U.S. v. McCann, 03-1174.

• Decision Date: 05 May 2004
• Docket Number: No. 03-1174.,03-1174.
• Citation: 366 F.3d 46
• Parties: UNITED STATES of America, Appellee, v. Dana Dray McCANN, a/k/a Danny Combs, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

366 F.3d 46

UNITED STATES of America, Appellee, v. Dana Dray McCANN, a/k/a Danny Combs, Defendant, Appellant.

No. 03-1174.

United States Court of Appeals, First Circuit.

Heard March 4, 2004.

Decided May 5, 2004.

COPYRIGHT MATERIAL OMITTED

Bruce Green, for appellant.

Cynthia A. Young, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellee.

Before BOUDIN, Chief Judge, LYNCH and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Following an eight-day trial, a jury convicted defendant Dana Dray McCann (a/k/a Danny Combs and D. Dacques Sonner) of mail fraud, wire fraud, and engaging in monetary transactions in criminally derived funds ("money laundering"). See 18 U.S.C. §§ 1341, 1343, & 1957. This appeal requires us to decide (1) whether the evidence was sufficient to support the mail-fraud conviction, (2) whether the district court abused its discretion in making two evidentiary rulings, (3) whether it was plain error for a federal agent to testify that, during a non-custodial interrogation, McCann had refused to provide his true name when asked, and (4) whether the court erred in sentencing. After careful review, we affirm.

I.

We recite the relevant facts in the light most favorable to the verdicts, see United States v. Echeverri, 982 F.2d 675, 676 (1st Cir.1993), omitting details extraneous to the issues raised on appeal.

In the late 1990's, McCann moved to Springfield, Massachusetts, where he developed business and personal connections within the Springfield law firm of Winniman & Winniman. It was through these connections — particularly, a relationship with Sara Rossman (a paralegal at the firm) — that McCann was able to obtain access to the firm's accounts, stationery, notary stamps, signatures, and other items that assisted him in the two fraudulent schemes at issue in this case.

A. Scheme # 1: The Purchase of the Horse Farm

On April 6, 2000, McCann provided Rossman at Winniman & Winniman a counterfeit $2 million check (purportedly drawn on an Italian bank) and asked her to deposit the check into the firm's trust account. McCann advised Rossman that he planned to use this money to pay for, inter alia, his purchase of a horse farm in Windsor, Connecticut. Based on these representations, Rossman prepared a deposit ticket and immediately issued to McCann several checks drawn on the trust account, including a $1 million check for the purchase of the horse farm. Rossman and McCann then traveled together to the firm's bank to deposit the check, but Rossman left to run errands before they reached the teller. McCann left the bank without depositing the $2 million check.

Later that day, McCann (posing as D. Dacques Sonner, the Chairman of International Land & Livestock) finalized an earlier-agreed-upon purchase of the horse farm by providing Dennis McCormack (an attorney for the seller's trust) with the $1 million check drawn on the Winniman & Winniman trust account. McCormack advised McCann that the deed would be delivered once the check had cleared. The following day, McCormack mailed Winniman & Winniman a letter stating that he was depositing the check into the seller's trust account and that he would disburse funds from that account on April 12th unless he heard otherwise. Hearing nothing, McCormack thereafter wrote checks on the seller's trust account. When these checks bounced (because the $1 million check never cleared), McCormack immediately phoned McCann, who then promised to straighten out what he alleged was a mix-up at the bank.

Meanwhile, McCann (posing as attorney Danny Combs with Winniman & Winniman) had been in simultaneous loan negotiations with West Coast businessman William Abraczinskas. McCann was seeking from Abraczinskas a quick infusion of approximately $2 million in "show money" — money needed merely to show the sellers that "Combs's" "client" (i.e., McCann) had the wherewithal to purchase the farm — that would immediately be repaid, together with $1 million interest. Abraczinskas was told that the "show money" would not be released without his permission and that it would simply remain in the Winniman & Winniman trust account until repaid.¹

Abraczinskas eventually agreed and, on April 13, 2000, wired $1.56 million to the trust account. The account now being funded (albeit with "show money"), McCann met with McCormack on April 14th and provided him with a $1 million certified check (which McCormack deposited). It was only after McCann had withdrawn the "show money" and received a deed to the horse farm that a concerned Abraczinskas, in an effort to protect himself, entered into a purchase-repurchase agreement with McCann. This agreement provided, inter alia, that Abraczinskas was to take title to the farm (and five horses) until McCann repaid the loan. Once payment was received, Abraczinskas would release title back to McCann. Expecting McCann to tender payment and seeking to avoid any tax consequences, Abraczinskas — who did not want the farm in any event — did not immediately record the deed and instead accepted McCann's various explanations for the delay.

A few months later, in July 2000, McCann (posing as D. Dacques Sonner) telephoned McCormack and asked for a $200,000 loan to purchase an Arabian horse. Despite having already transferred to Abraczinskas the deed to the horse farm, McCann offered the farm as collateral for the loan. After a subsequent title search revealed that McCann had clear title (recall that Abraczinskas had not yet recorded), McCormack agreed to the loan and promptly recorded the mortgage.

Abraczinskas recorded his deed on August 31, 2000, having never received payment from McCann on the original loan.

B. Scheme # 2: The Double Assignment of the Mortgage

On or about April 14, 2000 — using funds from the $1.56 million wire — McCann loaned $250,000 to Robert and Edward Allen for their purchase of a building in Springfield.² The Allens, in turn, provided McCann with a note secured by a mortgage on the building and agreed to tender monthly payments to Winniman & Winniman.

McCann thereafter proceeded to assign the Allens' mortgage to two different buyers. First, on May 18, 2000, he assigned the mortgage to Brian David for $175,000, with Winniman & Winniman handling the details. Under the agreement, the Allens would simply continue forwarding payments to Winniman & Winniman, which would then issue checks to David. For some reason, David did not immediately record the assignment; according to David, there was a possibility that McCann would buy back the mortgage in a short period of time.

Approximately one month after this assignment, aided by David's failure to record, McCann assigned the same mortgage to Paul Picknelly for $165,000. Picknelly (through his attorney) immediately recorded the assignment and, on June 21, 2000, mailed to the Allens a letter (the "June 21st letter") notifying them of the change and directing them to make payments directly to him rather than through Winniman & Winniman. Having received in the interim some payments from the Allens (and perhaps unaware of the new assignment), Rossman thereafter began making payments to David — by personal check.³

Sometime around July 20, 2000, David (unaware, of course, of McCann's subsequent dealings) received from McCann an undated letter stating that the corporation for which McCann worked had voted to repurchase the mortgage and would accordingly send payment by August 3rd. In early August 2000, a partner at Winniman & Winniman discovered David's unrecorded assignment; after contacting David, the partner immediately recorded the assignment only to learn that the Allens' mortgage had also been assigned to — and promptly recorded by — Picknelly.

C. Procedural History

McCann subsequently was tried before a jury on seven counts of a superseding indictment: two counts of mail fraud (see 18 U.S.C. § 1341), two counts of wire fraud (see 18 U.S.C. § 1343), and three counts of money laundering (see 18 U.S.C. § 1957). Following the government's presentation of its case-in-chief, McCann moved for a judgment of acquittal on each count. See Fed.R.Crim.P. 29.⁴ The district court granted this motion as to one of the mail-fraud counts (a bank's mailing of an insufficient-funds notice to McCormack after he had attempted to draw on the seller's trust account) but denied it with respect to the remaining six counts.

The jury thereafter returned guilty verdicts on five of these six counts: the remaining mail-fraud count (Picknelly's June 21st letter informing the Allens of the assignment); one of the wire-fraud counts (the $1.56 million wire from Abraczinskas to the Winniman & Winniman trust account); and all three money-laundering counts (Abraczinskas's $1.56 million wire transfer, McCormack's delivery of the $1 million certified check for deposit, and the delivery of the $250,000 check to the Allens). A verdict of not guilty was returned on the other wire-fraud count (a call from McCann to Picknelly discussing the terms of the assignment).

On January 9, 2003, McCann was sentenced to 105 months' imprisonment (consisting of concurrent sentences of 60 months for the fraud convictions and 105 months for the money-laundering convictions), a three-year term of supervised release, and $1,895,610.84 in restitution. This appeal followed.

II.

As noted above, we are presented with four issues on appeal: (1) whether the evidence was sufficient to support the mail-fraud conviction; (2) whether the district court abused its discretion in making two evidentiary rulings; (3) whether it was plain error for a federal agent to testify that, during a non-custodial interrogation, McCann had refused to provide his true name when asked; and (4) whether the court erred in sentencing.

Given these separate issues, four standards of review apply. First, in deciding sufficiency challenges, "we review all the evidence, direct and circumstantial, in the light most...