Appeal from the Superior Court of the District of Columbia (CF2-7088-08) (Hon. Robert E. Morin, Trial Judge)
The opinion of the court was delivered by: Belson, Senior Judge:
Before BLACKBURNE-RIGSBY, Associate Judge, REID, Associate Judge, Retired, and BELSON, Senior Judge.
Appellant Bachar Youssef was convicted of first-degree fraud*fn1 and first-degree theft*fn2 following a three-day jury trial. On appeal, he contends his charges merge under the Double Jeopardy Clause and that the trial court plainly erred by failing to provide, sua sponte, a unanimity instruction for both of his charges. We affirm.
From September 7 through 13, 2007, appellant engaged in a series of transactions, which in the aggregate allowed him to overdraw approximately $16,000 from his Chevy Chase Bank account. During this one-week period, appellant wrote sixteen checks, payable to himself, from accounts he owned at Discover, PNC Bank and Wachovia Bank. Appellant's balances and lines of credit at these institutions were insufficient to satisfy the checks.*fn3 Nevertheless, appellant deposited the checks into his Chevy Chase account at various locations throughout the District of Columbia.
Appellant's Chevy Chase account balance became artificially inflated due to the bad checks because Chevy Chase followed the practice of advancing credit to a patron's account for deposits that had not yet cleared. This enabled appellant to make twenty-nine withdrawals from his Chevy Chase account throughout the one-week period and withdraw thousands of dollars beyond the $358.10 balance and $2,500 line of credit he actually maintained at that bank.*fn4 When interviewed by a Secret Service Agent two months later, appellant acknowledged that he had "messed up" and admitted to gambling the money at Atlantic City.*fn5
On July 29, 2009, appellant was indicted for first-degree fraud, second-degree theft and eleven counts of first-degree theft. The fraud charge was predicated upon appellant's overarching scheme or systematic course of conduct throughout the entire week, while his various first-degree theft counts were premised upon appellant's individual withdrawals of over $250. The indictment specified neither the precise time nor the amount of appellant's incriminating withdrawals. It distinguished each first-degree theft count only by listing the particular day on which the withdrawal occurred. Thus, because appellant made multiple withdrawals of over $250 on certain days, some of his first-degree theft counts were indistinguishable from others on the face of the indictment.
The trial court noted this problem on the first day of trial and questioned whether the identical counts of first-degree theft would cause juror confusion or require a special unanimity instruction. The trial court then suggested that the indictment be amended to allege only one count of first-degree theft per day on the theory that each first-degree theft count would represent "one series of transactions constituting a theft for that day." When asked to comment, defense counsel stated, "I would like one count for all the [t]hefts and that's my preference. My second preference would be one count per day." While entertaining these options, the trial court advised defense counsel that what the prosecutor "doesn't want . . . is an objection by you that if it's just one count per day or one count overall, that there's a unanimity objection from you. . . ." Defense counsel indicated that she understood, saying "That's right."
After further discussions, defense counsel stated that if the indictment was not amended, "the Government [would] have [to] start specifying checks and withdrawals[,]" but indicated this would not be necessary if the indictment alleged only one first-degree theft count per day. After considering the unanimity issues, defense counsel stated, "I don't see how either this Defense Counsel or some other appellate counsel in the event of conviction [could raise a question regarding unanimity], if you reduce it by day and there's sufficient evidence . . . . But I don't think there could be a question of unanimity . . . if we do it by day."
That evening, the parties engaged in an e-mail exchange, in which they
apparently agreed upon an amendment to the indictment.*fn6
The following day, the government stated that it would amend
the indictment so that it alleged only one count of first-degree fraud
and one count of first-degree theft, predicated upon appellant's
transactions from September 7 to the 13. Defense counsel expressly
noted that she did not object to this proposed amendment.
When the government rested its case-in-chief later that day, defense counsel moved to have the government "elect between" proceeding on either the fraud or the theft count under Double Jeopardy principles. In so moving, defense counsel argued that the new theory of theft effectively made it a scheme, which rendered it substantively identical to appellant's first-degree fraud charge. This motion was denied and the trial proceeded. Later that day, the government formally moved to amend the indictment as agreed, and defense counsel again stated that she had no objection. Thereafter, the trial court formally accepted the amendment.
On the final day of trial, the trial court gave the jury instructions on the elements of first-degree fraud and first-degree theft, to which defense counsel offered no objection. The trial court also provided a general unanimity instruction, informing the jury that "The verdict must represent the considered judgment of each juror. In order to return a verdict, each juror mu[st] agree to the verdict. The verdict must be unanimous." As the jury retired to deliberate, defense counsel alerted the court of a scrivener's error on the verdict form, pointing out that it should read that the theft allegedly occurred from September 7 to 13, rather than 8 to 13. The trial court noted this error and revised the verdict form so that it read: "As to the charge of theft of property of $250 or more on September 7, 2007 through September 13, 2007, from Chevy Chase Bank, how do you find the defendant"?
The jury returned a verdict that same day, convicting appellant of fraud and theft. Appellant was sentenced to two concurrent terms of one-year imprisonment with eight months suspended, eighteen months of supervised ...