U.S. v. Blakey, 91-8111

• Citation: 960 F.2d 996
• Decision Date: 20 May 1992
• Docket Number: No. 91-8111,91-8111
• Parties: 35 Fed. R. Evid. Serv. 924 UNITED STATES of America, Plaintiff-Appellee, v. Jay BLAKEY, aka: Jerry Blakey, Jay Bleckey, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 996

960 F.2d 996

35 Fed. R. Evid. Serv. 924

UNITED STATES of America, Plaintiff-Appellee, v. Jay BLAKEY, aka: Jerry Blakey, Jay Bleckey, Defendant-Appellant.

No. 91-8111.

United States Court of Appeals,

Eleventh Circuit.

May 20, 1992.

Gregory S. Smith, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.

Martin J. Weinstein, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

This case involves a check which was originally a $5.00 check but had been made to appear to be a cashier's check for $35,000 when it was deposited into an account at Citizens and Southern National Bank (C & S).

We reverse defendant Jay Blakey's two count conviction for conspiracy to defraud the bank and to possess a counterfeited and forged security under 18 U.S.C. § 371, and for aiding and abetting the possession of a counterfeited security under 18 U.S.C. § 513(a), because the trial court admitted into evidence a hearsay statement of a co-defendant which was not made in furtherance of the conspiracy.

Inasmuch as the Government is entitled to retry defendant, it is necessary to reflect that we would affirm the district court against defendant's other contentions on this appeal:

First, that the check was not counterfeited but was in fact forged, so he was entitled to a judgment of acquittal because he was not charged under the forged security statute.

Second, that the court made two evidentiary errors: (a) denial of a mistrial when a witness mentioned that a co-defendant had filed an appeal, and (b) admission of "flight" evidence testimony concerning an event that occurred three years after the check was deposited.

Third, that the court improperly denied a requested instruction on the conspiracy charge.

Fourth, that the court failed to explain why the sentence was above the sentencing guidelines range.

On March 25, 1987, the falsified check, purportedly from Ohio State Federal Savings and Loan, made payable to the American Refinance Group (ARG) was deposited into ARG's checking account at C & S. ARG was owned solely by Ronald Westmoreland and was in the business of financing the purchase and sale of low income rehabilitated residential properties. The deposit of the cashier's check was made by Ronald Townsend, the Vice President of ARG and the sole signatory on the ARG account.

Testimony was presented at trial to show that the forged check was given by defendant Jay Blakey to Westmoreland and Townsend as payment for a $15,000 debt owed by Blakey to Westmoreland. Townsend was to deposit the check into the ARG account and return the $20,000 difference to Blakey. Over the next few days, several checks totaling $18,000 were written at Westmoreland's direction and signed by Townsend. Although none of these checks were written to Blakey, they were credited against the $20,000 owed to Blakey. Additional checks were written against Westmoreland's $15,000 share of the deposit.

On March 31, 1987, C & S learned that the cashier's check was being returned. C & S immediately debited the $35,000 from the ARG account, which at that point had a positive balance of $6,697.07, yielding an overdraft of $28,302.93.

Blakey objected to the admission into evidence of a certain statement of co-defendant Westmoreland, reflected in the statements of Bobby Smith, the Assistant Vice President of Fraud Investigation at C & S. Smith testified that Westmoreland told him that Westmoreland received the $35,000 check from a Jay Blakey. ¹ Westmoreland was not called to testify.

The Federal Rules of Evidence provide that a statement is not hearsay if "[t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). Since there was sufficient evidence to establish the existence of a conspiracy and that defendant and Westmoreland were members of it, the question is whether the district court correctly ruled that the hearsay statement was in furtherance of the conspiracy.

Statements which serve a necessary part of a conspiracy by concealing it or impeding an investigation are admissible as statements made during and in furtherance of the conspiracy. United States v. Griggs, 735 F.2d 1318, 1325 (11th Cir.1984). Statements which simply implicate one coconspirator in an attempt to shift the blame from another, however, cannot be characterized as having been made to advance any objective of the conspiracy. On the contrary, statements that implicate a coconspirator, like statements that "spill the beans" concerning the conspiracy, are not admissible under Rule 801(d)(2)(E). See United States v. Posner, 764 F.2d 1535 (11th Cir.1985).

The statement made by Westmoreland implicated a Jay Blakey, the name of this defendant. The statement pointing the finger to this defendant as the source of the falsified check could hardly be considered to have advanced any object of the conspiracy. It is precisely the type of hearsay statement which cannot be admitted against a defendant. In fact, at the time the statement was made, the coconspirator had every incentive to point the finger at the defendant in order to shift the focus of the investigation away from himself.

The Government asserts that Westmoreland's statement is admissible under Rule 801(d)(2)(E) because it is an attempt not to implicate a coconspirator, but to mislead the investigation. The argument is based on the testimony of Smith that he subsequently received an incorrect Las Vegas phone number for Blakey from Townsend, the signatory on the account into which the check was deposited. Although a Jay Blakey resided at that number, it was not the Blakey who is the accused before us. ² The Government argues that Westmoreland's statement is admissible because when combined with Townsend's statement, it shows an attempt to mislead.

There is no evidence in the record, however, that Westmoreland knew any Jay Blakey other than the defendant. Nor is there any evidence that Townsend was something other than mistaken as to Blakey's telephone number. That there was another Jay Blakey in Las Vegas is not shown to have been known by Westmoreland. Westmoreland's statement cannot be rendered admissible as part of a combined effort to mislead without a stronger evidentiary showing that the statement was made to mislead the investigation and to cover up the conspiracy. This testimony violated defendant's constitutional right to be confronted with the witnesses against him. His conviction must be reversed.

It is necessary that we rule on Blakey's other contentions in the event of a new trial.

Counterfeit or Forged

The check at issue in this case originated as a $5.00 check drawn in 1983 on the Ohio State Federal Savings and Loan Association. By the time the check was deposited at C & S, it had been transformed into a cashier's check for $35,000 with a falsified 1987 date and authorizing signature.

Blakey was charged with aiding and abetting the possession of a counterfeited security in violation of 18 U.S.C. § 513. Blakey asserts that the check was not counterfeit as defined by § 513, but was forged and therefore he was convicted of a crime for which he was not charged. He contends this instrument was "forged" because it was an alteration of an originally valid check, and therefore, not falsely made in its entirety and so not covered by the counterfeit statute.

18 U.S.C. § 513 defines counterfeit as "a document that purports to be genuine but is not, because it has been falsely made or manufactured in its entirety." 18 U.S.C. § 513(c)(1). Forged instruments also are covered by this statute, and are defined in § 513(c)(2) as documents that purport to be genuine but are not because they have been "falsely altered, completed, signed, or endorsed, or contain[ ] a false addition thereto or assertion therein...."

The meaning of "falsely made" within the context of 18 U.S.C. § 2314 (relating to interstate transportation of falsely made securities) has been settled by the Supreme Court in Moskal v. United States, --- U.S. ----, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990). The petitioner in Moskal was convicted for receiving falsely made securities in violation of § 2314. He challenged his conviction, asserting that although the motor vehicle titles he received contained false mileage figures, they were genuinely issued titles that merely incorporated false information. The Moskal Court held that genuine documents which contain false or incorrect information are "falsely made" for purposes of § 2314.

The Moskal Court did not specifically address the distinction between forged and counterfeit securities. The holding of that case is relevant nonetheless, because 18 U.S.C. § 513(c)(1) includes the term "falsely made" within the definition of counterfeit. Unlike § 2314, however, § 513 further restricts counterfeit to a document that is falsely made "in its entirety". In spite of this restriction, the altered document here falls within the statute because all of the essential information was falsified. In light of the Moskal holding and the extensive alterations which were made to the check, we conclude that the check was counterfeit as defined by § 513(c)(1). The defendant's attempt to distinguish between documents which were originally genuine and those which were not is inconsistent with the general purpose of the statute.

Mention of Co-Defendant's Appeal

The district court denied a motion for mistrial based on testimony regarding the conviction of coconspirator Ron Westmoreland. One of the Government's witnesses stated during his testimony that "Ron was on an appeal on this case." The district court had granted defendant's motion in limine for exclusion of such evidence. Blakey argues that he is...