943 F.2d 152 (1st Cir. 1991), 90-2224, United States v. Dockray

Docket Nº:90-2224.
Citation:943 F.2d 152
Party Name:UNITED STATES of America, Appellee, v. Edward E. DOCKRAY, Defendant, Appellant.
Case Date:September 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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943 F.2d 152 (1st Cir. 1991)

UNITED STATES of America, Appellee,


Edward E. DOCKRAY, Defendant, Appellant.

No. 90-2224.

United States Court of Appeals, First Circuit

September 5, 1991

        Heard July 19, 1991.

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        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

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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, ---

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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....

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