U.S. v. Mundi, 87-1289

• Decision Date: 21 December 1989
• Docket Number: No. 87-1289,87-1289
• Citation: 892 F.2d 817
• Parties: 29 Fed. R. Evid. Serv. 323 UNITED STATES of America, Plaintiff-Appellee, v. Kuldip Singh MUNDI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 817

892 F.2d 817

29 Fed. R. Evid. Serv. 323

UNITED STATES of America, Plaintiff-Appellee, v. Kuldip Singh MUNDI, Defendant-Appellant.

No. 87-1289.

United States Court of Appeals, Ninth Circuit.

Argued April 6, 1989.

Submitted June 6, 1989.

Decided Dec. 21, 1989.

Michael T. Kenney, Albert A. Newton, Santa Ana, Cal., for defendant-appellant.

Joseph P. Russoniello, Sanford Svetcov, Dept. of Justice, U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges.

REINHARDT, Circuit Judge:

Kuldip Singh Mundi appeals his convictions for twenty-five counts of wire fraud, one count of selling stolen property and one count of conspiracy. The charges stem from a complex scheme, allegedly devised and executed by Mundi, in which he performed unauthorized and fraudulent exchanges of airline tickets purchased in Nigeria for tickets on airlines operating in the United States. He raises a number of objections to the proceedings below. We have considered each and affirm his convictions, except as to one count.

A. The McNally Claim

Mundi claims first that the district court's instructions to the jury on the wire fraud counts failed to conform to the standard established by McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), and Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). ¹ We review a claim of error in a jury instruction by looking to "the adequacy of the entire charge ... in the context of the whole trial." United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir.1984). We review de novo the question whether the instructions correctly explained the law and the elements of fraud. United States v. Stenberg, 803 F.2d 422, 433 (9th Cir.1987).

Considering the fraud instructions as a whole, we note first that there is some language which might imply that the jury could convict Mundi even if it found that his scheme had not been intended to cause anyone a deprivation of money or property. A conviction based upon such a finding would violate McNally. See 483 U.S. at 356, 107 S.Ct. at 2879. We are aware that the district judge said at one point that a "scheme to defraud normally contemplates ... a disadvantage to the defrauded person" and that the injury in this case "could be" the airlines' loss of payment or delay in payment on the tickets Mundi exchanged. Nonetheless, we conclude that the entire instruction rendered it impossible for the jury to convict Mundi without actually finding that he had deprived the airlines of money or property. The court's description of the elements of fraud left no doubt that a verdict of guilty could not be returned unless the jury found that Mundi had "acted to carry out the scheme with the intention of obtaining money or property by carrying out the scheme to defraud."

Moreover, in analyzing a claim of error in jury instructions, we may look beyond the instructions themselves and examine the indictment and the entire trial in context. Marabelles, 724 F.2d at 1382; see also United States v. Park, 421 U.S. 658, 674-75, 95 S.Ct. 1903, 1912-13, 44 L.Ed.2d 489 (1975); United States v. Perholtz, 836 F.2d 554, 559 (D.C.Cir.1987). In this case, it is clear from the indictment, as well as from the manner in which the purportedly fraudulent scheme was presented at trial, that the scheme alleged was that Mundi defrauded the airlines of "money or property." The indictment alleged, for example, that Mundi "did devise and intend to devise a scheme and artifice to defraud and deceive in the obtaining of money or things of value ² by means of false and fraudulent pretenses ...," that he fraudulently obtained air coupons, and that he exchanged altered multiple-page air coupons or invalid coupons for values greater than they were worth.

Furthermore, testimony of airline officials described with some detail how such exchange schemes as those Mundi was accused of operating deprive the airlines of money and property. These officials identified several means by which the airlines are injured in these schemes--through delayed payments, overpayments to other airlines, underpayments from other airlines, and negotiated settlements with other airlines that result in a particular airline receiving less than the full value of the tickets issued by the travel agencies participating in these schemes.

These facts, coupled with the fact that the court's instructions specifically required the jury to find that Mundi had deprived someone of money or property, are sufficient to cause us to reject the argument that the fraud instructions were insufficient under McNally.

B. The "Directed Verdict" Instruction

Mundi next challenges a portion of the trial court's instruction in which, after describing the system through which the airlines exchange tickets, the court allegedly stated that disruption of the system automatically constituted fraud. Mundi claims this instruction amounted to a partial directed verdict in favor of the government, a practice proscribed in criminal prosecutions. See United States v. Goetz, 746 F.2d 705, 708 (11th Cir.1984).

Mundi's argument is incorrect. Applying the type of review we described supra in Part A to the relevant portions of the court's instructions, we conclude that the district judge did not take any part of the case from the jury. First, the court instructed the jurors in general terms that it was their views and their "recollection of the evidence" that mattered, not the court's own. Second and more important, upon Mundi's objection to the portion of the instruction upon which he now relies for his claim of error, the court clarified its instruction, telling the jurors specifically that "all the facts [we]re for [them] to decide," and that they had to determine for themselves "what the scheme was, if there was any scheme; what the advantages [to Mundi] would be on the one hand and the disadvantages [to the airlines] on the other." Finally, the court gave extensive and explicit instructions concerning Mundi's defense theories.

It is thus clear from the record that the court did not direct a verdict in favor of the government, in whole or in part, and indeed carefully preserved all factual issues for determination by the proper finder of fact, in this case, the jury.

C. The Admission of Evidence of Other Schemes

Mundi's original indictment alleged that his scheme involved eleven travel agencies; the superseding indictment under which he was ultimately tried named only one agency specifically although, as the government correctly notes, it did speak of Mundi's scheme in terms that indicated a far wider scope of operations. At Mundi's trial, and over his objection, the court allowed testimony which named several travel agencies not specifically mentioned in the indictment, and which discussed Mundi's scheme with respect to them. Mundi now claims that the court erred in admitting this evidence, inasmuch as the evidence was irrelevant and prejudicial, and deprived him of his "substantial right to be tried only on charges presented in an indictment returned by a grand jury." United States v. Miller, 471 U.S. 130, 140, 105 S.Ct. 1811, 1817, 85 L.Ed.2d 99 (1985). ³

We review de novo the question whether the evidence concerning the travel agencies not specifically named in the indictment was "other crimes" evidence beyond the scope of the indictment and admissible only in limited circumstances under Fed.R.Evid. 404(b). See United States v. Soliman, 813 F.2d 277, 278 (9th Cir.1987). A trial court's decision to admit evidence is reviewed for an abuse of discretion. Id.

We agree with the government that the trial court did not err in admitting this evidence. Mundi himself admitted that his scheme involved a number of travel agencies; similarly, his indictment alleged that he exchanged tickets with "travel agents in the United States." In light of these facts, we think the government correct in its assertion that the evidence it presented was "inextricably intertwined" with, and "part of the same transaction" as, the conduct alleged in the indictment. See Soliman, 813 F.2d at 279 ("[e]vidence should not be treated as 'other crimes' evidence when 'the evidence concerning the ["other"] act and the evidence concerning the crime charged are inextricably intertwined' ") (quoting United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979)). Alternatively, since Mundi's defense largely concerned his lack of criminal intent, the evidence was admissible to show intent under Rule 404(b). See Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988); United States v. Faust, 850 F.2d 575, 584-85 (9th Cir.1988); Soliman, 813 F.2d at 279.

The district court did not abuse its discretion in admitting the evidence concerning other travel agencies.

D. The Sufficiency of the Evidence

Mundi's final contentions on appeal concern the sufficiency of the evidence on which the jury convicted him. Mundi twice moved for judgments of acquittal under Fed.R.Crim.P. 29, alleging the government's evidence to be insufficient. Both motions were denied. We review the denial of the Rule 29 motions and Mundi's challenge to the sufficiency of the evidence under the same standard, assessing whether,...