U.S. v. Long, s. 87-5163

• Decision Date: 09 September 1988
• Docket Number: 87-5164,Nos. 87-5163,s. 87-5163
• Parties: , 27 Fed. R. Evid. Serv. 214 UNITED STATES of America, Appellee, v. Thaddeus Adonis LONG, Appellant. UNITED STATES of America, Appellee, v. Edward Larry JACKSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 436

857 F.2d 436

57 USLW 2222, 27 Fed. R. Evid. Serv. 214

UNITED STATES of America, Appellee, v. Thaddeus Adonis LONG, Appellant.

UNITED STATES of America, Appellee, v. Edward Larry JACKSON, Appellant.

Nos. 87-5163, 87-5164.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 8, 1988.

Decided Sept. 9, 1988.

Scott Tilsen, Asst. Federal Public Defender, Minneapolis, Minn., for appellant Long.

Paul Engh, Minneapolis, Minn., for appellant Jackson.

John M. Lee, Asst. U.S. Atty., Minneapolis, Minn., for U.S.

Before HEANEY and BOWMAN Circuit Judges, and FAIRCHILD, ^* Senior Circuit Judge.

HEANEY, Circuit Judge.

Thaddeus Adonis Long and Edward Larry Jackson appeal from their convictions on a number of counts for their involvement in a check forging and bank fraud scheme. We affirm their convictions on all counts.

On August 14, 1986, the United States issued a treasury check in the amount of $434,188.80, payable to Land O'Frost, an Illinois company. The check was sent to Land O'Frost but ended up in the hands of Long or Jackson. Jackson offered Dennis Mentzos $100.00 to assist him in cashing the check. Mentzos accepted.

Jackson obtained a rubber stamp with "Land O'Frost" and the signature of "James Frost" printed on it and an ID card in the name of John Turner of Thermo-Dynamics. Mentzos signed the name John D. Turner on the ID card. Mentzos and Jackson rented a telephone answering service listed under the name Thermo-Dynamics.

Using the name John D. Turner, Mentzos opened an account at Norwest Bank in downtown St. Paul and deposited $50.00. He supplied the bank with a telephone number of Thermo-Dynamics and a reference, the State Bank of St. Cloud. On the signature card, he signed the name John D. Turner. At Jackson's home in St. Paul, Jackson asked Mentzos to endorse the check with the name John D. Turner. Mentzos refused but agreed to sign a blank piece of paper. Jackson copied the signature on the back of the check and stamped the Land O'Frost endorsement on it. An acquaintance of Jackson deposited the treasury check, and the bank credited the Thermo-Dynamics account in the amount of the check.

Long flew to Minnesota from Chicago. He registered at a hotel as Mr. Kimball. On August 25, using the name Anthony Smith and posing as an executive of Thermo-Dynamics, Long bought a Porsche automobile from a dealer with a $28,000 Thermo-Dynamics check.

On August 26, Mentzos and Jackson picked up Long at his hotel. Jackson gave Long various forms of false identification in the name of Anthony Smith. They went to Norwest. Long signed the name Anthony Smith on the Thermo-Dynamics signature card and obtained a number of starter checks. Outside the bank, Mentzos signed, as John D. Turner, two of the checks. Mentzos was later paid $100 and a bonus of $400 for his help.

That same day, Long returned to Norwest and asked to cash a $16,000 check from Thermo-Dynamics payable to Irving Kimble. ¹ Long was given the amount in cash.

On August 29, while at temporary offices which he had rented, Long asked the receptionist on duty to type the name Anthony Smith under the drawer signature line of a number of blank Norwest checks. Long asked that one of those checks be made payable to Norwest Bank of St. Paul in the amount of $56,685.

Norwest subsequently began an investigation of the Thermo-Dynamics account. It discovered that the telephone number supplied by Mentzos was for a residence and that the State Bank of St. Cloud did not exist. Long went into the bank to cash the check for $56,685. After he endorsed the check before a Norwest employee, the St. Paul police arrested him. An officer searched Long's belongings and found an Illinois driver's license, a Thermo-Dynamics identification card, and a Minnesota driver's license receipt, all in the name of Anthony Smith. The police apparently arrested Jackson soon thereafter.

Jackson was indicted on seven counts: four counts of defrauding a federally insured bank, 18 U.S.C. Sec. 1344; one count of conspiring to forge and utter a treasury check, 18 U.S.C. Sec. 371; and two counts of forging and uttering a treasury check, 18 U.S.C. Sec. 510. Jackson was found guilty on all counts and sentenced to concurrent sentences of five years on the first four counts, to a consecutive sentence of five years on the fifth count, and to a consecutive sentence of five years on the sixth count. The sentence on the seventh count was suspended, and a five-year term of Long was indicted on five counts: four counts of defrauding a federally insured bank, 18 U.S.C. Sec. 1344; and one count of conspiracy to defraud the United States by forging and uttering a check, 18 U.S.C. Sec. 371. He was found guilty of all counts and was sentenced to four years for the first two counts and consecutive sentences of four years for the second two counts. The sentence on the fifth count was suspended and a term of probation, to begin after release from prison, was imposed. Thus, Long's total sentence was twelve years of imprisonment with five years of probation.

probation, to begin after Jackson's release from prison, was imposed. Thus, Jackson's total sentence was fifteen years of imprisonment with five years of probation.

Long and Jackson claim a number of errors.

A. Prior Convictions

In his testimony at trial, pursuant to a plea agreement, Mentzos explained the details of the criminal scheme. On direct examination by the government, he stated he had been convicted of two counts of fifth degree sexual assault in 1985. On cross-examination, Long's counsel asked Mentzos if he had also been convicted of third degree criminal sexual assault in 1985. He said "no." The government objected to the question. The trial judge sustained the objection and instructed the jury that "the fact of a question being asked did not imply a fact", i.e., that Mentzos was connected with the sexual assault. Counsel continued the cross-examination for about forty minutes and then requested a side bar conference.

At that conference, defense counsel pointed out that Mentzos' record of conviction, which the government had furnished the defense, stated that Mentzos had been convicted of two counts of third degree sexual assault. Mentzos explained that the record, provided by the government, was of his son (who had the same name). The mistake had been made because the birthdate was inverted to read "1946," rather than the son's correct birthdate of 1964. The defense moved for a mistrial.

The trial court denied the motion. It instructed the jury that the state court had made a record-keeping error, that the person on the stand had not committed the crime of third degree sexual assault, and that both parties had been confused by the mistake in the record.

Long claims that this mistake cost his counsel credibility before the jury. Furthermore, he asserts that the United States deliberately furnished the wrong record of conviction.

We believe the court correctly determined that the significance of the incident was reduced by the facts that the exchange concerning the conviction was brief, the side bar conference did not occur until about forty minutes after the incident, and the trial judge gave a curative instruction that the mistake was the fault of neither party. Moreover, the record does not indicate that the government intentionally attempted to mislead the defense. Although Long's counsel points out that the government asked every witness, except Mentzos, about every conviction of record, we do not believe this establishes the government intentionally misled defense counsel. We, therefore, hold the trial court did not abuse its discretion in denying the motion for a mistrial.

B. Insufficiency of the Evidence

Jackson contends that the evidence was insufficient to support the jury verdict on all counts. Long contends the evidence was insufficient to support the jury verdict on the count of conspiring to forge and utter a treasury check. A verdict must be based on substantial evidence, and we must view the evidence in the light most favorable to the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

Jackson claims he should not have been found guilty of the four counts of aiding the bank fraud because he was merely a passive participant in the scheme. The four counts involved the opening of the Thermo-Dynamics account and the depositing Jackson argues he was associated with Mentzos and Long but did not actively participate in the scheme. The evidence, however, overwhelmingly shows that Jackson was deeply and knowingly involved in the scheme to defraud Norwest. He executed many "artifices" which aided the scheme. He gave Mentzos money for the initial deposit and drove him to the bank. He stamped the stolen check with the Land O'Frost insignia which he designed. He assisted in depositing the check. He supplied Long with false identification in the name of Anthony Smith. Finally, he accompanied Long to the bank when he withdrew the $16,000.

of the $50, a check which was used as a deposit for the answering machine, the withdrawal of the $16,000 by Long (posing as Kimball), and the withdrawal of the $56,685 by Long. The pertinent section, 18 U.S.C. Sec. 1344, prohibits one from knowingly executing or attempting to execute a scheme or artifice to defraud a federally insured bank.

Jackson also claims that the evidence was insufficient to convict him of conspiring to forge and utter a treasury check. Again, contrary to his assertions, Jackson acted as more than a mere associate. See United States v. Graham, 548 F.2d 1302, 1312 (8th Cir.1977) ("[g]uilt cannot be inferred from the mere presence of a defendant at the scene of the crime or mere association with members of a criminal conspiracy"). His conduct was absolutely essential to the scheme, and the evidence shows Jackson entered the scheme knowing this.

Finally, as to the two counts of forging a government check and aiding...