U.S. v. Santa-Manzano, SANTA-MANZAN

• Decision Date: 08 December 1987
• Docket Number: D,86-1683,Nos. 86-1682,SANTA-MANZAN,s. 86-1682
• Parties: UNITED STATES of America, Appellee, v. Rafaelefendant, Appellant. UNITED STATES of America, Appellee, v. Frantz B. BELLONY, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

842 F.2d 1

UNITED STATES of America, Appellee, v. Rafael SANTA-MANZANO, Defendant, Appellant.

UNITED STATES of America, Appellee, v. Frantz B. BELLONY, Defendant, Appellant.

Nos. 86-1682, 86-1683.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1987.

Decided March 10, 1988.

Francis C. Newton, Jr., Boston, Mass., for defendant, appellant Frantz B. Bellony.

Martin Lemlich, Miami Beach, Fla., with whom John H. Lipinski, Miami, Fla., was on brief, for defendant, appellant, Rafael Santa-Manzano.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., San Juan, P.R., was on brief, for appellee.

Before BOWNES and BREYER, Circuit Judges, and LAFFITTE, ^* District Judge.

BREYER, Circuit Judge.

A federal grand jury charged appellants Frantz B. Bellony and Rafael Santa Manzano with violating the wire fraud statute, 18 U.S.C. Sec. 1343 (1982), a statute that in relevant part prohibits the use of "wire ... communication" to "execute[ ]" a "scheme ... to defraud [or to obtain] money or property by means of false or fraudulent pretenses, representations, or promises." The jury convicted appellants both of wire fraud and of "aiding and abetting" each other in committing it. 18 U.S.C. Sec. 2 (1982). They appeal their convictions, claiming that, at trial, the government proved a scheme to defraud that varied so dramatically from the scheme charged in the indictment, that one cannot reasonably say that the indictment charged them with the crimes of which they were convicted. See Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Murphy, 762 F.2d 1151 (1st Cir The evidence, viewed most favorably to the government, shows the following. In July 1983, Victor Barranco (a confederate) persuaded a Venezuelan named Roberto Jacubowicz (the victim identified in the indictment) to give him eighteen million Venezuelan bolivars (a then depreciating currency). Barranco promised that he would give Jacubowicz two million U.S. dollars (at that time a more stable currency) in return. Barranco, however, did not give Jacubowicz the money. Rather, Barranco gave him a letter of credit for $2 million which, as Jacubowicz soon discovered, contained clauses making the letter worthless. When Jacubowicz complained, Barranco told Jacubowicz that Barranco would obtain $2 million from a Swiss bank, but, in September, Jacubowicz went to Zurich and found that Barranco could not do so. Finally, in late October, Barranco told Jacubowicz to go to San Juan where another confederate, Florentino Fernandez, would take him to the Universal Trust Company and give him $1 million in certificates of deposit. In fact, on November 16, 1983, Fernandez took Jacubowicz to appellant Bellony, who gave him the fake certificates of deposit here in question.

1985). We believe that they are correct. We therefore reverse their convictions.

These facts may make out a scheme to defraud Jacubowicz, but it is not the scheme the indictment charges. The indictment, which we attach as an appendix, says that the appellants "aiding and abetting each other devised ... a scheme ... to defraud, and for obtaining money and property by means of false ... representations and promises;" that the "scheme consisted of preparing false and fraudulent certificates of deposit;" that the appellants "establish[ed] a sham office where unsuspecting buyers would be lured into purchasing these false certificates of deposit;" and that "once the money was received, the ... defendants would issue false certificates of deposit to the investors for the amount of their purchase." The indictment also lists (in two separate counts) two interstate telephone calls that appellants caused Jacubowicz to make on November 15, 1983. As read naturally, the indictment suggests a scheme to sell fake certificates of deposit. It suggests that the appellants sold fake certificates of deposit to "buyer[s]" whom they "lured into purchasing" them. But, Jacubowicz did not, in any ordinary sense of the word, "buy" or "purchase" the certificates of deposit. As far as the evidence shows, the fake certificates of deposit represented an effort, devised long after Barranco obtained Jacubowicz's bolivars, to placate Jacubowicz by convincing him (at least temporarily) that Barranco would carry out his promise to pay $2 million in U.S. dollars. With respect to what "money" or "property" the appellants obtained (namely, the bolivars) and when they obtained them (long before November 1983), the indictment is silent, if not misleading.

A constitutionally adequate indictment must "sufficiently apprise[ ] the defendant of what he must be prepared to meet." Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962) (citations omitted). The Sixth Amendment requires the government to inform the accused " 'of the nature and cause of the accusation,' " United States v. Murphy, 762 F.2d 1151, 1154 (1st Cir.1985) (quoting United States v. Tomasetta, 429 F.2d 978, 979 (1st Cir.1970)). And, the Fifth Amendment assures the defendant that the government will try him on the charges that the grand jury voted, not on some other "charges that are not made in the indictment against him." Stirone, 361 U.S. at 217, 80 S.Ct. at 273 (citations omitted). Thus, the indictment must contain " 'the elements of the offense charged' " and " 'fairly inform[ ] a defendant of the charge against which he must defend.' " United States v. Serino, 835 F.2d 924, 929 (1st Cir.1987), (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974)) (other citations omitted).

In this case, the indictment did not specify what property was the object of the charged scheme to defraud. Nor does the record suggest that the defendant knew about the government's theory of the case before the trial. Murphy, 762 F.2d at 1153-55. Nor does a reading of the indictment In Murphy, 762 F.2d at 1151, this court set aside an indictment charging that a defendant tried (through threats of force) to influence testimony of a witness. The indictment did not specify which testimony--which of two potential proceedings--the government had in mind. The court recognized the failure to specify the details of this important element of the crime as "plain error." The indictment in this case is more obviously defective than in Murphy. Its failure to specify the "money" or "property" taken is apparent; the variance between what it seems to charge in this respect and what was proved is wider; the need to correct an important procedural injustice is no less great. Given Murphy, we recognize the "plain error" present here. Murphy, 762 F.2d at 1155 (citing Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962) (per curiam ) and United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936)) (other citations omitted).

                suggest that the grand jury voted to charge the defendants with the "bolivar scam," the crime the government sought to prove.  Rather, the indictment suggests a different crime:  scheming to issue fake certificates of deposit in return for purchase money.  Thus, the indictment fails to carry out its constitutional mission.   Murphy, 762 F.2d at 1151
                

The government argues that it offered sufficient proof at trial to link appellants' scheme to issue the fake certificates of deposit with the "bolivar scam" to form one overall plan or scheme, for purposes of the "wire fraud" statute. That may be so (see, e.g., United States v. Fermin Castillo, 829 F.2d 1194, 1199 (1st Cir.1987) and cases cited therein), but the argument is beside the point. We need not decide today whether the government proved, or did not prove, a violation of the wire fraud statute. We hold only that the government did not prove the scheme it charged, and it did not charge the scheme it proved.

The government points out that not all variances are material. See United States v. Miller, 471 U.S. 130, 135-38, 105 S.Ct. 1811, 1814-16, 85 L.Ed.2d 99 (1985) and cases cited therein. The Supreme Court has recently held that a variance is not material when the government charges a large mail fraud scheme but proves a smaller one. Miller, 471 U.S. at 130, 105 S.Ct. at 1811; see Fermin Castillo, 829 F.2d at 1198 (precedents construing federal mail fraud statute, 18 U.S.C. Sec. 1341 (1982), applicable to cases construing Sec. 1343). Miller, however, involved a smaller scheme included in the larger one, a smaller scheme of which the indictment, reasonably read, fairly notified the defendants. The Miller Court specifically reaffirmed its prior holding in Stirone that it is not lawful to convict a defendant "of an offense not charged in the indictment," an offense of which the indictment cannot be fairly said to give defendants notice. Miller, 471 U.S. at 138-39, 105 S.Ct. at 1816-17 (quoting with emphasis Stirone, 361 U.S. at 213, 80 S.Ct. at 271). And, that is the circumstance here.

Finally, the government argues that appellants, through their scheme to issue...