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United States v. Shmuckler

United States Court of Appeals, District of Columbia Circuit

July 7, 2015

UNITED STATES OF AMERICA, APPELLEE
v.
HOWARD R. SHMUCKLER, APPELLANT

Argued May 4, 2015

Appeal from the United States District Court for the District of Columbia. (No. 1:10-cr-00102-1).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

Jay Apperson, Assistant U.S. Attorney, argued the cause for appellee. On the brief were Ronald C. Machen, Jr., U.S. Attorney at the time the brief was filed, and Elizabeth Trosman, John P. Mannarino, Jonathan P. Hooks, and Lauren R. Bates, Assistant U.S. Attorneys.

Before: GARLAND, Chief Judge, TATEL, Circuit Judge, and SENTELLE, Senior Circuit Judge.

OPINION

Garland, Chief Judge :

A jury convicted Howard Shmuckler on five counts of bank fraud and five counts of possessing and uttering[1] a counterfeit security with intent to deceive. On appeal, Shmuckler challenges the sufficiency of the evidence supporting one of the counterfeit security counts. Because the government failed to present evidence from which a reasonable jury could have found that the security (a check) was counterfeit, we reverse the conviction on that count. We reject, however, Shmuckler's request that we remand the case for an inquiry into jury selection.

I

Between August 2005 and March 2006, Shmuckler deposited a number of checks that falsely listed him as the payee, in amounts totaling over $1,358,000, into accounts controlled by him and his wife. On July 16, 2010, a grand jury returned a ten-count indictment, charging Shmuckler with five counts of bank fraud, in violation of 18 U.S.C. § § 2 & 1344, and five counts of possessing and uttering a counterfeit security with intent to deceive, in violation of 18 U.S.C. § § 2 & 513(a). The ten counts were comprised of one count of bank fraud and one count of possessing and uttering a counterfeit security for each of five transactions. The case went to trial on December 5, 2011.

Count 8 of the indictment charged Shmuckler with possessing and uttering a counterfeit check issued by a commercial insurance agency, the Young Agency, on or about October 18, 2005. In support of the charge, the government introduced (inter alia) the testimony of Steven Hickey, the accounting manager for the Young Agency. Hickey testified that, on September 28, 2005, the Young Agency issued a check for premium payments to American International Company in the amount of $408,000. He further stated that, on October 19, 2005, SunTrust Bank contacted the Young Agency, advising that the check was presented to the bank but did not clear because SunTrust detected that the payee's name on the check " had been altered fraudulently" to " Howard R. Shmuckler." 12/6/2011 A.M. Tr. 38-42. The Young Agency then placed a stop payment order on the check and issued a replacement check to American International. The government also introduced into evidence a copy of the genuine check as issued by the Young Agency, and a copy of the check as deposited by Shmuckler.

The jury convicted Shmuckler on Count 8 and on one count of bank fraud for the same transaction. It also convicted him on four other counts of possessing and uttering a counterfeit security and four other counts of bank fraud for transactions involving other checks. On April 5, 2012, the district court sentenced Shmuckler to concurrent sentences of 75 months' imprisonment on each count. It imposed concurrent, five-year terms of supervised release on the bank fraud counts and concurrent, three-year terms of supervised release on the counterfeit security counts. Finally, it ordered Shmuckler to pay restitution, as well as a $100 special assessment on each count.

On appeal, Shmuckler challenges his conviction on Count 8. Although he does not challenge his convictions on the other counts,[2] he requests that we remand the entire case to the district court to inquire into whether there was misconduct in connection with the selection of his jury. We address Count 8 in Part II and the jury issue in Part III.

II

Shmuckler contends that we must vacate his conviction on Count 8 because it was the result of a prejudicial variance. Specifically, he maintains that the evidence introduced at trial showed at most that the Young Agency check was forged -- that is, " falsely altered," 18 U.S.C. § 513(c)(2) -- while the indictment charged that the check was counterfeit -- that ...


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