U.S. v. Dockray

Decision Date19 July 1991
Docket NumberNo. 90-2224,90-2224
Citation943 F.2d 152
PartiesUNITED STATES of America, Appellee, v. Edward E. DOCKRAY, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Eugene V. Mollicone, Cranston, R.I., with whom William A. Dimitri, Jr., and Dimitri & Dimitri, Providence, R.I., were on brief, for defendant, appellant.

Seymour Posner, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., and Margaret E. Curran, Asst. U.S. Atty., Providence, R.I., were on brief, for appellee.

Before TORRUELLA, Circuit Judge, and BOWNES and HILL *, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

A type of electronic bulletin board known as a white board formed the centerpiece of a money-making scheme embarked upon by appellant Edward E. Dockray and his coventurer Raymond Pollard. Doing business as Independent Leasing Corporation ("ILC"), Dockray and Pollard worked with brokers to market their program in Massachusetts, Rhode Island, Connecticut, New Hampshire, California and Utah. Investors were told that for each $5,000 block invested, ILC would purchase one white board in the investor's name. ILC would then lease the board from the investor, and would rent out the board to the ultimate user--a hotel or convention center, for example.

ILC promised its investors that, after a three month delay during which ILC would buy and place the white board, they would receive $200 monthly payments for 48 months as a return on each $5,000 block. At the end of 48 months, ILC would buy back the investor's remaining interest in the board for $400. In this manner each investor would receive a total return of $10,000 on a $5,000 investment, over four years.

ILC also told its investors that it would arrange for a guaranty of their return on investment. The agreement between ILC and the guarantor company, negotiated by Dockray, required ILC to pay a premium for each white board investment sold and to furnish the guarantor with the name and address of each investor, and the serial number and location of each investor's white board.

It appears that ILC sold 287 white board investments to 114 investors, for a total of over $1,421,000. The company purchased a mere five white boards. Only 105 of the 287 investments were insured, and neither the serial numbers nor the locations of any white boards were furnished to the guarantor.

The ILC white board investors did not receive their promised rewards, but ILC's promoters did quite well. Dockray and Pollard diverted over $378,132 of the investors' money to Dockray for Dockray's benefit. In addition to receiving some cash outright, Dockray also used the diverted funds to purchase real estate ($89,950), pay personal brokerage debts ($62,040), buy an automobile, and make loans to friends.

On the basis of this evidence, the government secured an indictment charging Dockray and Pollard with one count of conspiracy to commit mail and wire fraud, 18 U.S.C. § 371, twelve counts of mail fraud, 18 U.S.C. § 1341, and twelve counts of wire fraud, 18 U.S.C. § 1343. Pollard pled guilty; as part of his plea bargain he agreed to testify against Dockray. Dockray stood trial and was ultimately convicted of 21 of the 25 counts. He now asks this court to review three asserted errors in the proceedings.

Good Faith Instruction

Dockray's defense theory was that at all times during his involvement with ILC he acted in good faith, without any intent to defraud. He introduced evidence relevant to this defense and asked the court to give a specific good faith instruction. 1 The judge refused to give the requested charge; he stated that it sufficed to instruct the jury that the government must prove each element of the crime, including intent to defraud, beyond a reasonable doubt. The instruction delivered by the court contained a thorough explanation of intent to defraud, but did not use the words "good faith." 2

In so ruling the court followed the law in this circuit. Jury instructions are to be evaluated in the context of the charge as a whole, and a defendant has no absolute right to the use of particular language. United States v. Nivica, 887 F.2d 1110, 1124 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). Although good faith is an absolute defense to a charge of mail or wire fraud, the court need only convey the substance of the theory to the jury. New England Enterprises, Inc. v. United States, 400 F.2d 58, 71 (1st Cir.1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969). "There is nothing so important about the words 'good faith' that their underlying meaning cannot otherwise be conveyed." Id. Thus, where the court properly instructs the jury on the element of intent to defraud--essentially the opposite of good faith--a separate instruction on good faith is not required.

Appellant acknowledges the New England Enterprises precedent, a concession which would foreclose his appeal but for his request that we follow instead a short line of cases emanating from the Eighth and Tenth Circuits. Those courts have held "that, where the charge makes no mention of good faith, a standard instruction on specific intent is insufficient to submit the substance of the defense to the jury." Nivica, 887 F.2d at 1124. See United States v. Casperson, 773 F.2d 216 (8th Cir.1985); United States v. Hopkins, 744 F.2d 716 (10th Cir.1984) (en banc ). The Supreme Court has recognized the conflict among the courts of appeals, but has not resolved it. See Green v. United States, 474 U.S. 925, 925, 106 S.Ct. 259, 260, 88 L.Ed.2d 266 (1985) (White, J., dissenting from the denial of certiorari).

We decline appellant's invitation to depart from our own case law for several reasons. To begin with, we recently considered and rejected the same request. See Nivica, 887 F.2d at 1124-25. Thus, the First Circuit position is not the antique that appellant would have us believe, but a doctrine of some vitality. Moreover, the reasons outlined in Nivica remain persuasive. It is still true that jury instructions are to be evaluated as a whole. Id. at 1125. Our rule on the good faith instruction is still the majority position. Id. Indeed, several recent cases adopting it can be added to those listed in Nivica, id. See United States v. McElroy, 910 F.2d 1016, 1026 (2d Cir.1990); United States v. Dorotich, 900 F.2d 192, 193-94 (9th Cir.1990); United States v. Rochester, 898 F.2d 971, 978-79 (5th Cir.1990). If there is a discernible trend on this issue, it seems to be moving against appellant. The Fifth Circuit formerly required a specific good faith instruction whenever warranted by the facts, but more recent cases have rejected this per se rule. See United States v. Hunt, 794 F.2d 1095, 1098 (5th Cir.1986) (abrogating United States v. Fowler, 735 F.2d 823 (5th Cir.1984), and United States v. Goss, 650 F.2d 1336 (5th Cir.1981)). 3 Finally, absent en banc consideration we are bound by our own precedent. Nivica, 887 F.2d at 1125. For all these reasons, we adhere to the law as it stands in this circuit.

It is true that appellant's case is distinguishable from Nivica in that the Nivica jury charge contained the precise words "good faith," absent from the charge delivered below. But that distinction does not call for a different result. As noted in Nivica, specific mention of "good faith" is not mandated. See 887 F.2d at 1124 n. 11. It is integral only that "the essence of the defense" be communicated to the jury. Id. And we think that the jury charge here accomplished that goal.

As a final note, appellant asserted at oral argument that he should prevail based on Cheek v. United States, --- U.S. ----, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991). Considering the alleged significance of the case, which was decided in January 1991, we find it odd that appellant's brief failed to reference it. Cheek construed the word "willfully" in the tax evasion statute, 26 U.S.C. §§ 7201, 7203, and concluded that a good faith misunderstanding of the tax law need not be objectively reasonable to serve as a complete defense. 111 S.Ct. at 611. We do not find Cheek controlling for two reasons. First, the willfullness requirement in tax evasion serves a function unique in criminal law: it makes ignorance of the law a defense. Id. at 609. Thus it is not synonymous with the intent to defraud requirement in the mail and wire fraud statutes. Second, the issue in Cheek was whether or not the good faith defense must be objectively reasonable. The issue here is not the components of a good faith defense, but whether the existence of such a defense had been adequately conveyed to the jury. Cheek did not touch this point.

Improper Vouching

Raymond Pollard appeared as the government's chief witness. His plea agreement was introduced as evidence. The following colloquy occurred at the end of direct examination:

Q: Mr. Pollard, are you telling the jury and this court the truth about these events and circumstances today?

A: Absolutely.

Q: As best you recall them?

A: As best I can recall them, yes.

Q: Did I or the government tell you how to testify or answer any of the questions put to you by me?

A: Other than tell the absolute truth.

During closing argument the prosecutor commented on Pollard's testimony:

Mr. Pollard testified before you and told you that he pled guilty to these charges on September 5 before Judge Lagueux, under an agreement that he would cooperate by testifying in this case, and the only thing he was asked to do by the Government, he told you, was to testify truthfully. And that cooperation, in other words, his testimony would be brought to the court's attention. That's already been done, ladies and gentlemen. By testifying here, Judge Lagueux has seen this man and has evaluated his testimony and his cooperation, and that will be considered by Judge Lagueux at the time of sentencing, and the government agreed that it would take that in consideration when it made a...

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