U.S. v. Wiley ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-8067
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EMIL F. WILEY,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
(December 3, 1992)
Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit
Judges.
POLITZ, Chief Judge:
Convicted of conspiracy to pass counterfeit Internal Revenue
Service obligations and of the underlying substantive offenses,
Emil F. Wiley appeals. Finding no error, we affirm.1
1
Wiley also has filed various motions with this court,
including a motion for bail, a motion to disqualify two Assistant
U.S. Attorneys, a motion for a "Certificate of Reasonable Doubt,"
a motion to vacate the judgment, and a motion to dispose of the
foregoing motions expeditiously. We grant the motion for a
speedy disposition and deny all other motions.
Background
Wiley and Roger Elvick conceived of a scenario in which
various individuals would claim enormous refunds on their tax
returns and execute instruments purporting to be certified IRS
sight drafts against the refunds to Wiley or Elvick, who would
negotiate the counterfeit drafts for legitimate negotiable
instruments. Wiley sent two of these sight drafts to Thomas
Nathan Cox, a business associate in Austin, Texas. The first was
drawn by one Arnold Hilgeford in the amount of $990,000 and arrived
via Federal Express with instructions from Wiley to open a
brokerage account, to buy tax-exempt bonds and not to "use an
attorney or accountant."
Cox took the draft to Prudential-Bache Securities. Its
suspicions aroused by the multiple endorsements, Prudential-Bache
notified the IRS and declined to accept the draft. The next day
Cox was arrested by the Treasury Division of the IRS. Offering to
cooperate with the government, he tendered a second package from
Wiley containing another draft similar to the first, this one
written by one Marvin E. Arlien to Wiley in the amount of
$1,000,100.
Working with the government, Cox suggested to Wiley that he
had a high school friend in the brokerage business who was willing
to negotiate the drafts, further suggesting that Wiley fly to
Austin to meet his friend and bring additional drafts. Wiley
agreed. At a meeting at a local hotel, Wiley presented the broker,
in reality an undercover agent, with three additional drafts, one
2
from Hilgeford to Wiley in the amount of $990,000, another from
Arlien in the amount of $4,000 and a third from Elwick to Wiley in
the amount of $1,000,100. Like the other drafts, these were
payable through the IRS. Wiley was promptly arrested. Among his
belongings was a .25 caliber Excam pistol.
Wiley was indicted for passing counterfeit United States
obligations with intent to defraud, 18 U.S.C. § 472, possessing
counterfeit documents with intent to defraud the United States,
18 U.S.C. § 1002, and conspiracy to engage in these offenses,
18 U.S.C. § 371. Because of a previous felony conviction, he was
indicted for felony possession of a firearm, 18 U.S.C. §§ 922(g)(1)
and 924(a). While in jail awaiting trial, Wiley filed a Currency
Transaction Report falsely stating that the magistrate judge who
had handled certain preliminary aspects of his case had engaged in
a $4 million transaction with the undercover agent who had
represented himself as a broker. Wiley also was indicted for this
offense, 18 U.S.C. § 1001. Choosing to represent himself with the
aid of stand-by counsel, Wiley was convicted by a jury on all
counts and sentenced to 78 months' imprisonment. Wiley timely
appealed and proceeds herein pro se.
Analysis
1. Sufficiency of the indictment.
Wiley raises the instant challenges to the sufficiency of the
indictment for the first time on appeal. He contends that the
3
conspiracy count charges several different crimes, that it contains
language suggesting that the Internal Revenue Service, the Treasury
Department, and the United States are three separate entities, and
that the felony firearm count also is duplicitous. None of these
contentions has merit.
An indictment is sufficient if it (1) contains the elements of
the offense charged, (2) fairly informs a defendant of the charge,
and (3) enables the defendant to plead acquittal or conviction in
bar of future prosecutions for the same offense.2 "Practical, not
technical, considerations govern the validity of an indictment and
the test of the validity of an indictment is not whether the
indictment could have been framed in a more satisfactory manner,
but whether it conforms to minimal constitutional standards."3
Reviewing Wiley's indictment de novo, we find that it satisfies
this standard.4 The challenged clause, that defendants "did
willfully and knowingly combine, conspire, confederate and agree
together and with each other and with other persons to defraud the
United States by impeding, impairing, obstructing and defeating the
lawful governmental functions of the Internal Revenue Service of
the Treasury Department of the United States, and to commit an
2
United States v. Chaney, 964 F.2d 437 (5th Cir. 1992).
3
Chaney, 964 F.2d at 446.
4
We are to construe the indictment liberally because
Wiley did not raise these objections below. Chaney. However the
indictment is read, it passes muster.
4
offense against the United States," does not suggest that the
Internal Revenue Service, the Treasury Department and the United
States are separate entities. Nor is the conspiracy count
duplicitous. It cites the two underlying statutes which Wiley is
charged with conspiring to violate and lists ten overt acts in
furtherance of the conspiracy. This does not amount to a charge of
multiple crimes in one count.
Finally, the language of the firearm count is not improper.
"Where a penal statute . . . prescribes several alternative ways in
which the statute may be violated and each is subject to the same
punishment, . . . the indictment may charge any or all of the acts
conjunctively, in a single count, as constituting the same offense,
and the government may satisfy its burden by proving that the
defendant, by commiting any one of the acts alleged, violated the
statute."5 That is what happened in this case. 18 U.S.C.
§ 922(g)(1) makes it unlawful for a convicted felon to ship,
transport, receive, or possess a firearm in interstate commerce.
Each is an alternative way to violate the statute; each is subject
to the same punishment. The indictment charged two of these
methods: transportation and possession of the Excam pistol found in
Wiley's luggage. The jury was instructed that it had to find only
one in order to convict. The firearm count charged Wiley with only
one offense.
5
United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.
1989); see also Fields v. United States, 408 F.2d 885 (5th Cir.
1969).
5
2. Sufficiency of the evidence.
Wiley contends that the evidence of conspiracy was so
deficient that it effectively proved a different crime than that
for which he was indicted. He also challenges the sufficiency of
the evidence of intent to defraud the United States. In reviewing
a challenge to the sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict6 and affirm if
any rational trier of fact could have found the essential elements
of the offense beyond a reasonable doubt.7 Applying this standard,
we find the evidence more than sufficient.
Wiley maintains that there is no evidence of an agreement to
commit an unlawful act. An agreement may be inferred from concert
of action.8 Therefore, Wiley's criticism that "the government
relied on overwhelming the jury with evidence of the acts
themselves" is misplaced. The record also contains direct evidence
of an agreement between Wiley and Elvick, including Elvick's
representation during a tape recorded telephone conversation with
Cox that he and Wiley had worked for a number of years on the
drafts and that he could "fix Emil with anything he needs" for the
meeting in Austin, and Wiley's representation during that meeting
6
Glasser v. United States, 315 U.S. 60 (1942); Chaney.
7
Jackson v. Virginia, 443 U.S. 307 (1979); Chaney.
8
United States v. Shively, 927 F.2d 804 (5th Cir.),
cert. denied, U.S. , 111 S.Ct. 2806, 115 L.Ed. 2d 979(1991).
6
that Elvick was his partner. Indeed, Elvick joined Wiley in three
recorded telephone conversations with Cox to explain the scheme.
There also was ample evidence of intent to defraud the
government.9 Wiley knew that the drafts were demands for funds
from the Internal Revenue Service; they so stated on their face and
Wiley explained to Cox that they were written against IRS 1040-
Forms. There also was evidence from which a reasonable jury could
conclude that he knew the demands for funds were not legitimate; he
described the scheme to Cox as "a bookkeeping charade" and warned
him not to involve accountants or lawyers. Wiley argues that he
merely was accepting assignments of refunds from taxpayers in
private transactions. The jurors were not obliged to accept this
interpretation of the evidence. They obviously did not.
3. Resolution of objections to PSR.
Invoking Fed.R.Crim.P. 32(c)(3)(D), Wiley contends that the
court failed to resolve his objections to the Presentence
9
Intent to defraud the government is an element of 18
U.S.C. § 1002. Contrary to Wiley's arguments, it is not an
element of the conspiracy offense as submitted to the jury. 18
U.S.C. § 371 may be violated in either of two ways: by a
conspiracy to defraud the government or by a conspiracy to
violate a federal law. Tanner v. United States, 483 U.S. 107(1987); United States v. Loney, 959 F.2d 1332 (5th Cir. 1992).
The indictment charged both of these methods of violating the
statute but the jury was instructed in only the latter:
conspiracy to violate 18 U.S.C. § 472 and 18 U.S.C. § 1002.
Proof of intent to defraud the government is not an element of
this type conspiracy. Loney. Nor is it an element of 18 U.S.C.
§ 472. Accordingly, Wiley's conviction for conspiracy to violate
this statute can stand without proof of intent to defraud the
United States.
7
Investigation Report. Fed.R.Crim.P. 32(c)(3)(D) requires the court
to make findings with regard to allegations of factual inaccuracies
in the PSR. At sentencing, the only specific objection to the PSR
raised by Wiley was that the conspiracy conviction was a
misdemeanor. This the court rejected. He then delivered a lengthy
speech in support of his "Motion to Dismiss," asserting violations
of, inter alia, natural law, the confrontation clause, the Speedy
Trial Act, the law merchant and the lack of admiralty jurisdiction.
These objections were not factual and did not relate to the PSR;
the were beyond the scope of Rule 32(c)(3)(D). This assignment of
error is meritless.
4. Admission of evidence.
In his defense Wiley offered evidence that the IRS owed
Hilgeford a $10 million refund against which the sight drafts were
drawn. He now claims error in the admission of evidence that the
IRS froze Hilgeford's account and placed Hilgeford under
investigation in response to the 1040-Form on which he claimed such
a refund.
Wiley first challenges the evidence as hearsay, outside the
Fed.R.Evid. 803(8) public records exception to the hearsay rule
because it was offered in a criminal proceeding and concerned
"matters observed by . . . law enforcement personnel." In applying
this exclusion, however, we distinguish "between law enforcement
reports prepared in a routine, non-adversarial setting, and those
resulting from the arguably more subjective endeavor of
8
investigating a crime and evaluating the results of that
investigation."10 Only the latter is excluded from the Rule 803(8)
public records exception to Rule 802's proscription of hearsay
evidence. The bare fact that Hilgeford's account was frozen and
that he was under investigation is in the former category and hence
is not excludable as hearsay.
Wiley also maintains that the prejudicial effect of the
evidence outweighs its probative value. This objection was not
raised at trial. Our review, therefore, may only be for plain
error, that is, error "so fundamental as to result in a miscarriage
of justice."11 Our review of the record convinces us that admission
of the evidence was not plain error. Wiley presented evidence that
the IRS owed Hilgeford $10 million; in rebuttal the government was
entitled to present evidence that the IRS had made no such
determination. This assignment of error likewise is without merit.
The convictions and sentences are AFFIRMED.
10
United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.
1985).
11
United States v. Beaumont, 972 F.2d 91, 94 (5th Cir.
1992).
9