USCA1 Opinion

December 11, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 91-2223
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
GEORGE F. WOOD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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____________________
Before
Torruella and Selya, Circuit Judges,
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and Zobel,* District Judge.
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Terrence D. Garmey with whom Karen B. Lovell and Smith & Elli
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________________
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P.A. were on brief for appellant.

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Margaret D. McGaughey, Assistant United States Attorney, w

_______________________
whom Richard S. Cohen, United States Attorney, and Thimi R. Mi
_________________
____________
Assistant United States Attorney, were on brief for appellee.
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____________________
_____________________
* Of the District of Massachusetts, sitting by designation.

ZOBEL,

District Judge.
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practice in Sanford, Maine.

Appellant

was an

attorney in

priv

In 1987, Philip Spang, Jr. ("Philip")

client and close personal friend, approached him and asked if he wo

help obtain
Daniel,

the

forged

signatures of

Philip's

on deeds to certain real estate.

but then he

Hampshire.

Timothy

Appellant initially refu

agreed and sought out the services

private investigator in New

sons,

of William Lessard

Lessard promised to

locat

forger, but after considering the legal consequences of such action

contacted the Federal Bureau of
by wearing
Appellant

Investigation and agreed to cooper

recording equipment during his

encounters with appella

and Lessard communicated by telephone and in person to p

the forgeries.
charged

After many such conversations, appellant was arrest

with and, following a trial, convicted

fraud in violation of 18

U.S.C.

charge to the jury and in

1343.

of two counts of w

He now asserts errors in

the admission of rebuttal testimony as w

as the government's argument with respect thereto.

The

underlying

facts are

never denied that he sought to

substantially

We affirm.

undisputed.

Appell

obtain forged signatures on deeds.

claimed instead that he lacked the necessary fraudulent intent beca

of the unusual way in which Philip conducted his real estate dealin

Philip testified that in the 1940s and 1950s he invested significan

in

real estate.

Philip

had

siblings.

Hoping

the deeds

to avoid

prepared

in

These deeds, naming such

were recorded.

creditors and
the

inheritance tax

names of

his

children

child or sibling as owner in f

With respect to many of

the transactions, Philip a

arranged for the "donee" to sign a deed conveying the same real est
2

to

Philip.

The

latter

necessary, when he would

of title.

Appellant was

would keep

that

deed at

his

home, un

simply record it and thus divest the "don

familiar with Philip's

unique real

est

arrangements and had, in fact, drafted and/or recorded a number of

deeds.
During 1986

Philip and his wife

began to

have marital proble

as a result of which his relationship with his sons Daniel and Timo
became strained.
to deed to him

Thus, when, in 1987, Philip asked Timothy and Dan

certain of the properties he had

their names, neither would do so.

Timothy

purchased and put

Philip testified that he

belie

and Daniel had signed "return deeds" for these properties

that he could not

find the documents.

He ultimately told

appell

that the deeds were missing and that he wanted the latter's assista

in obtaining the sons' forged signatures on duplicate deeds to repl

the

ones missing.

helping to
that, in
the

Appellant

replace valid deeds

any event, the forged

sons to sign new

testified that he
which had

believed he was o

been lost or

deeds would be used

deeds conveying title to

stolen,*

only to convi

Philip so as to ca

out Philip's original intent.

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*
Appellant also testified that Philip told him his children
cleaned out his office in the basement and had stolen deeds, mon
coins, and his grandfather's gold watch.
3

Appellant asserts
his

requested

jury

first that
instructions

error.**

instructed

as to the legal effect of

faith belief in

argues

9,

reversible

not fairly consider

He

the trial
10,

that

court's failure
11

because

and
the

constitu

jury

was

the return deeds the jury co

the theory of his defense; namely,

the existence

12

to g

of the return

that his g

deeds negated

crimi

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** Defendant's Proposed Jury Instructions nine through twelve read

follows:

(
9
Mr. Wood has testified that he believed that Timothy and Dan
Spang had signed deeds re-conveying to their father, Philip,
property which
Philip had
deeded to them,
and that
consequently believed Philip and not Timothy and Daniel owned
property.
He has testified that he believed Timothy and Dan
could not be defrauded of property they did not own. If you f
that the government has failed to disprove Mr. Wood's content
that he held this belief, then the government has failed to pr
his intent to commit fraud and, accordingly, you must find
not guilty.
(

0
When a person signs a deed and delivers that deed to the per
named on the deed as the new owner, the signer of the deed
longer owns the property. It is not necessary for the deed to
recorded in the Registry of Deeds for this transfer of owners
to occur.

1
1
If you find that George Wood believed that Timothy Spang
Daniel Spang signed deeds re-conveying to their father
property he had previously deeded to them, and that he theref
believed Timothy Spang and Daniel Spang did not own the prope
and could not be defrauded of it, then you must find that
government has failed to prove that Mr. Wood had an intent
defraud and, therefore, you must enter a verdict of not guilty.

1
2
If you find that George Wood believed that Timothy Spang
Daniel Spang signed deeds re-conveying to their father
property he had previously deeded to them, then you must f
that the government has failed to prove that Mr. Wood had
intent to defraud and, therefore, you must enter a verdict of
guilty.
4

intent.

The Court's refusal to give

discussion.

They

declined to give

are

them.

requests 9, 11 and 12 requires lit

clearly argument

and

the

Court

correc

See United States v. Gonzalez, 933 F.2d 4

___ __________________________

446 n.19 (7th Cir. 1991).

We review the failure to read proposed instruction 10 in light
the record as a whole, considering the charge as given.

United Sta
__________

v. Nivica, 887 F.2d 1110, 1124 (1st Cir. 1989), cert. denied, 494 U
_________
____________

1005

(1990).

Although

defendant

instruction on his or her theory

is

entitled

to

request

of the case, United States v. Noo

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913 F.2d 20, 30 (1st Cir. 1990), cert. denied, 111 S. Ct. 1686 (199
____________
a trial court's refusal to
instruction (1)

give it is reversible error only

is substantively

correct; (2) was

if "'

not substantiv

covered in the charge actually delivered to the jury; and (3) conce
an important

point

in the

seriously impaired
given defense.'"
Cir.)(quoting

trial

so that

the defendant's

the

failure to

ability to effectively

United States v. Gibson, 726

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United States v. Grissom,

________________________

give

presen

F.2d 869,

645 F.2d 461,

874 (

464 (5th C

1981)), cert. denied, 466 U.S. 960 (1984).

____________
The trial judge properly declined to
with

request number

implies

that delivery

10.
of

First, it
a signed

instruct the jury in

is not
but

accurate.

unrecorded deed

sufficient to transfer ownership of the property.

cites, however, hold
and

binding

between

only that
the

an unrecorded deed

The requ
is

alw

The cases appell

may be

grantor and grantee, without

acc

effect

discussing

the effect of such a transfer

on third parties.

See B
___ _

v. Babcock, 36 Me. 491, 493 (1853); Lawry v. Williams, 13 Me. 281,

__________
_________________
(1836).

Indeed,

states

that an

the

recording statute

unrecorded conveyance

cited by

is not

appellant clea

effective

party except the grantor and those with actual notice.

Ann. tit.

33,

201 (West

1988).

against

Me. Rev. St

Neither the cases

nor the stat

support the broad concept of "ownership" advanced by appellant.

Second,
was

properly rejected

judge

property.

whether or

when

because it is

not

it

Because record

deprive

another

misrepresentation of
and

number 10

irrelevant to

of

the law

this case.

record title is
____________

represents

full

a form

legal title
____________

to

title is something of value,

the intent

such

deception

title

facts constitutes

by

means

of

fraudulent intent.

Timo

Daniel indisputably held record title to the real estate at is

defendant

sought to

obtain their

Philip recovered and recorded

rights in
long

accurately stated

instructed, without objection, that

property

to

even if request

signatures.

the alleged return deeds they

the real estate, enforceable

as those

forged

deeds remained

against any third

unrecorded Timothy

Un
thus

party.

and Daniel

had

interest in land of which they could be defrauded.

Finally, the charge

given was sufficient to frame the defendan

theory of the case for the jury.

instructions

regarding

the

good

The court gave detailed and compl

faith

defense,

defining

"hon

intention"

and

"good

faith,"

and

explaining

that

"good

fa

constitutes a complete defense to one charged with an offense of wh

fraudulent intent

is an essential element."

In sum, we find no er

in

the

trial

court's

failure

to

read

defendant's

reques

instructions 9, 10, 11 and 12.

Appellant next claims error in the

admission of the testimony

former members of his office staff in the prosecution's rebuttal ca

In

particular,

he

appellant signing
witnessing and

objects

to

statements

names other than

his own to

notarizing signatures

that he had asked them

that they

had

documents as

without the signatory

to perform similar acts and, in

obser

well

prese

one instan

to back date a deed involving Daniel Spang.

Although the government argues
contemporaneous objection,
defense counsel
evidence.
objections:
obtain

did

that appellant, by failing to m

has not

generally

preserved this issue

and

timely object

to

for appe
the

rebut

Before the testimony was admitted the defense raised th

(1) because

appellant admitted

"duplicate" signatures

irrelevant to any

on deeds,

disputed fact;

that he

the rebuttal

(2) the prejudicial

had sought
testimony
effect of

evidence outweighed its probative value; and (3) rebuttal was impro
because appellant had offered no character evidence.
The conduct of a trial, including
introduction of

rebuttal evidence, resides with

of the trial judge.

436, 442 (1st
that

decisions whether to permit

Borges v. Our Lady of the Sea Corp., 935

_____________________________________

Cir. 1991).

discretion.

the sound discret

The

"Rebuttal

record before us evinces

evidence may

Laboy,
_____
his

909 F.2d 581,

effort

to

588 (1st Cir. 1990).

procure

unauthorized

no abuse

be introduced

repel, contradict or disprove an adversary's proof."

to expla

United States
_____________

Appellant testified t

signatures

was

"one

occurrence."

The proffered evidence thus

directly contradicted

testimony of appellant himself.

It was also

issue of

thus admissible

appellant's intent and

Fed. R. Evid. 404(b).

the probative

value

highly relevant on
under Rule

404(

Moreover, the trial court's careful weighing

and prejudicial

comported with Rule 403.

effect

Fed. R. Evid. 403.

of the

evidence

fu

"By design, all evide

is meant to be prejudicial; it is only unfair prejudice

which must

avoided."

United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (

__________________________________

Cir. 1989).
Finally, appellant asserts error
a

curative instruction

during
to
545

closing argument.***

to a

The trial

comment by
court has

control the scope of closing arguments.

F.2d 764, 767

conclude that
instance.

trial.

(1st Cir. 1976).

the Court below

and fell properly

Having reviewed

refusal

to

broad discret

the record,

its discretion in

within the scope

give

the prosecu

answer to the closing argument

Therefore, neither the prosecutor's

the Court's

refusal to is

United States v. Wilb

_____________________

did not abuse

The comment was made in

the defense

nor

in response

in the Court's

of issues

raised

question during argum

a curative

instruction

provi

grounds for reversal.

The judgment of conviction is affirmed.

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*** Referring to the testimony of one of appellant's former employe

the prosecutor asked, "[i]f that is sloppy practice, ladies
gentlemen, where does the line of criminal act begin?"
9