... are made in response to identical questions, the declarant may be convicted only once", United States v. Olsowy, 819 F.2d 930, 935 (9th Cir.1987), we have previously held that each nonidentical false statement made or document prepared or used may be charged as a separate violation of section 1001. UCO Oil Co., 546 F.2d at 839; see also United States v. Bennett, 702 F.2d 833, 835 (9th Cir.1983) (upholding multiple convictions for submitting subsequent documents summarizing earlier false statements).

The government argues that each of Segall's statements were separate lies that hindered the Customs Service in carrying out its regulatory responsibilities. See Gebhard v. United States, 422 F.2d 281, 289 (9th Cir.1970) (Although we found the counts multiplicitous, we stated "[i]f [the accused] in fact told separate lies, each of which could have hindered the grand jury in its investigation, then he could properly be separately charged for each lie."). On May 12, Segall told the agents that she had only started receiving the refund checks two or three weeks previously. According to the government, this false statement effectively delayed the running of the sixty-day period for accounting for the refunds, and, as a result, Customs gave Segall additional time to comply with the record-keeping requirements of 19 C.F.R. Sec. 111.22. The second false statement allegedly was also made on May 12 when Segall informed the agents that the total refunds received to that point was $6,910.30. The significance of this statement to the government was the indication that some administrative glitch prevented the 680 checks from reaching Segall within a reasonable time after they had been mailed on March 3, 1986.

We believe that the false statement concerning when the checks began coming in is separate and distinct from the false statement concerning the amount received. An offense is separate and distinct when conviction under one count "requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Kennedy, 726 F.2d 546, 547-48 (1984). Here, proof of Segall's receipt of all the checks in March would establish the falsity of her statement on May 12 that she had only started receiving the checks two to three weeks previously; whereas, proof of the total amount of checks deposited to her individual bank accounts prior to May 12 would show that she lied when she stated the total amount of...