Documente Academic
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No. 91-2214
UNITED STATES,
Plaintiff, Appellee,
v.
ROGER ALLEN DOANE,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Roney,* Senior Circuit Judge,
____________________
and Pieras,** District Judge.
______________
____________________
Jonathan R. Saxe, by Appointment of the Court, with
________________
Sisti Law Offices was on brief for appellant.
_________________
whom Twome
_____
PIERAS,
District Judge.
______________
licensed attorney
practicing
Appellant Roger
in Salisbury,
fraud
(18 U.S.C.
1344),
conviction
Section
(18 U.S.C.
alleging an
656).
was
of New Hampshire of
of
incorrect jury
2314, insufficient
Massachusetts,
interstate transportation
Allen Doane,
evidence to
instruction
sustain his
relating to
conviction
arguments,
we affirm.
Background
Background
__________
transactions.
devised and
purpose
of
Savings
Bank
Seabrook,
carried
which was
of
New
The fraud-related
out by
to obtain
America
Hampshire,
Doane
funds
in early
from the
(hereinafter
and
counts involved a
these
the
United States
"USSBA")
to deposit
1987,
located
funds
in
in
an
girlfriend of a former
given for
subject
Doane created a
the
loan was
to four
other
Heffron, a USSBA
mortgage on
mortgages
employee who
which
had been
The collateral
beach house
was
owned
already
by
Marion
Doane's bookkeeper
for
several years and continued to receive money from him after being
2
employed by USSBA.
application
for
loan to
the
trust and,
an
using his
influence
amount
over
Heffron, directed
the trust.
draw
a check
benefit of Doane
He then directed
check and
her to
as attorney for
deposit it into a
in the
pick up the
account at the
additional
of
$110,000.00,
checks
check on the
payable
to
totalling $23,533.00
FNBB account in
Primacare,
payable to
and
four
himself for
embezzlement-related counts
involved
The
first loan,
obtained for
in
the
accounts maintained at
amount
of $140,000.00,
used to
pay
off a
pre-existing
was
USSBA
two other
first mortgage
on
the
for
Instead, seven
various
other
purposes,
Doane for
the identified
including
three
checks
for "fees
that the
monthly
office
payments on
funds,
but
the pre-existing
then
loan be
discontinued
the
paid out
payments.
of law
Doane
but later
by Doane's law
USSBA directed the borrowers, Gary and Darlene Richie, to use the
services
of
$85,000.00,
USSBA.
of
Doane's
firm.
The
loan
a client trust
totalling
fund account at
the amount
proceeds,
stop payment on
$41,762.94
the check.
were drawn
on the
to place a
totalling
account, all
signed by
and made
asserts
that
the
district
court
committed
a correlative
instruction
that the
mental
The
precepts
instructions
review
controlling our
of a
trial
Primary
among them
overall charge."
court's jury
is the
not be judged in
viewed in the
context of the
With this
In setting forth
(June 20,
We
cannot
an
merely
explaining
to
the
abetting.
jury
that
The
in
order
to
find
____________________
1 18 U.S.C.
$10,000 or
or caused to be moved
____________________
commerce.
the
by
the defendant
in
interstate
word "aided"
was perhaps
jury
indictment,
not
could
not
have
concluded
otherwise.
The
In addition,
taken together required the jury to find that the defendant acted
knowingly
and intentionally.
determine
that the
substantial risk of a
U.S.
Under
trial court's
these
circumstances,
miscarriage of justice.
Accord
______
we
create a
Cupp, 414
____
asserts that
at trial
656.
in the
or employee,
not money
of USSBA
evidence was
sufficient to show
v. Davis,
________
showed that
appellant
(i) bank
on
matters
to
that appellant
1992).
the bank;
or
We disagree.
(ii) that
(ii)
The
evidence
advice from
the
bank's
appellant's
the sole
employee acted
as
the
the appellant's
law
creating a
office
and the bank; and (iv) most strikingly, the bank required
________
loan.
duty between
agent on
loans,
one of the
fiduciary
closing
appellant to obtain a
interests of the
____________________
documents at
creditor.2
From
these
facts, viewed in a
prosecution, the
of USSBA.
Second,
the
"intrusted to
funds
which
the care of [a
were
embezzled
not embezzle
meaning of Section
"funds
. .
656 because
. of
USSBA to his
deposited
fact to be
true, Doane
Section 656.
embezzled
are
[the]
bank" within
the
loan proceeds
had
is not delivered
by the
title to the
clearly
were
they were
Assuming this
from conviction
under
custody of
an
agent of
_____
a federally-
insured
bank.3
deposited
appellant's
in
Once
client
law office,
custody or care."
the funds
trust
passed
funds
they were
into escrow
accounts
maintained
clearly "intrusted
and
were
by
to [his]
Suppression of Evidence
Suppression of Evidence
_______________________
Appellant's
court's denial
final issue
of
two
on
motions
appeal
he filed
involves the
to
suppress
district
certain
documents
their
the
delivered to
the Federal
custodian, a bankruptcy
corporate
Investigation by
trustee, and by
the president of
entity
whose
records
were
contends
were
obtained
by
documents
he
violation
of the Fourth
several
Bureau of
procedural
Amendment.
and
The
delivered,
the
government
in
substantive reasons
which
why
the
district
issues.
The
exclusionary
evidence,
to
admitted
into
which a
rule
timely
evidence.
constitutional
right
judicially created
provides
of
objection
The
the
that
rule
None
of the
introduced
was
made,
reflects not
person aggrieved
remedy designed
obtained
cannot
be
personal
instead
deter improper
but
primarily to
illegally
U.S. 31
to have
As a
(1979).
suppressed were