United States v. Abbey ( 1998 )


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  •                                                                                F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 5 1998
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                              No. 97-1284
    (D.C. No. 95-CR-214-01-N)
    DENNIS R. ABBEY,                                               (D. Colo.)
    Defendant-Appellant.
    ORDER AND JUDGMENT*
    Before HENRY, BARRETT, and BRISCOE, Circuit Judges.
    Defendant Dennis R. Abbey appeals his convictions and sentences for twelve
    criminal offenses arising out of his misconduct while a fiduciary responsible for
    overseeing the financial affairs of eighteen incompetent military veterans. We exercise
    jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirm.
    I.
    Abbey is a resident of Longmont, Colorado, and a veteran of the Vietnam war. He
    began working for Boulder County, Colorado, in July 1974 as a veterans service officer,
    *
    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    assisting veterans and their dependents in filing claims. In 1985, Abbey was persuaded
    by employees of the Veterans Administration (VA), in particular VA attorney John
    Lancelot, to act as a fiduciary for incompetent veterans. This fiduciary role, which was
    entirely separate from his position with Boulder County, involved overseeing the
    financial affairs of veterans who for various reasons were unable to manage their own
    financial affairs. The VA often appointed banks to act as fiduciaries, but such
    arrangements did not work well with veterans who had severe emotional problems.
    Colorado state law prohibited fiduciaries other than banks or trust companies from
    having more than five wards, but VA employees occasionally bypassed the law by
    appointing a fiduciary in name only and then having another person act as de facto
    fiduciary. Lancelot persuaded Abbey to act as fiduciary for more than five veterans. The
    VA appointed Abbey’s wife as fiduciary for six veterans and appointed Charles Keeran,
    Abbey’s friend, as fiduciary for seven veterans. The primary responsibility of the named
    fiduciaries was to sign blank checks for Abbey, who acted as de facto fiduciary for all of
    the veterans.
    Abbey did not receive any formal training concerning his fiduciary duties.
    Lancelot advised Abbey whenever questions arose and effectively acted as Abbey’s legal
    advisor until Lancelot retired. Lancelot specifically advised Abbey to petition in state
    court to be appointed guardian for several veterans; however, he generally advised Abbey
    to act as de facto guardian for all of the veterans. In his role as both actual and de facto
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    fiduciary, Abbey controlled the finances of the eighteen veterans. Abbey received their
    benefit checks and had discretion to spend the funds in any manner he concluded would
    benefit the veterans. Abbey was to insure that the veterans had housing, clothing, food,
    and other basic necessities. He also exercised his discretion to purchase other items for
    the veterans, such as vehicles and baseball tickets, and he made charitable contributions
    on behalf of the veterans. Abbey submitted an annual accounting to the VA for each
    veteran, summarizing how each veteran’s funds were spent.
    In return for his work as a fiduciary, Abbey was entitled to an administrative fee
    under Colorado law equal to five percent of each veteran’s income. He submitted, at
    Lancelot’s urging, at least one petition for extraordinary fees for additional services. In
    addition to the regular administrative fee, Abbey also routinely charged the veterans for
    time he and others spent visiting or caring for the veterans. It is unclear whether any of
    these charges were submitted for approval in state court.
    Beginning in approximately October 1989 (roughly coinciding with Lancelot’s
    absence from work because of cancer and his subsequent retirement), Abbey began to
    engage in a variety of questionable practices. For example, he asked Margaret Schaefer-
    Sachs, a licensed social worker, to continue billing veterans for counseling services after
    she had moved to California. According to Schaefer-Sachs, Abbey told her he was
    counseling many of the veterans without compensation and it would be a conflict of
    interest for him to personally submit bills to the veterans for counseling. Abbey called
    -3-
    Schaefer-Sachs on a regular basis to tell her the alleged hours he spent with each veteran
    and she prepared and submitted corresponding bills to Abbey, as if she had performed the
    counseling services. Abbey then wrote checks on the veterans’ accounts payable to
    Schaefer-Sachs and deposited the checks in an account she maintained in Colorado.
    Schaefer-Sachs signed blank checks on her Colorado account and sent them to Abbey so
    he could withdraw his share (he took $50 of every $60 charged). Between January 1990
    and March 1993, approximately $75,000 was deposited in the Colorado account pursuant
    to this arrangement, of which Schaefer-Sachs received approximately $15,000 and Abbey
    received the remainder.
    Abbey engaged in other uses of the veterans’ funds which directly or indirectly
    benefited him. In 1991, he donated a total of $2,000 from several veterans’ accounts to
    the local Disabled American Veterans (DAV). Abbey was a member and officer of the
    local DAV and had signature authority over its checking account. Shortly after the
    donations were made, DAV funds were used to purchase a fax machine which was
    donated to the office where Abbey worked. Notably, the DAV check for the fax machine
    was signed by Abbey. Subsequently, Abbey made several donations to the DAV on
    behalf of several of the veterans totaling approximately $13,000. The DAV used the
    funds to send Abbey on three trips to Vietnam.
    A seventeen-count indictment was returned against Abbey and Schaefer-Sachs on
    June 15, 1995. Count 1 charged the two with conspiracy to make false statements (18
    -4-
    U.S.C. §§ 371, 1001, 2); counts 2 through 5 charged Abbey with embezzlement of VA
    funds (
    38 U.S.C. § 6101
    , 
    18 U.S.C. § 2
    ); counts 6 through 9 charged Abbey with making
    false statements (
    18 U.S.C. §§ 1001
    , 2); counts 10 through 13 charged Abbey with wire
    fraud (
    18 U.S.C. §§ 1343
    , 2); count 14 charged Abbey with money laundering (
    18 U.S.C. §§ 1956
    (a)(1)(B)(i), 2); and counts 15 through 17 charged Abbey with making false
    statements on a tax return (
    26 U.S.C. § 7206
    (1)). Schaefer-Sachs pleaded guilty to count
    1 and agreed to testify against Abbey. Abbey’s motions for judgment of acquittal as to
    counts 5 and 14 were granted. He was convicted by jury of counts 1, 2, 6 through 9, 11
    through 13, and 15 through 17, and was acquitted on the remaining three counts. Abbey
    was sentenced to 46 months’ imprisonment, a $10,000 fine, and three years’ supervised
    release.
    II.
    Calculation of loss as to count 1
    The district court concluded the veterans received nothing for the money paid to
    Abbey and Schaefer-Sachs for the billed counseling services. Accordingly, under
    U.S.S.G. § 2F1.1(b)(1), the court concluded the loss associated with count 1 was the
    entire $79,227.46 paid by the veterans for the billed counseling services. Abbey contends
    he actually performed services for the veterans in exchange for the money and that the
    value for those services must be subtracted from the total payments. He further contends
    the court erred in requiring him to prove he actually performed work for the money rather
    -5-
    than requiring the government to prove the opposite.
    We review a district court’s interpretation of the guidelines de novo and the court’s
    factual findings for clear error, giving due deference to its application of the guidelines to
    the facts. United States v. Janusz, 
    135 F.3d 1319
    , 1324 (10th Cir. 1998). With respect to
    a district court’s determination of a U.S.S.G. § 2F1.1 loss in particular, we apply a clear
    error standard. United States v. Yarnell, 
    129 F.3d 1127
    , 1136 (10th Cir. 1997).
    “Loss, under § 2F1.1(b)(1), ‘is the value of the money, property, or services
    unlawfully taken.’” Janusz, 
    135 F.3d at 1324
     (quoting U.S.S.G. § 2F1.1, comment n.7).
    We interpret “loss” to “mean the ‘net value, not the gross value, of what was taken.’”
    United States v. Pappert, 
    112 F.3d 1073
    , 1079 (10th Cir. 1997) (quoting United States v.
    Gennuso, 
    967 F.2d 1460
    , 1462 (10th Cir. 1992)). Accordingly, in cases where a victim of
    fraud has received something of value from the defendant, the net value is determined by
    subtracting the value received by the victim from the gross value of what was
    fraudulently taken. However, we have not required a sentencing court to factor in
    “money subsequently returned to victims.” 
    Id.
     Because amounts of loss over $2,000
    increase a defendant’s base offense level for crimes involving fraud and deceit, the
    government bears the burden of proof on the loss amount. Yarnell, 
    129 F.3d at 1136
    .
    To meet its burden of proof on the amount of loss issue, the government presented
    evidence indicating the veterans paid a total of $79,227.46 to Schaefer-Sachs and Abbey
    pursuant to the fraudulent billing scheme they created and executed. The government
    -6-
    also incorporated the evidence presented at trial, which included testimony from several
    veterans suggesting they received little or no counseling from either Abbey or Schaefer-
    Sachs. Based upon this evidence, as well as the fraudulent nature of the billing scheme
    itself, the government argued the veterans received nothing of value for their money.
    Abbey attempted to rebut this evidence by presenting exhibits and testimony indicating he
    performed $80,245.12 worth of services under Schaefer-Sachs’ name and performed
    2483.5 hours of work for the veterans for which he was not compensated.
    In finding the amount of loss associated with count 1 was $79,227.46, the district
    court rejected entirely the evidence presented by Abbey, concluding it was “palpably
    false” and “unreliable in every respect.” The court challenged Abbey’s methodology for
    reconstructing the number of hours of work he performed for the veterans, noted there
    were inconsistencies between Abbey’s trial testimony and sentencing testimony, noted
    there were numerous inconsistencies in documentation Abbey submitted at sentencing,
    and emphasized Abbey knew how to properly bill for services, including any counseling
    services he may have performed. Ultimately, the court found “[n]either Abbey,
    Schaefer[-Sachs], nor anyone else really gave the veterans anything of value for this
    money.” Record I at 56.
    Based upon our review of the record, we conclude the district court’s findings on
    this issue are not clearly erroneous. The amount of money paid by each veteran pursuant
    to the fraudulent billing scheme is essentially uncontroverted. Thus, the only factual issue
    -7-
    for purposes of determining the net value of the loss is whether the veterans received
    anything of value in return for their money. Critical to this issue was Abbey’s credibility.
    In light of the nature of the scheme itself, and in light of Abbey’s implausible explanation
    for engaging in the scheme (i.e., to keep track of how many hours of supervision he
    received from Schaefer-Sachs so he could become a licensed counselor), we believe it
    was entirely appropriate for the district court to reject outright Abbey’s testimony and
    evidence on this point and conclude the veterans received nothing of value for their
    money.
    We also find no merit to Abbey’s complaint that the district court shifted the
    burden of proof to him on the amount of loss. During the sentencing hearing, the court
    clearly indicated the government bore the burden of proof on the amount of loss with
    respect to count 1. Record XI at 3039-40 (“the law is pretty clear that net loss is the
    Government’s burden”).
    Obstruction of justice enhancement
    In calculating Abbey’s sentence, the district court enhanced his offense level by
    two levels pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. In imposing this
    enhancement, the court found Abbey willfully prepared and filed materially false
    information with the court concerning the amounts of loss associated with the conspiracy
    and the tax-related counts in an attempt to reduce his overall sentence. With respect to
    -8-
    the exhibit Abbey prepared and filed concerning the amount of loss related to count 1, the
    court found “repeated patterns of falsity throughout the exhibit,” including
    (a) repeated billing for time spent on veterans’ affairs, when the time could
    not possibly have been spent--because Mr. Abbey was touring Vietnam; (2)
    repeated billing of hours for time spent on veterans’ affairs, when the time
    could not have been spent--because Mr. Abbey was at a series of out-of-
    state conferences in this country; and (3) billing for time spent [on] the
    affairs of multiple veterans on the same day, resulting in implausible
    twenty-hour days or impossible days in excess of twenty-four hours.
    Record I at 54. On appeal, Abbey contends the court erred in imposing this obstruction of
    justice enhancement. According to Abbey, any errors in the sentencing exhibits he
    prepared were simply mistakes and were not the result of any intent to willfully disobey
    or disregard the law.
    In reviewing a district court’s decision to impose an obstruction of justice
    enhancement pursuant to § 3C1.1, we review the underlying factual findings for clear
    error and the legal conclusions de novo. United States v. Shumway, 
    112 F.3d 1413
    , 1424
    (10th Cir. 1997). Section 3C1.1 provides for a two-level upward adjustment “[i]f the
    defendant willfully obstructed or impeded, or attempted to obstruct or impede, the
    administration of justice during the investigation, prosecution, or sentencing of the instant
    offense.” Obstruction of justice includes “producing . . . a false . . . document or record
    during an official investigation or judicial proceeding.” U.S.S.G. § 3C1.1, comment n.
    3(c).
    After reviewing the record on appeal, we conclude the district court’s factual
    -9-
    findings on this issue are not clearly erroneous.1 Although it is conceivable a large
    exhibit summarizing detailed time expenditures may contain innocent mistakes, the
    inconsistencies in the exhibits produced by Abbey and submitted to the district court were
    so glaring it was entirely reasonable for the court to conclude they were “palpably false”
    and “unreliable,” and were the product of a willful attempt to “mislead[] the court into
    minimizing defendant’s sentence.” Record I at 54, 69.
    Excusing prospective juror
    Abbey contends the district court abused its discretion and violated the Jury
    Selection and Service Act of 1968, 
    28 U.S.C. §§ 1861-77
    , by granting the government’s
    challenge for cause and excusing Thanh Kay Vu from the jury panel. According to
    1
    Abbey makes a passing reference in his opening brief to the appropriate standard
    of proof on this issue. In particular, he points to language in Application Note 1 to the
    applicable version of § 3C1.1 which states: “In applying this provision in respect to
    alleged false testimony or statements by the defendant, such testimony or statements
    should be evaluated in a light most favorable to the defendant.” Based on this language,
    he contends the proper standard of proof is “clear and convincing” rather than
    “preponderance of the evidence.” Although a few circuits have apparently agreed a
    “clear and convincing” standard applies when a sentencing court is relying on a
    defendant’s perjury as a basis for the obstruction of justice enhancement, see, e.g., United
    States v. Walsh, 
    119 F.3d 115
    , 121 (2d Cir. 1997); United States v. Gaviria, 
    116 F.3d 1498
    , 1518 (D.C. Cir. 1997), cert. denied, 
    118 S.Ct. 865
     (1998), this circuit has not
    decided the issue. In all other contexts, we have held the appropriate standard of proof
    for obstruction of justice enhancement is a preponderance of the evidence. United States
    v. Pelliere, 
    57 F.3d 936
    , 938 (10th Cir. 1995). Ultimately, we find it unnecessary to
    decide whether a “clear and convincing” standard of proof applies in cases involving a
    defendant’s perjury because the enhancement in this case is not based on defendant’s
    testimony, but rather on false documents he prepared and submitted to the court.
    -10-
    defendant, “the scope of voir dire was inadequate to permit the court to make an informed
    judgment as to whether Mr. Vu could sit as an impartial juror,” and the court “made no
    attempt to elaborate on or to reiterate the jury instruction regarding reasonable doubt or
    the presumption of innocence as was suggested by defense counsel.” Br. at 26, 28.
    A trial court’s decision to strike a juror for cause is reviewed on appeal for abuse
    of discretion. United States v. Contreras, 
    108 F.3d 1255
    , 1265 (10th Cir.), cert. denied,
    
    118 S.Ct. 116
     (1997). Any questions involving interpretation of the Jury Selection and
    Service Act of 1968 are reviewed de novo. 
    Id.
     “Under the Jury Selection and Service
    Act of 1968, . . . any person is qualified to serve on grand and petit juries in the district
    court unless, inter alia, that person ‘(2) is unable to read, write, and understand the
    English language with a degree of proficiency sufficient to fill out satisfactorily the juror
    qualification form; [or] (3) is unable to speak the English language.’” United States v.
    Dempsey, 
    830 F.2d 1084
    , 1087 (10th Cir. 1987) (quoting 
    28 U.S.C. § 1865
    (b)(2) and
    (3)). “[A] juror who fails to meet the statutory qualifications is subject to challenge ‘for
    cause.’” 2 Charles Alan Wright, Federal Practice and Procedure § 383, at 361 (2d ed.
    1982).
    There is no indication Vu was unable to satisfactorily complete the juror
    qualification form and it appears he met the statutory requirement set forth in
    § 1865(b)(2). Accordingly, the only conceivable basis for striking him for cause would
    have been an inability “to speak the English language.” In Dempsey, we acknowledged
    -11-
    the phrase “‘speak the English language’ is often used to mean ‘speak and understand
    spoken English,’” but refused to adopt this construction of the phrase for purposes of
    applying the Jury Selection and Service Act. 
    830 F.2d at 1087
    . Instead, we applied the
    phrase literally to refer only to a person’s speaking ability. Under Dempsey’s
    construction of § 1865(b)(3), it appears Vu satisfied the Act because he was able to speak
    the English language when questioned by the court.
    Assuming, arguendo, the district court abused its discretion in striking Vu from the
    panel for cause, Abbey is entitled to a new trial only if he can demonstrate actual
    prejudice resulting from the error. See United States v. Mills, 
    987 F.2d 1311
    , 1314 (8th
    Cir. 1993); United States v. Griley, 
    814 F.2d 967
    , 974 (4th Cir. 1987) (improper striking
    of prospective juror for cause subject to harmless error analysis). Notably, Abbey has not
    even attempted to argue actual prejudice and, after carefully reviewing the entire trial
    transcript, we are not convinced any prejudice resulted from Vu’s removal.
    Although Abbey attempts to argue the district court’s dismissal of Vu resulted in
    violations of the equal protection component of the Fifth Amendment and the fair cross-
    section requirement of the Sixth Amendment, we are not convinced such challenges are
    applicable where, as here, a potential juror is stricken for cause. See United States v.
    Elliott, 
    89 F.3d 1360
    , 1364-65 (8th Cir. 1996) (concluding “Batson applies only to
    peremptory strikes”), cert. denied, 
    117 S.Ct. 963
     (1997); United States v. Blackman, 
    66 F.3d 1572
    , 1575 n.3 (11th Cir. 1995) (same); United States v. Bergodere, 
    40 F.3d 512
    ,
    -12-
    515-16 (1st Cir. 1994) (“defendant must show that the challenge was peremptory rather
    than for cause” to invoke Batson). As the Eighth Circuit noted in Elliott, the
    extrapolation of the Batson2 framework to for-cause strikes “fails to recognize that
    peremptory strikes, for which no reasons need be given (absent a Batson challenge), are
    different from challenges for cause, which by definition require a showing of cause.” 
    89 F.3d at 1365
    . Even assuming, for purposes of argument, that Abbey’s Fifth and Sixth
    Amendment challenges are proper, we are not convinced a trial court’s abuse of
    discretion in striking a potential juror for cause, in and of itself, is sufficient to establish a
    prima facie violation of either the Fifth or the Sixth Amendment. See generally United
    States v. Gault, ___ F.3d ___, 
    1998 WL 177982
     at *2 (10th Cir. 1998) (outlining
    requirements to establish prima facie violation of the Sixth Amendment); Contreras, 
    108 F.3d at 1268
     (outlining requirements to establish prima facie violation of Fifth
    Amendment equal protection clause). Any error on the part of the district court in
    dismissing Vu for cause is harmless and does not entitle Abbey to a new trial.
    Trial judge’s conduct
    Abbey alleges that, during trial, the trial judge was openly hostile toward him, his
    defense counsel, and several defense witnesses, inappropriately curtailed testimony from
    Abbey and one of his defense witnesses (Dr. Carl Sternberg), and asked argumentative
    2
    Batson v. Kentucky, 
    476 U.S. 79
     (1986).
    -13-
    questions of witnesses and made unnecessary comments during testimony that conveyed
    his own impressions to the jury. Taken together, Abbey contends, these actions deprived
    him of his right to a fair trial.
    “A charge of misconduct by a trial judge ‘should not be lightly made and once
    made, should not be casually treated by a reviewing court.’” United States v. Welch, 
    745 F.2d 614
    , 620 (10th Cir. 1984) (quoting United States v. Cardall, 
    550 F.2d 604
    , 606 (10th
    Cir. 1976)). Charges of partiality or misconduct on the part of the trial judge “should be
    judged not on an isolated comment or two, but on the record as a whole.” United States
    v. Polito, 
    856 F.2d 414
    , 418 (1st Cir. 1988). A trial judge is “‘the governor of [a] trial for
    the purpose of assuring its proper conduct.’” 
    Id.
     (quoting Quercia v. United States, 
    289 U.S. 466
    , 469 (1933)). It is “beyond dispute” that a trial judge has authority to question
    witnesses. United States v. Albers, 
    93 F.3d 1469
    , 1485 (10th Cir. 1996). In particular,
    such questioning is appropriate when necessary to clarify testimony for the court and jury,
    or to correct misstatements by witnesses. See 
    id. at 1486
    . “[H]owever, . . . in exercising
    this power a judge must take care not to create the appearance that he or she is less than
    totally impartial.” 
    Id. at 1485
    . In addition to questioning witnesses, a trial court also has
    “broad discretion ‘to comment reasonably upon the evidence.’” United States v. Pearson,
    
    798 F.2d 385
    , 387 (10th Cir. 1986) (quoting United States v. Baker, 
    638 F.2d 198
    , 203
    (10th Cir. 1980)). Again, however, the trial court must “‘be[] careful not to become an
    advocate for any of the parties.’” 
    Id.
    -14-
    Before directly addressing Abbey’s arguments, we note he did not raise
    contemporaneous objections to some of the misconduct now alleged on appeal. Although
    he did move for a mistrial at one point in the proceedings, the trial judge’s alleged
    improper questioning of witness Kent Olsen occurred the day after the motion for
    mistrial. Similarly, the alleged improper comments made during Abbey’s own testimony
    occurred two days after the motion for mistrial had been denied. Because Abbey never
    renewed his motion for mistrial, any alleged misconduct that occurred after the denial of
    his motion for mistrial is subject to review only for plain error. See Fed. R. Crim. P.
    52(b).
    Having reviewed the entire trial transcript, we conclude the trial judge’s actions
    did not deprive Abbey of the right to a fair trial. It is without question the trial judge
    required counsel to ask proper questions and required witnesses to respond only to
    questions asked by counsel. In addition, the judge sometimes questioned witnesses from
    both sides and occasionally commented on evidence or exhibits. However, based on the
    entire record, it is clear he did not favor the prosecution. Moreover, the record
    demonstrates the judge was generally cordial to witnesses from both sides, and attempted
    to prevent any disputes that might harm Abbey in front of the jury. See, e.g., Record VIII
    at 2086 (out of presence of jury, trial judge instructed defense counsel to have Abbey
    watch his demeanor and responses during cross-examination so the judge would not have
    to interject and to “avoid hopefully confrontations in front of the jury”).
    -15-
    Sufficiency of evidence
    Abbey contends the evidence presented at trial was insufficient to support his
    convictions on counts 2, 6, and 7. We review de novo the question of whether the
    evidence at trial was sufficient. United States v. Ivy, 
    83 F.3d 1266
    , 1284 (10th Cir.
    1996). Viewing the evidence and the reasonable inferences therefrom in the light most
    favorable to the government, we ask whether a reasonable jury could find the defendant
    guilty beyond a reasonable doubt. We will reverse only if we conclude no reasonable jury
    could have reached the disputed verdict. 
    Id.
    Count 2--embezzlement of VA benefit funds. Count 2 of the indictment charged
    Abbey with violating 
    38 U.S.C. § 6101
     and 
    18 U.S.C. § 2
     by embezzling and
    misappropriating funds held by him in a fiduciary capacity for veteran Grant Totten.
    More specifically, the count charged Abbey with depositing into his own account a U.S.
    Treasury check that was a refund to Totten of money kept in a patient fund account at a
    VA medical center. On appeal, Abbey argues the evidence was insufficient to support his
    conviction on this count because it was uncontroverted he was never appointed as
    fiduciary for Totten’s estate.
    At the time the embezzlement/misappropriation occurred, the controlling statute,
    
    38 U.S.C. § 6101
    (a), provided:
    Whoever, being a guardian, curator, conservator, committee, or person
    legally vested with the responsibility or care of a claimant or a claimant’s
    estate, or any other person having charge and custody in a fiduciary capacity
    of money heretofore or hereafter paid under any of the laws administered by
    -16-
    the Department for the benefit of any minor, incompetent, or other
    beneficiary, shall lend, borrow, pledge, hypothecate, use, or exchange for
    other funds or property, except as authorized by law, or embezzle or in any
    manner misappropriate any such money or property derived therefrom in
    whole or in part and coming into such fiduciary’s control in any manner
    whatever in the execution of such fiduciary’s trust, or under color of such
    fiduciary’s office or service as such fiduciary, shall be fined in accordance
    with title 18 or imprisoned not more than five years, or both.
    To prove a violation of § 6101(a), the language of the statute itself suggests the
    government must demonstrate, in part, that the defendant was either “legally vested with
    the responsibility or care of a claimant or a claimant’s estate,” or was in “charge and
    custody in a fiduciary capacity of money . . . paid under any of the laws administered by
    the [VA] for the benefit of any minor, incompetent, or other beneficiary.” Although the
    statute does not define the term “fiduciary capacity,” Black’s Law Dictionary indicates a
    person acts in a “fiduciary capacity” when
    the business which he transacts, or the money or property which he handles,
    is not his own or for his own benefit, but for the benefit of another person,
    as to whom he stands in a relation implying and necessitating great
    confidence and trust on the one part and a high degree of good faith on the
    other part.
    Black’s Law Dictionary 625 (6th ed. 1990). Recently, the Second Circuit approved this
    very definition of “fiduciary capacity” in concluding a defendant was properly convicted
    of violating § 6101, even though he had never personally signed a fiduciary agreement
    with the VA. United States v. Zyskind, 
    118 F.3d 113
    , 117 (2d Cir. 1997) (defendant,
    administrator of home for handicapped adults, was placed in relationship of fiduciary
    with respect to funds paid by VA to home for care of veteran, even though defendant did
    -17-
    not personally sign fiduciary agreement with VA).
    Here, the evidence clearly indicates Abbey was acting in a “fiduciary capacity”
    toward Totten and his estate when he cashed the government check. Although Abbey had
    never been officially appointed as fiduciary for Totten, his friend Keeran was the
    appointed fiduciary for Totten, and, under the arrangement devised by Abbey and VA
    attorney Lancelot, Abbey acted as Totten’s de facto fiduciary. Accordingly, we conclude
    the evidence presented at trial was sufficient to support Abbey’s conviction on Count 2.
    Counts 6 and 7--false statements regarding Fred Ball’s estate. Counts 6 and 7 of
    the indictment each charged Abbey with violating 
    18 U.S.C. § 1001
     by making false
    statements to the VA regarding the estate of veteran Fred Ball. Count 6 alleged that on or
    about January 28, 1991, Abbey completed and submitted to the VA a form entitled
    “Statement in Support of Claim,” that fraudulently indicated a truck had been purchased
    for Fred Ball and his estate was below $20,000.3 Count 7 alleged that on or about May
    10, 1991, Abbey submitted to the VA an interim accounting on behalf of Ball that falsely
    indicated a Ford Explorer costing $24,915.16 had been purchased for Ball. On appeal,
    Abbey contends his convictions on these two counts must be reversed because the
    government did not produce sufficient evidence that any of the statements in the two
    3
    At that time, there was in effect the “$25,000 rule,” which compelled the VA to
    cease paying benefits to any veteran whose estate exceeded $25,000. According to the
    evidence presented at trial, it was apparently common for VA fiduciaries to spend down
    their veterans’ accounts to avoid application of the rule.
    -18-
    documents were “material.” With respect to Count 6, Abbey argues there was nothing in
    the January 28, 1991, document submitted to the VA that was “material” because “it had
    no bearing on whether the VA would or would not continue benefits payments [for Ball]
    until March 31, 1991.” Br. at 43. Similarly, as to Count 7, Abbey contends there was
    nothing in the May 10, 1991, accounting submitted to the VA that was “material”
    because, even though a Ford Explorer had not been purchased for Ball, a Ford Ranger
    truck had been purchased for him. According to Abbey, either vehicle purchase was
    sufficient to drop Ball’s estate below $25,000 and prevent the VA from stopping benefit
    payments to Ball. Thus, Abbey argues, the statement regarding the purchase of the
    Explorer did not cause the VA to do something it would not have otherwise done had it
    known the true facts.
    Abbey himself acknowledges that, in the context of 
    18 U.S.C. § 1001
    , we have
    consistently held a “‘false statement is material if it has a natural tendency to influence, or
    is capable of influencing, the decision of the tribunal in making a determination required
    to be made.’” United States v. Meuli, 
    8 F.3d 1481
    , 1485 (10th Cir. 1993) (quoting United
    States v. Brittain, 
    931 F.2d 1413
    , 1415 (10th Cir. 1991)). Actual reliance on the false
    statement is unnecessary; all that need be shown is it “has the capacity to influence the
    decision.” United States v. Haddock, 
    956 F.2d 1534
    , 1550 (10th Cir. 1992) (construing
    similar materiality provision in 
    18 U.S.C. § 1014
    ).
    With respect to count 6, it is apparent the statement had the capability of
    -19-
    influencing the VA. More specifically, because the statement falsely indicated a vehicle
    had been purchased for Ball and the total value of his estate was less than $25,000, the
    statement had the capability of influencing the VA to not implement the $25,000 rule and
    cease benefit payments to Ball. Moreover, evidence presented at trial indicated the VA in
    fact acted upon the false statement and sent a follow-up letter to Abbey on February 12,
    1991, indicating it would not cease benefit payments to Ball in light of the information
    submitted (i.e., the false statement). Thus, the false statement at issue in count 6 was
    clearly “material” for purposes of § 1001.
    Similarly, the false statement at issue in count 7, i.e., that a Ford Explorer had been
    purchased for Ball, had the capability of influencing, and in fact did influence, the VA.
    Joann Roybal, an estate analyst for the VA, testified at trial that the VA regularly audited
    accountings submitted by fiduciaries to ensure the benefits of incompetent veterans were
    administered properly. In light of this testimony, we believe it is reasonable to conclude
    the false statement at issue in count 7 prevented the VA from properly auditing the
    accounting submitted by Abbey and from ensuring that Ball’s VA benefits were
    administered properly. In particular, the VA was falsely persuaded to believe Ball was
    the owner of a $25,000 vehicle when, in fact, he was the owner of a $15,000 vehicle, and
    the value of his estate (excluding the vehicle) was $10,000 less than it actually was.
    Accordingly, we conclude the statement at issue in count 7 was “material.”
    -20-
    Amendment of count 1 by expanded language in instruction
    Abbey contends the district court impermissibly amended count 1 of the indictment
    (i.e., the conspiracy count) when it instructed the jury it could convict him of conspiracy
    if it found he conspired with any person, whether named in the indictment or not. As
    noted by Abbey, count 1 of the indictment listed only Abbey and Schaefer-Sachs as
    conspirators, and made no mention of any other unnamed conspirators.
    As Abbey acknowledges in his opening brief, this issue is subject to review for
    plain error since no objection was made to the jury instructions at trial. Fed. R. Civ. P.
    52(b); see United States v. Galbraith, 
    20 F.3d 1054
    , 1057 (10th Cir. 1994). Plain error
    affects the defendant’s right to a fair and impartial trial, and it must have been both
    obvious and substantial. 
    Id.
    “[T]he Fifth Amendment forbids amendment of an indictment by the court,
    whether actual or constructive.” United States v. Wacker, 
    72 F.3d 1453
    , 1474 (10th Cir.
    1995). A variance between the indictment and the jury instructions “becomes a
    constructive amendment if the evidence presented at trial and the instructions raise the
    possibility that a defendant may have been convicted on a charge other than that alleged
    in the Indictment.” United States v. Davis, 
    55 F.3d 517
    , 520-21 (10th Cir. 1995); see also
    United States v. Williamson, 
    53 F.3d 1500
    , 1513 (10th Cir. 1995) (a constructive
    amendment is a type of variance because it modifies an essential element of the offense
    charged).
    -21-
    Here, a review of the trial transcript demonstrates there was no constructive
    amendment of the indictment. Although the district court’s jury instructions mentioned
    the possibility of conspirators not listed in the indictment, there was simply no evidence
    of any such conspirators’ involvement in the acts alleged in count 1. In instructing the
    jury on count 1, the district court stated:
    The government must prove that the defendant, Dennis R. Abbey, and at
    least one other person knowingly and deliberately arrived at some type of
    agreement or understanding that they, and perhaps others, would violate
    some laws by some means of some common plan or course of action as
    alleged particularly in Count 1 of the indictment.
    Record IX at 2548. The court further instructed that the acts and statements of Schaefer-
    Sachs could be considered by the jury in determining whether the government had proven
    count 1. Count 1 of the indictment included the following language:
    3. It was part of the conspiracy that defendants, DENNIS R.
    ABBEY and MARGARET J. SCHAEFER, made and caused to be made
    and filed yearly accountings that listed MARGARET J. SCHAEFER as
    receiving money for providing counseling services to the veterans when, in
    fact, she did not provide the counseling services as listed in the accountings
    and did not receive the money as payment as listed in the accountings.
    4. In furtherance of this conspiracy and to effect the objects of the
    conspiracy, one or more of the defendants committed and caused to be
    committed one or more of the following overt acts, among others:
    (a.) DENNIS R. ABBEY submitted and caused to be submitted
    accountings for sixteen of the eighteen qualified veterans . . ., which stated
    that MARGARET J. SCHAEFER provided counseling services in the
    aggregate amount of approximately $83,980.00, when, in fact, she did not
    provide the counseling services as described.
    (b.) MARGARET J. SCHAEFER allowed DENNIS R. ABBEY to
    use her name on the accountings so that it appeared to the VA that the
    money was paid to her for providing counseling services that, in fact, she
    had not performed.
    -22-
    (c.) MARGARET J. SCHAEFER provided DENNIS R. ABBEY
    with deposit slips and checks that were signed by her but otherwise in blank
    for her account # 2836459 at FirstBank of South Longmont, N.A. in
    Longmont, Colorado, the accounts of which were insured by the Federal
    Deposit Insurance Corporation. This financial institution became a branch
    of FirstBank of North Longmont, N.A. on December 10, 1991.
    (d.) Using the deposit slips provided by MARGARET J.
    SCHAEFER, DENNIS R. ABBEY deposited checks drawn on the accounts
    of these 16 veterans in the approximate amount of $76,827.46 into
    MARGARET J. SCHAEFFER’s account.
    (e.) DENNIS R. ABBEY withdrew approximately $62,660.00 from
    this account by completing and negotiating the checks which MARGARET
    J. SCHAEFER provided him.
    (f.) MARGARET J. SCHAEFER received and retained in this
    account for her use approximately $14,167.46.
    Record I at 6-7. The only evidence presented to the jury which would pertain to the acts
    described in the instructions on count 1 which incorporated the common plan or course of
    action set forth in count 1 of the indictment involved only one co-conspirator and that was
    Schaefer-Sachs. Thus, there was no possibility Abbey was convicted on a charge other
    than that alleged in count 1 of the indictment.
    III.
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge
    -23-
    

Document Info

Docket Number: 97-1284

Filed Date: 6/5/1998

Precedential Status: Non-Precedential

Modified Date: 4/17/2021

Authorities (28)

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United States v. James Mills, Doing Business as Great ... , 987 F.2d 1311 ( 1993 )

United States v. Van Ray Yarnell , 129 F.3d 1127 ( 1997 )

united-states-v-humberto-antonio-gaviria-aka-chicky-aka-alberto , 116 F.3d 1498 ( 1997 )

United States of America, and v. Doloras Contreras, and ... , 108 F.3d 1255 ( 1997 )

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United States v. Thomas P. Dempsey , 830 F.2d 1084 ( 1987 )

United States v. Michael A. Griley, Jr. , 814 F.2d 967 ( 1987 )

United States v. James Michael Welch , 745 F.2d 614 ( 1984 )

United States v. Kenneth Eugene Haddock , 956 F.2d 1534 ( 1992 )

United States v. Donald Kenard Davis , 55 F.3d 517 ( 1995 )

United States v. Earl K. Shumway , 112 F.3d 1413 ( 1997 )

United States v. Richard Christopher Gennuso , 967 F.2d 1460 ( 1992 )

United States v. John D. Polito , 856 F.2d 414 ( 1988 )

United States v. Gene E. Meuli , 8 F.3d 1481 ( 1993 )

United States v. Nancy Baker and William James Reeder , 638 F.2d 198 ( 1980 )

United States v. Janusz , 135 F.3d 1319 ( 1998 )

Unlted States of America v. James E. Pearson and Samuel J. ... , 798 F.2d 385 ( 1986 )

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