USCA1 Opinion

[NOT FOR PUBLICATION]

United States Court of Appeals

For the First Circuit

____________________

No. 96-1827

UNITED STATES,
Appellee,

v.

EVELYN LHERISSON,
Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

___________________

____________________

Before

Boudin, Circuit Judge,

_____________

John R. Gibson,* Senior Circuit Judge,

____________________

and Pollak,** Senior District Judge.

_____________________

_____________________

John L. Roberts, by appointment of the Court, for appellant.

_______________
Andrew Levchuk,
______________
Donald K. Stern,
_________________

Assistant United States Attorney, with whom

United

States Attorney,

appellee.

____________________

was

on

brief

for

December 2, 1997
____________________

____________________

**

Of the Eighth Circuit, sitting by designation.

Of

the

Eastern

District

of

Pennsylvania,

sitting

by

convicted of

one

designation.

Per Curiam.
Per Curiam.
___________

Evelyn Lherisson

was

count of bank

counts

of

financial

fraud, in violation of 18 U.S.C.

making

institution, in

appeal she

assistance

evidence

four

statements

in

of

fraud,

of counsel,

and

her

(2)

which she

but

that

(3)

to support the jury s

counts of

federally

18 U.S.C.

not

she

that

the

more

was

findings of guilt

was convicted.

On

in selective

received

there

insured

1014.

the government engaged

prosecuting

the

to

violation of

argues that (1)

prosecution

principal

false

1344, and three

Because

culpable

ineffective

insufficient

on any of the

we find

no

reversible error, we affirm.

I.

In July

herself as the

of 1988, Evelyn

Lherisson, who

trustee of a substantial family

represented

trust located in

the Cayman Islands (the "LPH trust"), was introduced to Mary Anne

Krupsak, a

partner in the Albany office of

a New York law firm.

At the time, Krupsak was a shareholder in Valyte International, a

small

corporation

Lherisson

that

told Krupsak

was

that

undergoing

she was

financial

interested

difficulty.

in using

her

family trust s assets to help small businesses such as Valyte and

gave Krupsak various

documents that purported to confirm some of

the trust s assets.

In the

Heritage

NIS-Bank

fall of

for

1988, Valyte

Savings concerning

credit Heritage had extended to Valyte.

on the line

began negotiations

of credit and Heritage

-2-2-

$350,000

with

line of

Valyte had drawn heavily

had lost some

confidence in

Valyte s ability to pay its debts.

and

the other

Audette

and

possibility

shareholders met

Heritage

of

with

attorney

individual

On December 27, 1988, Krupsak

Heritage officer

Steven

Weiss

Valyte

to

Michael

discuss

shareholders

the

providing

additional collateral

for the loans in exchange for Heritage not

calling

obligations.

in

Valyte s

At

that

meeting

Krupsak

informed Audette and Weiss that Evelyn Lherisson might be able to

assist

in

providing

collateral

for

Valyte s

obligations

to

Heritage.

advised

Audette then spoke

him that

she would

on the phone with

obtain a

letter of

Lherisson, who

credit for

$1

million as additional collateral for the Valyte loan.

On December

29, 1988,

made out

to Krupsak and

Garland,

Texas, was

that

wanted

it

beneficiary

related

instead

drawn on

faxed to

the

a $1

letter

of

million letter of

the First Investment

Heritage.

modified

Krupsak.

Heritage

to

Krupsak

name

credit

Bank of

told Krupsak

Heritage

testified

as

that she

this request, along with other proposed modifications to

the December 29, 1988 letter of credit, to Lherisson, who replied

that she would

new letter

Lherisson s

not modify the letter

of credit to

plan to

send

replace it.

a new

but that she would

send a

Krupsak told Heritage

letter of

credit

and, as

of

an

interim measure, assigned her interest

in the December 29,

1988

letter of credit to Heritage.

On

March

bearing the signature

constituting

$1

24,

1989,

Heritage

received

of Lherisson as trustee of

million

letter

of

credit

document,

the LPH trust,

to

Heritage.

-3-3-

Thereafter,

Lherisson and

Krupsak

commenced negotiations

with

Heritage for a

of

the LPH

trust.

application,

Agreement"

which

$4 million loan to Valyte to be secured by assets

April 29,

Krupsak faxed

and a

were

received a

On

1989, in support

copy

of

separate specimen

signed by

"Trust

Lherisson.

letter, signed

Lherisson, which stated

an

On

"Irrevocable

Trust

Agreement" both

May 8,

1989,

by Krupsak s secretary

that the proposed $4

of the loan

of

Heritage

on behalf

of

million loan would

be collateralized by United States Treasury notes.

At

neither the

ever existed.

trial,

the

government

First Investment Bank

introduced

of Garland nor the

The tax identification

number used by

for the LPH trust was not assigned to any person or

the registrar of the Cayman

evidence

that

LPH trust

Lherisson

business and

Islands testified that no such trust

was registered with his

office.

A handwriting

expert testified

that the signature on the March 24, 1989 letter of credit

fact

Lherisson s, and

never signed or

Krupsak s

secretary

sent any correspondence

was in

testified that

on behalf of

she

Lherisson

without being directed to do so by Lherisson herself.

The jury

fraud, in

making

found Lherisson guilty

violation of

false

institution,

18 U.S.C.

statements

in

to

violation of

statement counts were

1344,

of one count

and three

counts of

financial

federally

insured

18

U.S.C.

1014.

based on:

1) the $1

of bank

The

false

million December 29,

1988 letter of credit; 2) the $1 million March 24, 1989 letter of

credit; and 3) the May 8, 1989 letter.

-4-4-

Post-trial,

examination.

Lherisson

psychiatric

At sentencing, Lherisson s attorney

asserted that

suffered

diminished mental

with

Krupsak

Lherisson to 15

Lherisson

from

delusions

state during

and

underwent

and

the time

Heritage.

The

was

she was

district

months imprisonment and three

release.

II.

operating

in

communicating

court

years

sentenced

supervised

Lherisson

advances

three

arguments

in this

appeal.

First, Lherisson argues that her convictions arose from selective

prosecution

indigent

because the government

black

disability")

woman who

and not Mary

was

chose to prosecute

suffering from

Anne Krupsak (a

that she

received

Third, Lherisson claims

ineffective

severe mental

"white, non-disabled

person" with "political and financial clout").

claims

her ("an

Second, Lherisson

assistance

that there was insufficient

of

counsel.

evidence to

support the jury s verdict.

Lherisson did not raise her selective prosecution claim

prior to

trial

as required

by

Fed.

R. Crim.

P.

12(b),

and

therefore has waived this claim, Fed. R. Crim. P. 12(f), see also
________

Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984), cert.
______
_____________
_____

denied, 469
______

exist

U.S. 1109 (1985), unless "exceptional circumstances"

which excuse

fashion.

her failure to

raise the claim

in a timely

See United States v. Gary, 74 F.3d 304, 313 (1st Cir.),

___ _____________
____

cert. denied, 116 S. Ct. 2567 (1996).

____________

claim of selective

Lherisson argues

prosecution became manifest only

-5-5-

that her

after trial

when

the District

Court

ordered and

obtained

reports on

her

mental condition.

Lherisson attributes her failure to undergo psychiatric

evaluation (and hence her failure to raise the claim of selective

prosecution) prior to trial

counsel.

However,

ineffective

Lherisson

did

not

raise

the

trial

claim

of

assistance of counsel before the district court, and

therefore we are

left without the factual

for adequate

review.

practice

not

raised

to the ineffectiveness of her

of

for the

Carrington, 96
__________

Ct. 1328 (1997).

Accordingly, we will

addressing claims

first

development necessary

time on

F.3d 1, 6 (1st

of

appeal.

follow our customary

ineffective

See
___

assistance

United States
_____________

v.

Cir. 1996), cert. denied, 117 S.

_____________

Our declination to consider this

issue now is

without prejudice to

in a collateral

Lherisson s entitlement to raise

challenge to her conviction.

the issue

See United States

___ _____________

v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993).

____

In her

final claim,

Lherisson argues

that there

insufficient evidence to support the jury s verdict.

takes two

forms.

convicted

of aiding and abetting without

principal.

the

First,

However,

jury in

she

asserts that

This

she could

not

be

evidence of a culpable

18 U.S.C.

2(b),

which provides

that:

[w]hoever willfully causes an

act to be done

which if directly performed by him or another

be

claim

on each count the district court instructed

conformity with

would

was

an

offense

against

the

States, is punishable as a principal.

United

18 U.S.C.

2(b).

Under

this section, a culpable

principal is

-6-6-

not required.

"[A] defendant may

be convicted as

an aider and

abettor through proof that he caused an innocent person to commit

a criminal

842

n.26

omitted),

offense."

United States v. Tashjian, 660

______________
________

(1st Cir.)(alterations

cert. denied,
____ ______

454 U.S.

and

internal

F.2d 829,

quotation marks

1102 (1981); see also United

_________ ______

States v. Dodd, 43 F.3d 759, 762-63 (1st Cir. 1995).

______
____

Lherisson

that

also argues that the government did not show

her statements

to Heritage

defraud.

Where

evidence,

this court

were made

a defendant challenges

must

look to

with the

the sufficiency

see

a reasonable

doubt."

Rivera, 115 F.3d 1060, 1063 (1st

______

dispute

that the

December 29, 1988,

Audette

Valyte s

trust never

Cir. 1997).

existed and

all

could find

United States v.
_____________

March 24, 1989, and

of the

"whether, drawing

inferences in the government s favor, a rational jury

guilt beyond

intent to

Montilla_________

Lherisson does not

that the

May 8, 1989

letters of

were false.

and Krupsak both testified that Lherisson was aware that

negotiations

preventing Heritage from

with

Heritage were

for

the

calling in Valyte s loans

purpose of

or obtaining

new loans for Valyte.

Lherisson

knew the

statements

Heritage at

use the

about the

A jury could have reasonably inferred that

trust

did

not exist

trust to

Krupsak

a time she knew that they

trust s assets to

Heritage, Lherisson

and

negotiations with

verdict is therefore supported by sufficient evidence.

-7-7-

of

believed she was going to

defraud Heritage.

III.

making

and representatives

help Valyte in its

intended to

that, in

The

jury s

For the foregoing reasons, the judgment of the district

court is affirmed.

-8-8-