U.S. v. Puerta

• Decision Date: 21 October 1994
• Docket Number: No. 93-2167,93-2167
• Citation: 38 F.3d 34
• Parties: UNITED STATES of America, Appellee, v. Antonio Medina PUERTA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 34

38 F.3d 34

UNITED STATES of America, Appellee, v. Antonio Medina PUERTA, Defendant, Appellant.

No. 93-2167.

United States Court of Appeals First Circuit.

Argued April 6, 1994.

Decided Oct. 21, 1994.

Morris M. Goldings with whom Richard S. Jacobs and Mahoney, Hawkes & Goldings, Boston, MA, were on brief, for appellant.

Timothy Q. Feeley, Asst. U.S. Atty., with whom Donald K. Stern, U.S. Atty., Boston, MA, was on brief for, U.S.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

On September 5, 1991, a grand jury indicted Antonio Medina Puerta, charging him with one count of bank fraud under 18 U.S.C. Sec. 1344 and one count of transportation in foreign commerce of stolen or fraudulently obtained funds under 18 U.S.C. Sec. 2314. The gist of the events described in the indictment was that Medina had deposited a $365 check in his Bank of Boston account, knowingly misrepresented the amount as $365,000, ultimately received a credit of $365,000 to his account, and then transferred $350,000 of these fraudulently obtained funds to his account in an English bank.

At arraignment on October 8, 1991, the magistrate-judge ordered that pre-trial motions by the defense be filed by November 1, 1991. On this deadline, Medina filed a number of motions that were subsequently resolved. Medina's trial date was repeatedly delayed, largely at his own request, until January 4, 1993. In the meantime, on November 24, 1992, following a change of counsel by Medina, his new counsel submitted five additional pre-trial motions, accompanied by a motion seeking leave to file the motions late.

One of these motions--with which this appeal is in part concerned--asked that the case be dismissed on the ground that it was being pursued in breach of a promise by the prosecutor made in 1987 not to prosecute if Medina made restitution to the bank of $200,000. The government opposed the motion to file out of time. On December 30, 1992, the district court denied the request to file motions out of time (with exceptions not here relevant), ruling that good cause had not been shown for the late filing. The court also said that it had "nevertheless" examined the substantive motions to see whether an exception should be made in the interests of justice; in giving a negative answer, the court found the assertions made in support of the motion to dismiss were insufficient to justify an evidentiary hearing.

Medina was tried in January 1993. The evidence, taken in the light most favorable to the government, see United States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 257, 130 L.Ed.2d 177 (1994), showed the following. In 1986 Medina was a research associate at a non-profit research organization in Boston then known as the Eye Research Institute. Medina had been born and raised in Spain and was fluent in both English and Spanish. He had Spanish graduate degrees in optics and engineering and a graduate degree in electrical engineering from Massachusetts Institute of Technology.

On November 3, 1986, Medina deposited a check in his account in that branch of the Bank of Boston where he did most of his banking. The check was a bank check prepared by Banco Central of Spain, dated October 30, 1986, at Toledo, Spain, and was made payable to Medina. The written designation of the amount was, in Spanish, "Dolares USA, Trescientos Sesenta Y Cinco," which translates as "three hundred and sixty-five U.S. dollars." There was also an arabic-numeral expression of the amount in a small box on the right-hand side of the check: "USD 365,ooo." The words "First National Bank of Boston" appear on the check, and both the government and Medina have described it as a check drawn on Banco Central's own checking account at the Bank of Boston.

When Medina deposited the check in his account on November 3, 1986, he listed the amount on the deposit slip as "$365,000." Two days later, on November 5, Medina returned to the branch and requested a customer service representative, Lisa Popielski, to wire $350,000 from Medina's checking account to an account in England. Apart from the November 3 deposit, Medina's balance was about $3,000. Popielski said that she needed to verify that the check had been collected and asked Medina to return the next day. When Medina returned on November 6, Popielski told him that the $365,000 credit had been deleted from his account and the check had been returned to him by mail. She told him to bring the check back to her if he intended to redeposit it.

The following day, November 7, Medina returned with the check and Popielski told Medina that the check had been returned for lack of his endorsement; he then signed the back of the check, Popielski filled out a second deposit slip for him in the amount of $365,000, and Medina redeposited the check into his account. On November 12, Medina returned to the bank and signed a wire transfer order, directing the transfer of $350,000 to an account in his name at Lloyd's Bank in Cambridge, England. Later that morning the funds were wired to England.

When interviewed by the FBI in early December 1986, Medina admitted that he had deposited the check but explained that he thought that the check was funding from a Spanish ministry for a research grant for his work at the Eye Research Institute. He said that he had purchased about $150,000 worth of equipment in Spain where it remained and where some of the research was to be conducted. Medina subsequently gave to the FBI a letter from a Spanish ministry stating that a committee had agreed to propose the funding of a grant.

Medina also submitted to the FBI a summary document prepared within the National Institutes of Health which recommended NIH approval of a research application by Medina with proposed funding of $282,286. There was evidence at trial that this application had never been finally approved and that, if it had been funded, the Eye Research Institute and not Medina would have received the funds. There was also some evidence, apparently disputed, that Medina had in fact purchased $138,755 in specialized equipment in Spain.

At trial it developed that the bank had stumbled repeatedly. The processing section of the bank had queried Banco Central about the check, and on November 6, the day before Medina had redeposited the check, Banco Central had wired that the proper amount of the check was $365. When Medina redeposited the check on November 7, only $365 was debited against Banco Central's account, but Medina was credited with a $365,000 deposit. An interoffice adjustment slip was prepared to reduce Medina's deposit by $364,635, but Medina's account records were not corrected until on or about November 25 when most of the money had long since been transferred to England.

Although Medina did not testify, his position at trial was that this was an innocent misunderstanding. Medina did present an expert witness who was familiar with Spain and Spanish accounting who gave testimony on the differences between American and Spanish practices in the writing and punctuation of arabic numbers on large checks. The government's position was that Medina had certainly read the written Spanish words on the check, which indisputedly represented its amount as $365, and had known that he was not entitled to $365,000.

On January 28, 1993, the jury convicted Medina on both counts. Thereafter, Medina filed post-trial motions renewing his request for an evidentiary hearing on the government's supposed breach of a promise not to prosecute. In a supplemental memorandum, Medina said that new evidence showed that the government had a motive to retaliate which explained its breach of the alleged promise not to prosecute. The court denied the motions, calling the proffer inadequate. On September 30, 1993, the court sentenced Medina to 18 months' imprisonment and required that Medina pay fines or restitution in a total amount of $150,000. The court stayed the sentence pending this appeal.

Medina's initial arguments on appeal relate to his pre- and post-trial requests for a hearing on his claim that the government breached its promise not to prosecute if restitution were made. The government says that the original pre-trial motion was submitted late, together with the request for leave to file; leave was not granted because no adequate excuse for the delay was given; and that should be the end of the matter. Medina, scarcely acknowledging the refusal to grant his motion to file late, attacks the district court's ruling that the proffer was insufficient to justify an evidentiary hearing.

We see no reason to choose between the alternative grounds for denial of a hearing--lateness and lack of merit--because each is adequate. The original motion was filed long after the deadline with no explanation other than a change of counsel. Where the district court refuses to allow a new motion to be filed out of time, the standard on appeal is abuse of discretion. E.g., United States v. Roberts, 978 F.2d 17, 21 n. 5 (1st Cir.1992). If the district judge had rested solely on the lateness of the pre-trial motion and refused to entertain a post-trial replicate of the same motion, there would be no abuse of discretion. Nor would the district court's precautionary comment on the merits in denying leave to file either remove the lateness objection or alter our standard of review.

The result is no different if we do consider the merits. In substance, Medina's proffer asserted that in July 1987 an assistant U.S. attorney advised Medina's then counsel that the government would not prosecute Medina if he would agree to make restitution to the bank in the amount of $200,000. The proffer then concluded: "By the end of 1988, I [Medina] had paid the Bank of Boston an amount greater than $200,000." Medina's affidavit was also the basis for the post-trial motion making the same request for a hearing on the...