UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. xx-3039

BRIEF FOR APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

xxxxxxxxxxx xxxxx, Defendant-Appellant.

JURISDICTION

ISSUE PRESENTED FOR REVIEW

Whether the district court erred in denying Mr. xxxxxxx request for a jury instruction setting out the defense theory of the case where the instruction was supported by the evidence and the law and where the jury was given the government's theory of the case.

STATUTES AND REGULATIONS

Pertinent statutes are set out in the addendum to this brief.

On April 26, 1996, a grand jury returned a 25-count indictment against xxxxxxxx and xxxxxxx charging bank fraud in violation of 18 U.S.C. § 1344, money laundering in violation of 18 U.S.C. § 1957, and theft in violation of D.C. Code §§ 22-3811, 3812(a) and 3901(a). The government subsequently filed a retyped, 23-count indictment on September 18, 1996, the first day of trial. (ND App. 16-31).¹ The government alleged that xxxxxxxx and xxxxxx had fraudulently taken money from xxxxxx and xxxxxxxxxx, for whom they were providing physical care, through a series of bank account transfers and forged checks.

After a five-day jury trial, the jury returned verdicts of not guilty on two counts for xxxxx and on twelve counts for xxxxx. The jury was unable to reach a decision on the remaining counts, and the district court declared as mistrial as to those counts. (9/25/96 Tr. 776, 783).

On January 28, 1997, the government filed a second retyped 21-count indictment against xxxxxx and xxxxxxxxx charging the counts not decided at the first trial. (ND App. 32-48). xxxxxxxx was charged with four counts of bank fraud in violation of 18 U.S.C. §§ 1344 and 2 (counts 1, 2, 3, and 11); one count of money laundering in violation of 18 U.S.C. § 1957 (count 19); and two counts of first-degree theft in violation of 22 D.C.C. §§ 3811, 3812(a) and 3901(a) (counts 20 and 21). After a four-day jury trial, the jury convicted Linda xxxxx of all counts against her and convicted Nathaniel xxxxx of all but two counts against him. The jury found Nathaniel xxxxx not guilty of count 11 (bank fraud) and count 20 (first-degree theft). (1/31/97 Tr. 785-89).

On April 7, 1997, the district court sentenced Linda xxxxx to 63 months' imprisonment on each of counts 1 through 19, and 20-60 months on each of counts 20 and 21, the sentences to run concurrently. (4/7/97 Tr. 17). The court sentenced Nathaniel xxxxx to 33 months' imprisonment on each of counts 1 through 3 and count 19,² and 12-36 months on count 21, the sentences to run concurrently. (Id. at 19; ND App. 60). In addition the court ordered the defendants to pay $200,000 restitution, such obligation being joint and several between Linda and Nathaniel xxxxx. (4/7/97 Tr. 17, 19; ND App. 62).

B. Statement of Facts

Linda E. xxxxx is a certified nursing assistant who worked in home health care for 22 years. In March 1994 she was employed by the Olsten Kimberly Home Care agency when she was sent to the home of Raymond Duckworth to care for him after his stroke. (1/30/97 Tr. 628-33, 666). In July 1994, the Duckworths hired Linda xxxxx directly as a private duty nursing assistant for Mr. Duckworth. (Id. at 675).

After Linda xxxxx was hired by the Duckworths in July 1994, Nathaniel xxxxx, her husband of 30 years, also began working for the Duckworths. He worked nights and weekends (and some days), caring for Mr. Duckworth's physical needs and helping Mrs. Duckworth with errands. (Id. at 627, 666, 668-69, 676).

1. The Government's Case

At trial, the government argued that Linda xxxxx had transferred money from the Duckworths' accounts into accounts controlled by her as trustee, had written checks from those accounts without permission, and had used some of the money in the accounts for her own and her husband's benefit.

The government's primary witness was its own auditor, who documented how Linda xxxxx, using a power of attorney and trust agreement giving her authority over the Duckworths' funds, had transferred money from accounts in the name of Mr. and Mrs. Duckworth into accounts in the name of Linda xxxxx as trustee for Raymond Duckworth. (1/29/97 Tr. 446-454). He also documented checks written by Linda xxxxx from the various Duckworth accounts. These included salary checks to Linda and Nathaniel xxxxx, checks to pay off the xxxxxes' credit cards and two gift checks in the amount of $10,000 each and one in the amount of $20,000 to Nathaniel xxxxx. (Id. at 454-71, 477-480). The government also called an employee of the Bureau of Public Debt who testified that Linda xxxxx, through her power of attorney from Raymond Duckworth, had transferred money in the Duckworths' Treasury securities accounts into accounts in her name as trustee. (1/29/97 Tr. 399-422).

In addition, the government called an attorney, Anjali Kumar, who had prepared a trust agreement and will for Mr. Duckworth providing authority to Linda xxxxx to manage the Duckworths' funds. Ms. Kumar testified that Linda xxxxx had come to see her about preparing a will and trust agreement for Mr. Duckworth. (1/29/97 Tr. 261-65). Ms. Kumar prepared the documents naming Linda xxxxx as trustee and executor, and took the documents to the Duckworths' apartment for Mr. Duckworth's review. She told Mr. Duckworth the purpose of her visits and read the trust agreement to him. When he began to get tired, Ms. Kumar left the documents with him for review at another time. (Id. at 270-75). Ms. Kumar testified that she believed Mr. Duckworth understood the documents and that the documents were in accordance with his wishes and interests. (Id. at 296-301). Mr. Duckworth later executed the will and trust agreement in December 1994.

At the end of its case, the government called Dr. Russell Tilley, Mr. Duckworth's physician, as an expert witness. Dr. Tilley testified that Mr. Duckworth was not competent in December 1994 to sign a will and trust agreement. (1/30/97 Tr. 576-77).

2. The Defendants' Cases

The defendants presented evidence, primarily through Linda xxxxx's testimony, to show that Linda xxxxx acted legally and with Mr. Duckworth's permission in administering the Duckworths' finances. Mr. Duckworth knew that he could no longer handle the family finances and did not have confidence in his wife's ability to manage this task. He was concerned that his wife be cared for financially after his death. The Duckworths had no children to look after them or their finances. Mr. Duckworth gave Linda xxxxx power of attorney over his funds and specifically requested that she sign checks, make ATM cash withdrawals for household needs, pay the xxxxxes' salaries, and move and consolidate bank accounts. In addition, he appointed Linda xxxxx as trustee under a trust for Mrs. Duckworth and as executor of his will so that Mrs. xxxxx could continue to manage his finances after his death. (1/30/97 Tr. 635-666, 674). Defense witness Lilleth Williams, another private duty nursing assistant for Mr. Duckworth, testified to his competency to make these decisions. (Id. 621-22).

Furthermore, Linda xxxxx testified that Mr. Duckworth gave monetary gifts to her and Nathaniel xxxxx on several occasions to pay off their credit cards, to help purchase a new car and to pay off their mortgage. These gifts were in appreciation of their loyal service to him and his wife and to compensate the xxxxxes for caring for his wife after he died. (1/30/97 Tr. 641-42, 645, 648, 650-51, 656-57, 659-61, 670).

Mr. xxxxx's counsel showed through cross examination that he did not take part in any of the financial transactions transferring funds in the Duckworths' accounts. Neither did he sign checks nor participate in hiring an attorney to draft a will and trust agreement for Mr. Duckworth. (1/29/97 Tr. 323-24; 1/30/97 Tr. 671-673).

Because the evidence had focused on the actions of Linda xxxxx, counsel for Mr. xxxxx did not put on any witnesses and Mr. xxxxx did not take the stand. Counsel for Mr. xxxxx, however, requested that the court instruct the jury on his defense theory of the case. (ND App. 49-51). Mr. xxxxx contended that "there was no scheme to defraud a financial institution because Linda xxxxx, his wife, had legal authority and specific instructions from Raymond Duckworth to conduct the financial transactions." (ND App. 50). Mr. xxxxx himself had no authority over the Duckworths' funds and "did not write any checks nor transact business regarding Raymond Duckworth's bank accounts." (Id.). The most he did was to receive checks from Linda xxxxx, who was authorized under the power of attorney and trust agreement, and verbally by Mr. Duckworth, to write such checks. Furthermore, Mr. xxxxx requested that the jury be instructed that his physical presence in the Duckworth home or other places is not by itself sufficient to establish his guilt. (Id.). The court denied the motion based on the fact that it had refused the government's request for a "theory of the prosecution instruction" and that the court believed that the principle theory in the defense instruction -- that mere presence does not establish aiding and abetting -- was already included in the aiding and abetting instruction.³ (9/24/96 Tr. 662-64; 1/30/97 Tr. 687-88).

SUMMARY OF ARGUMENT

Mr. xxxxx was entitled to have the district court instruct the jury on his theory of defense, as that theory had an adequate basis in the facts and law of the case. The district court's refusal was in error. Furthermore, the district court's error was reversible because it effected Mr. xxxxx's ability to present his case effectively to the jury. The jury heard from the court the government's theory of the case without a comparable instruction on the defense theory.

A. Standard of Review

This Court reviews de novo a district court's refusal to give a proper defense-theory jury instruction. Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993); cf. United States v. White, 116 F.3d 903, 924 (D.C. Cir.), cert. denied, 118 S. Ct. 390 (1997) (reviewing de novo whether instruction properly conveyed elements of RICO charge).

A district court's refusal to give a requested jury instruction constitutes reversible error "if the instruction is substantively correct, not already substantially covered in other instructions given to the jury, and concerns an important point in trial such that failure to give it seriously impairs the defendant's ability to present effectively his defense." United States v. Thomas, 114 F.3d 228, 244 (D.C. Cir.), cert. denied, 118 S. Ct. 635 (1997) (citing United States v. Taylor, 997 F.2d 1551, 1558 (D.C. Cir. 1993)); accord United States v. DeFries, 129 F.3d 1293, 1309 (D.C. Cir. 1997).

B. Mr. xxxxx Was Entitled to A Jury Instruction on the Defense Theory of the Case

From the beginning of the trial, Mr. xxxxx maintained that there was no scheme to defraud financial institutions, to launder money or to steal money from the Duckworths. (See 1/28/97 Tr. 147-51 (opening statement)). Consistent with his counsel's arguments, Mr. xxxxx requested a defense-theory instruction informing the jury that he maintained that there was no illegal or unauthorized conduct by Linda xxxxx and that his presence in the Duckworths' home was not by itself sufficient to establish a scheme to defraud or that he aided or abetted any such scheme. "It is well established that '[a] defendant is entitled to an instruction on a defense theory if it has a basis in the law and in the record.'" Bell Helicopter, 999 F.2d at 556 (quoting Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1044 (9th Cir. 1987), aff'd, 496 U.S. 543 (1990)); see United States v. Tarantino, 846 F.2d 1384, 1400 (D.C. Cir. 1988); United States v. Duncan, 850 F.2d 1104,

1117 (6th Cir. 1988); cf. DeFries, 129 F.3d at 1308 (holding that defendant entitled to advice-of-counsel instruction where supported by the evidence).

The record establishes a sufficient evidentiary basis for Mr. xxxxx's defense-theory instruction. The evidence in this case included testimony that Linda xxxxx, as the primary care giver for Mr. Duckworth, managed the Duckworths' financial affairs under the authority of a power of attorney and trust agreement signed by Mr. Duckworth. Mr. xxxxx himself never wrote checks nor made any financial transactions on behalf of the Duckworths. He received salary and gift checks, written by Linda xxxxx at the direction of Raymond Duckworth, which were properly executed pursuant to Linda xxxxx's authority under the power of attorney and trust.

The defense-theory instruction also had a proper basis in the law. In order to convict, the jury must have found that Mr. xxxxx had knowledge of illegal transactions and had an intent to defraud the Duckworths. The defense-theory instruction sets out the defense to the government's case for knowledge and intent, that is, that Linda xxxxx had legal authority over the Duckworths' funds. Furthermore, the instruction properly states the law on the insufficiency of mere physical presence to convict Mr. xxxxx. See United States v. Dingle, 114 F.3d 307, 310 (D.C. Cir.), cert. denied, 118 S. Ct. 324 (1997) (stating that mere presence alone is not sufficient to establish drug possession or aiding and abetting).

The district court erred in refusing to give Mr. xxxxx's defense-theory instruction on the ground that it had refused the government's "theory of the prosecution instruction." A defendant's right to a defense-theory instruction is not premised on the court granting a similar instruction for the prosecution.

C. The Court's Refusal to Instruct the Jury on the Theory of the Defense Was Reversible Error Where the Jury Heard Instructions on the Government's Theory of the Case and Received a Detailed Verdict Form Setting Out the Government's Case

This Court should reverse Mr. xxxxx's conviction because (1) his requested defense-theory instruction was substantively correct under the law; (2) his requested instruction was not substantially covered in the district court's other instructions; and (3) failure to give the instruction seriously impaired Mr. xxxxx's ability to effectively present his defense. See DeFries, 129 F.3d at 1309; Thomas, 114 F.3d at 244.

There can be no argument that the theory-of-defense instruction requested by Mr. xxxxx was substantively correct. The district court did not take issue with the substance of Mr. xxxxx's instruction. In fact, it noted that it already planned to give the "mere presence" portion of the instruction in its aiding and abetting instruction.

The district court's "mere presence" instruction, however, did not substantially duplicate Mr. xxxxx's requested instruction.⁴(1/31/97 Tr. 774). Mr. xxxxx's theory-of-defense instruction was much broader than a "mere presence" defense. He contended that all the financial transfers in this case were authorized and legal. The fact that he may have been present -- in the Duckworths' apartment, at a bank, or at the funeral home -- when some of the transactions were made, does not prove either an illegal scheme or plan between him and his wife or any illegal intent or knowledge regarding the Duckworths' money. Furthermore, the court's "mere presence" instruction is given in the context of an instruction on aiding or abetting that presumes criminal acts by another offender. In addition, the court's "mere presence" instruction consists of two sentences buried in the middle of the jury instructions. In contrast, a defense-theory instruction as requested by

Mr. xxxxx would have put his defense in the proper context and provided the jury with a positive theory on which it could acquit. See United States v. Montanez, 105 F.3d 36 (1st Cir. 1997) (holding that district court's entrapment instruction did not adequately convey to jury the theory of defense where it did not include example requested by defendant).

Finally, the district court's refusal to give the requested instruction seriously impaired Mr. xxxxx's defense in several respects. First, despite the district court's refusal to give a "theory of the prosecution" instruction, it nevertheless included narratives of portions of the government's case in the jury instructions. The court told the jury about the government's theory of how the will and trust were fraudulently obtained when it stated:

In this case, the Court permitted Dr. Russell Tilley to give his opinion about whether Raymond E. Duckworth was capable of understanding the will and trust he signed.

(1/31/97 Tr. 766). Second, the court, under its authority, gave the jurors an unusually detailed, seven-page verdict form that specifically described the government's theory for each count of the methods used by the xxxxxes to commit bank fraud and money laundering. (ND App. 52-58). The verdict form contained more than the statutory language setting out the crime. For example, the verdict form asked the jury to decide if the defendants had committed bank fraud by forging the signature of Bertha Duckworth and negotiating checks for specified amounts (counts 1, 2 and 3), had obtained money by fraud by closing out a certain certificate of deposit (count 11), and had laundered money by depositing a $20,000 check that had been derived from unlawful activity (count 19). A narrative of Mr. xxxxx's theory of the defense in the form of an instruction by the district court was necessary "to even any imbalance" in the court's instructions. See United States v. Conlon, 661 F.2d 235, 237 (D.C. Cir. 1981).

CONCLUSION

For the foregoing reasons, Appellant Nathaniel A. xxxxx respectfully requests that this Court vacate his conviction and remand his case for a new trial.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER

________________________________

Evelina J. Norwinski

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

Counsel for Appellant Nathaniel A. xxxxx

CERTIFICATE OF LENGTH

I HEREBY CERTIFY that the foregoing Brief for Appellant does not exceed the number of words permitted by D. C. Circuit Rule 28(d).

_________________________________

Evelina J. Norwinski

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on May 20, 1998, two copies of the foregoing Brief for Appellant and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 Fourth Street, N.W., Washington, D.C. 20001.

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