United States v. Reagan ( 2010 )

REVISED FEBRUARY 23, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
February 4, 2010
No. 08-11006
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DARREN L REAGAN
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, BARKSDALE, and ELROD, Circuit Judges.
KING, Circuit Judge:
Defendant–appellant Darren L. Reagan was charged with five counts of
theft of public money in violation of 18 U.S.C. § 641. A jury convicted on all five
counts. The district court sentenced Reagan to 12 months of imprisonment on
each count, to be served concurrently, and two years of supervised release;
imposed a $100 special assessment for each count; and ordered restitution.
Reagan timely appealed his conviction and sentence. For the following reasons,
we affirm.
No. 08-11006
I. Factual and Procedural Background
Reagan was charged under 18 U.S.C. § 641 for improperly receiving
$41,832 over five years in Section 8 program payments from the Dallas Housing
Authority (DHA), which administers funding provided by the Department of
Housing and Urban Development (HUD). The Section 8 program subsidizes rent
for low income persons. Reagan jointly owned a residential property with his
wife, Debra Kirvin, and, in 2002, leased this property to his wife’s mother,
Leatha Kervin,1 a participant in the Section 8 program. One of the documents
that Reagan signed and filed with the DHA to initiate Section 8 benefits
included the disclaimer that “the owner (including a principal or other interested
party) is not the parent, child, grandparent, sister, or brother of any member of
the family.” In another document signed and filed with the DHA, Reagan
similarly promised that he had “no blood, marital or other familial relationship”
with the Section 8 recipient. Reagan received monthly checks from the DHA
from March 2002 until September 2007, when his relationship to Leatha Kervin
was discovered. Reagan was charged under § 641 with five counts of receipt of
public funds, one count for each year that he received monthly Section 8
payments.
Before trial, Reagan filed a motion to limit or dismiss the indictment,
arguing that the five-count charge under § 641 was multiplicitous; that § 641
was not the appropriate statute under which to charge HUD fraud; and that the
indictment was unconstitutionally vague. The district court denied the motion.
At trial, Reagan requested cautionary instructions regarding his wife’s
1
Debra Kirvin spells her last name “Kirvin,” while her mother uses alternate spellings
including “Kirvin,” “Kervin,” and “Kirven.”
2
No. 08-11006
testimony. The district court refused to give the proposed instructions. Reagan
now appeals the denial of the motion to dismiss and the denial of the requested
instructions.
II. The Multiplicity Challenge
Reagan asserts that the indictment was multiplicitous because although
it charged five separate offenses, all “stem[med] from a single fraudulent ac[t]
in the first year.” The Government counters that each time Reagan received a
housing assistance payment he violated § 641, so multiple counts were
appropriate. The Government contends that the indictment’s infirmity, if any,
was that it was duplicitous for joining multiple offenses in each count. See
United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008) (“Duplicity occurs when
a single count in an indictment contains two or more distinct offenses. Even if
an indictment is duplicitous, a defendant must be prejudiced to receive relief[.]”).
Reagan did not raise a duplicity challenge before the district court and does not
raise one on appeal. Accordingly, we do not consider whether the sentence was
duplicitous.
Although Reagan was sentenced to concurrent terms of imprisonment, the
district court imposed a $100 special assessment for each count under 18 U.S.C.
§ 3013(a). Accordingly, Reagan’s multiplicity challenge is still viable. See
United States v. Soape, 169 F.3d 257, 266 n.4 (5th Cir. 1999) (“While the district
court sentenced Soape to concurrent . . . terms of imprisonment . . . it also
imposed a $50 special assessment for each count. Soape’s monetary sanctions
therefore depend on the validity of each count, including the allegedly
multiplicitous ones, and the concurrent sentence doctrine does not apply.”).
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No. 08-11006
“Multiplicity claims are reviewed de novo.” United States v. Planck, 493
F.3d 501, 503 (5th Cir. 2007). “An indictment is multiplicitous if it charges a
single offense in multiple counts, thus raising the potential for multiple
punishment for the same offense, implicating the [F]ifth [A]mendment double
jeopardy clause.” United States v. Brechtel, 997 F.2d 1108, 1112 (5th Cir. 1993)
(footnotes omitted). To determine “whether separate and distinct prohibited
acts, made punishable by law, have been committed,” the court looks to the
“allowable unit of prosecution,” starting with the language of the statute.
Planck, 493 F.3d at 503 (internal quotation marks and citations omitted); United
States v. Reedy, 304 F.3d 358, 365 (5th Cir. 2002).
Section 641 penalizes “[w]hoever embezzles, steals, purloins, or knowingly
converts to his use or the use of another . . . any record, voucher, money, or thing
of value of the United States.” 18 U.S.C. § 641. No case has been reported
discussing the “allowable unit of prosecution” under § 641. Courts interpreting
similarly-worded statutes, however, have concluded that each distinct taking of
funds constitutes a separate violation under the statute.
In United States v. Brechtel, 997 F.2d at 1111, for example, the defendant
was convicted of two counts of violating 18 U.S.C. § 1006 after issuing two
improper loans in the course of a single real estate transaction. Section 1006
punishes bank officials who “receive[ ] . . . any money, profit, property, or
benefits through any transaction, loan, commission, contract, or any other act
of . . . [the] institution.” 18 U.S.C. § 1006. We rejected the defendant’s
contention that the counts were multiplicitous, reasoning that the plain
language of § 1006 penalizes the “receipt of improper benefit from individual
transactions, rather than from overarching schemes.” Brechtel, 997 F.2d at
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No. 08-11006
1112. We distinguished the language of § 1006 from that of 18 U.S.C. § 1344,
which punishes “[w]hoever knowingly executes, or attempts to execute, a scheme
or artifice . . . to defraud a financial institution” (emphases added), and under
which we have found the “allowable unit of prosecution” to be the overarching
scheme, not individual steps in furtherance of that scheme. See United States
v. Lemons, 941 F.2d 309, 317–18 (5th Cir. 1991). We concluded that, by contrast,
the language of § 1006, which punishes the receipt of “any money . . . through
any transaction,” makes clear that a defendant “violate[s] § 1006 each time he
benefit[s] from an extension of credit.” Brechtel, 997 F.2d at 1112.
The Sixth Circuit reached a similar conclusion as to a similarly-worded
statute in United States v. Busacca, 936 F.2d 232, 234, 239 (6th Cir. 1991). The
defendant was accused of embezzling from an employee benefit plan, for which
he was a fiduciary, in order to pay his legal defense fees in an action relating to
his operation of the plan. He was convicted of six counts of embezzlement under
18 U.S.C. § 664, one for each employee benefit plan check that he caused to be
issued to himself. Busacca, 936 F.2d at 235–36. Section 664 penalizes “[a]ny
person who embezzles, steals, or unlawfully and willfully abstracts or converts
to his own use or to the use of another, any of the moneys, funds, . . . or other
assets of any employee welfare benefit plan or employee pension benefit plan.”
18 U.S.C. § 664. The defendant contended that the charges were multiplicitous
because the issuance of each check was merely part of a single scheme of
embezzlement. Busacca, 936 F.2d at 239. The Sixth Circuit rejected this
argument, accepting the government’s argument that “the use of the phrase ‘any
moneys’ indicates the intent of Congress that each taking of funds from an
employee benefit plan constitutes a separate violation of the statute.” Id. The
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No. 08-11006
court concluded that each time the defendant caused a check to be issued to
himself, he violated the statute. Id.Like the statutes discussed in Brechtel and Busacca, § 641 punishes
“[w]hoever embezzles, steals, purloins or knowingly converts to his use . . .
any record, voucher, money, or thing of value of the United States.” 18 U.S.C.
§ 641 (emphasis added). Accordingly, we hold that the “allowable unit of
prosecution” under § 641 is each individual transaction in which government
money is received, even if the transaction is part of an overarching scheme.
Reagan violated § 641 each time he converted a HUD check. The five counts
against Reagan therefore were not multiplicitous.
III. The Remaining Bases for Relief
Reagan asserts that the district court erred in refusing to grant his motion
to dismiss the indictment. He contends that the indictment improperly charged
him under § 641 rather than under the HUD fraud statute, 18 U.S.C. § 1012,
and failed to set out the charges against him in a “plain and intelligible manner.”
Reagan, who is represented by appointed counsel, does nothing beyond listing
these points of error—he offers no further arguments or explanation. This is a
failure to brief and constitutes waiver. See United States v. Stalnaker, 571 F.3d
428, 439–440 (5th Cir. 2009) (holding that the defendant’s failure to explain her
assertions or provide citations to the record or relevant law constituted waiver
for failure to adequately brief); see also FED. R. APP. P. 28(a)(9)(A) (“The
appellant’s brief must contain . . . [the] appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the record on which the
appellant relies.”). We therefore do not address these points of error.
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No. 08-11006
For similar reasons, we do not address Reagan’s contention that the
district court abused its discretion by failing to give the jury cautionary
instructions about the testimony of his wife, Debra Kirvin.2 The party
challenging the denial of requested jury instructions must show that “there
[wa]s sufficient evidentiary foundation for . . . [the] requested instruction[s],”
viewing the evidence in the light most favorable to him. United States v.
Giraldi, 86 F.3d 1368, 1376 (5th Cir. 1996). The party must then show that the
district court abused its discretion in denying the requested instructions because
those instructions were substantively correct, not covered in the charge given to
the jury, and their omission seriously impaired his ability to present his defense.
Id. Reagan does not provide citations to any evidence in the record to support
his claim. By failing to do so, Reagan has failed to show a “sufficient evidentiary
foundation” for the requested instruction and therefore cannot establish abuse
of discretion. This is also a failure to brief. See United States v.
Delgado–Martinez, 564 F.3d 750, 752 (5th Cir. 2009) (“Delgado–Martinez’s
briefing is devoid of any citations to the record in support of his allegations.
Accordingly, we do not consider [this] issue on appeal.” (citation omitted)); FED.
R. APP. P. 28(a)(9)(A). We therefore do not address Reagan’s contentions as to
jury instructions.
2
Reagan’s proposed instructions would have instructed the jury that Kirvin was an
accomplice and could have been charged for the same crime, and that these facts could provide
bases to find her testimony less credible. Reagan contends, without providing any citations
to the record, that these proposed instructions were necessary because “this case is replete with
evidence that [he and Kirvin] were at one another’s throats at the time of the trial,” and that
“[t]heir marriage was in the process of dissolution and the bitterness between them was
palpable.” Reagan argues that “[t]he law favors cautioning jurors under such circumstances
to take the testimony of the hostile, accomplice witness with a grain of salt,” but offers no
further legal analysis.
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No. 08-11006
IV. Conclusion
Accordingly, we AFFIRM the conviction and sentence.
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