U.S. v. Dees

Decision Date01 September 1994
Docket NumberNo. 93-50282,93-50282
Citation34 F.3d 838
Parties40 Fed. R. Evid. Serv. 993 UNITED STATES of America, Plaintiff-Appellee, v. Leanne DEES, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Jerry L. Newton, Newton and Newton, Hermosa Beach, CA, for defendant-appellant.

Alka Sagar, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

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

Before: WALLACE, Chief Judge, and FARRIS and KLEINFELD, Circuit Judges.

FARRIS, Circuit Judge:

Leanne Dees appeals her jury conviction for mail and wire fraud in violation of 18 U.S.C. Secs. 1341 and 1343. We have jurisdiction over defendant's timely appeal pursuant to 28 U.S.C. Sec. 1291. We affirm.

I.

On January 13, 1989, Dees responded to an advertisement in a local Arkansas newspaper placed by Carolyn Burtch, a California resident hoping to privately adopt a child. Dees identified herself as Karen New. Dees made an arrangement with the Burtches pursuant to which she would receive $400 per month for living expenses during her pregnancy. In return, Dees agreed to place her baby for adoption with the Burtches.

Between February and May of 1989, the Burtches regularly contacted Dees and provided her with the requisite living expenses. The Burtches testified that they had no doubt that they would be adopting Dees's baby. Dees often referred to the baby she carried as "Carolyn's baby."

Nevertheless, in late March 1989, an attorney in Arkansas, Jerry Lovelace, was contacted by attorney Danny Stidham. Stidham identified himself as the representative of Leanne Dees and her husband Frank. Stidham said his clients were eager to place their unborn child up for adoption and desired Lovelace's assistance. On April 21, 1989, Stidham informed Lovelace that his clients had not eaten in the last two days and therefore needed an arrangement signed as soon as possible. On May 8, 1989, the Dees signed an "intent to adopt agreement" pursuant to which Lovelace's clients would pay $400 per month in living expenses for Dees and Dees would place her unborn child for adoption with Lovelace's clients.

On May 14, 1989, Dees telephoned Burtch to wish her a Happy Mother's Day. She did not indicate that her plans to place the unborn baby for adoption with the Burtches had changed. Dees also did not mention her arrangement with Lovelace's clients. This conversation was charged as count ten of the indictment (for which she was convicted). It was around this time that Carolyn Burtch began to discuss the possibility of adopting a second child at the same time as Dees's child. Dees apparently did not voice any protests to this proposal at that time.

On May 29, 1989, Dees called Burtch and told her that she and her husband wished to move to Nevada in order to be closer to the Burtches. Dees told Burtch that she needed money and, the next day, Burtch wired $200 to Arkansas. This wire transfer of funds was charged as count six of the indictment (for which she was convicted). On May 31, 1989, Jerry Lovelace gave Dees a check in the amount of $400 for living expenses for the month of June. Lovelace never had any further contact with Dees, Dees's husband, or Stidham, Dees's attorney.

During the first week of June, Dees called Carolyn Burtch and told her she was en route to Las Vegas. Burtch wired additional funds to the Dees. On June 21, 1989, Dees informed Burtch that she was in need of additional funds. Burtch wired $100 to Dees. Burtch was not contacted by Dees again.

Lovelace attempted to contact Dees and found a discarded box outside of her vacant apartment. Included in the box was Carolyn Burtch's telephone number. Lovelace contacted Burtch in California.

In August, 1989, Burtch discovered that Dees, whom she had known as "Karen New," was staying at the Heritage Hotel in Sherman Oaks, California. Burtch visited Dees and Dees told Burtch that she had been under the impression that the Burtches had lost interest in her baby because they had not sent her additional funds. Dees told Burtch that another couple would be adopting her baby. This was the first time that Dees informed Burtch that she had changed her mind. The baby was born on September 11, 1989 with Down's Syndrome. The baby was not adopted by either couple.

On June 2, 1990, Dees telephoned Debbie Freeman, a resident of Los Angeles, California and told her that she was living in Las Vegas and was five months pregnant. The call was in response to an advertisement placed in an Arkansas newspaper. Dees told Freeman that she was interested in having the baby in Los Angeles with the same doctor who had delivered her previous baby. The next day, Dees phoned Freeman and told her that she was destitute, homeless and hungry. Freeman wired funds to Dees in order to pay the hotel bill in Las Vegas and provide her with sufficient funds to travel with her child to Los Angeles and eat. This wire transfer was charged as count seven of the indictment (for which Dees was convicted).

Freeman and her lawyer, Randi Barrow, accompanied Dees on a trip to the doctor who revealed that Dees was actually only three months pregnant (not five). Afterward, Dees and Freeman signed agreements which provided that Dees intended to place her unborn child for adoption and that, in return, Freeman would pay rent for the Dees's as well as cover all medical expenses. In addition, Freeman would provide Dees $125 per week until August 1990, at which point Dees would cover half of her expenses.

Between July and November 1, 1990, Freeman's attorney mailed checks for the rent while Freeman herself accompanied Dees in her visits to the doctor. Barrow's November 1, 1990 mailing was the basis for count five of the indictment (for which Dees was convicted). Freeman also provided Dees with living expenses, as was previously arranged. However after August, 1990 when it became apparent that the Dees's would not be able to pay their share of the expenses, Freeman voluntarily paid for all of the Dees's expenses.

As of June, 1990, Dees began to have some doubts about her relationship with Freeman although she never voiced those doubts to Freeman or Barrow. Dees was particularly upset because she was not permitted to meet Freeman's boyfriend. Moreover, Freeman requested that Dees undergo an amniocentesis, which Dees feared. At one point, Dees panicked about the test and Freeman suggested she take a valium. The comment was dismissed by Barrow as a "joke."

On October 9 and 10, 1990, Dees telephoned Joanne Pilla in New York from public phones located in Van Nuys, California. Dees identified herself as Leanne Baker and told Pilla that she was interested in placing her unborn baby for adoption. On October 13 and 14, Dees contacted Pilla from Las Vegas and informed her that she was interested in adoption but that she was homeless and hungry. On October 14, Pilla wired Dees $200 for food and shelter. The October 10, 1990 call was the basis of charge 13 of the indictment (for which Dees was convicted). The October 14, wire transfer was the basis for count 8 of the indictment (for which Dees was convicted).

On November 5, 1990, Barrow was contacted by another adoption attorney whose clients had met with Dees in the hopes of adopting her unborn child. When Barrow confronted Dees with this information, Dees stated that she was unhappy with Freeman and hung up. Two hours later, Barrow and Freeman found that the apartment they had rented for the Dees had been abruptly abandoned. They found in the apartment information which established that Dees owned a car and had received almost $3,000 from the Social Security Administration. Freeman had no further contact with Dees who eventually gave birth to a child that was adopted by a relative of Dees's husband.

At trial, Dees claimed that she had made numerous arrangements for the adoption of her babies because of her ambivalence with respect to the persons who had agreed to adopt. Dees claimed she was seeking to "cover her bases."

On November 19, 1992, a federal grand jury indicted Leanne Dees on five counts of mail fraud and ten counts of wire fraud. The jury found Dees guilty of one count of mail fraud and five counts of wire fraud. The jury acquitted Dees of two counts of mail fraud and deadlocked on two counts of mail fraud and four counts of wire fraud. The court declared a mistrial on the deadlocked counts and the government moved to dismiss those counts. Prior to the commencement of deliberations, the government moved to dismiss one count of wire fraud.

On April 5, 1993, Dees was sentenced to thirty months in custody on counts five, six, seven, eight, ten and thirteen (to be served concurrently) followed by a three year term of supervised release.

II.

Dees argues the jury should have been instructed that under California law it is illegal to enter into a contract for the adoption of an unborn child, and payments made to pregnant women in anticipation of a subsequent adoption are considered charitable donations with no binding consequences. The issue is whether the court's instruction on specific intent to defraud rendered Dees's proposed good faith instructions superfluous. This question of law is reviewed de novo. United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.1992).

In general, "[a] defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence." United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990); United States v. Lopez, 885 F.2d 1428, 1434 (9th Cir.1989), cert. denied, 493 U.S. 1032, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990). It is not reversible error to reject a defendant's proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory. Mason, 902 F.2d at 1438.

Dees argues that her proposed instructions should...

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