U.S. v. Terrigno

• Decision Date: 02 November 1987
• Docket Number: No. 86-5124,86-5124
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Valerie TERRIGNO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 371

838 F.2d 371

56 USLW 2472

UNITED STATES of America, Plaintiff-Appellee, v. Valerie TERRIGNO, Defendant-Appellant.

No. 86-5124.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 2, 1987. ^*

Decided Feb. 2, 1988.

Laurie L. Levenson, Los Angeles, Cal., for plaintiff-appellee.

David F. Blaisdell, Orange, Cal., for defendant-appellant.

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

Before TANG, WIGGINS and KOZINSKI, Circuit Judges.

TANG, Circuit Judge:

Terrigno appeals her conviction after a jury trial for embezzlement and conversion of public funds in violation of 18 U.S.C. Sec. 641. She contends the district court abused its discretion in denying her motion to strike surplusage from the indictment and in imposing a condition on her probation. We affirm.

Terrigno was the Executive Director of Crossroads Counseling, a federally funded organization that counseled area residents seeking employment and provided emergency assistance (e.g. rent payments and grocery store gift certificates) for the needy. Terrigno was Director from late 1982 until Crossroads closed in October 1984, and she was responsible for all administrative functions, including disbursement of funds. Crossroads was a joint recipient of a grant of some $41,000 in 1983 and 1984; the funds were authorized by Congress and distributed through the Federal Emergency Management Agency.

The indictment alleges that Terrigno embezzled these federal funds by: (1) issuing checks drawn on Crossroads' account to her personal friends who were not eligible recipients for their and her own personal use; (2) issuing Crossroads' checks to pay her own rent and to pay for repairs of her personal automobile; (3) using Crossroads' funds to purchase clothing for herself and her friends; and (4) using Crossroads' funds to purchase $5,000 worth of Safeway gift certificates which she then used herself or gave to her friends rather than to the eligible indigents for whom the assistance was intended. A federal grand jury indicted Terrigno on fourteen counts of embezzlement and conversion but the indictment was subsequently amended to reflect twelve counts. After a jury trial the jury returned a guilty verdict on all twelve counts.

The trial court sentenced Terrigno on one count to sixty days in a community treatment center and suspended imposition of sentencing on the remaining counts and placed her on probation for five years. One condition of her probation was:

That the defendant, during the period of probation, not receive any financial remuneration or any other thing of value from any speaking engagements, written publications, movies, or any other media coverage dealing with her involvement in this offense.

I. Surplusage

Denial of a motion to strike surplusage is reviewed for an abuse of discretion. United States v. Poore, 594 F.2d 39, 41 (4th Cir.1979). The purpose of a motion to strike under Fed.R.Crim.P. 7(d) is to protect a defendant against "prejudicial or inflammatory allegations that are neither relevant nor material to the charges." United States v. Ramirez, 710 F.2d 535, 544-45 (9th Cir.1983).

Terrigno objects to the inclusion of four allegations in the indictment: (1) the repeated statement that the embezzled funds were destined for the "poor and homeless"; (2) the reiteration that she issued checks "willfully"; (3) the assertion that she prepared a list for the United Way of indigents to whom she purportedly distributed the Safeway gift certificates in an effort to "lull and deceive" the United Way; and (4) the description of "Macho" as a men's clothing store.

It is clear that these facts, while they may be somewhat prejudicial, are all relevant and material to the charge of embezzlement because the Government had to prove that Terrigno had an intent to convert money belonging to an agency of the United States. That the money was intended for the poor and homeless but was diverted to her personal uses is a necessary element of proof of embezzlement and conversion; that checks were issued willfully and the list of food certificate recipients was prepared to deceive the United Way is essential to prove the element of intent under 18 U.S.C. Sec. 641; and that "Macho" was identified as a men's clothing store is neither prejudicial nor inflammatory and is relevant to the charges because it clarifies the identity of the payee of one of the misused checks drawn on Crossroads' account. The trial court did not abuse its discretion in denying the motion to strike.

II. Probation Condition

A sentencing judge has broad discretion in setting probation conditions. United States v. Lowe, 654 F.2d 562, 567 (9th Cir.1981); United States v. Consuelo-Gonzalez, 521 F.2d 259, 264 (9th Cir.1975) (en banc). Exercise of this discretion is reviewed carefully where probation conditions restrict fundamental rights, but such restriction is permissible. Lowe, 654 F.2d at 567.

The test for validity of probation conditions, even where "preferred" rights are affected, is whether the conditions are primarily designed to meet the ends of rehabilitation and protection of the public. Id.; Consuelo-Gonzalez, 521 F.2d at 265 n. 14. This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes. Higdon v. United States, 627...