United States v. Ormsby ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0367n.06
Filed: May 30, 2007
No. 06-5689
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
DORCAS “SUSIE” ORMSBY, ) EASTERN DISTRICT OF KENTUCKY
)
Appellant. )
Before: MARTIN and SUTTON, Circuit Judges; and GRAHAM, District Judge.*
SUTTON, Circuit Judge. Susie Ormsby takes issue with several aspects of her conviction
for violating the federal mail fraud statute. Unable to find any merit in her arguments, we affirm.
I.
Susie Ormsby is the director of Meteer School, located in Paris, Kentucky. The school
provides education and support to young, special-needs children from low-income families in the
area. After some time in this role, Ormbsy determined that Meteer could also serve the community
by directly assisting the families of its students. She created the Parents Advocacy, Teamwork,
Children and Hope (Patch) program, through which Meteer could “get families off welfare,” “have
*
The Honorable James L. Graham, United States District Judge for the Southern District of
Ohio, sitting by designation.
No. 06-5689
United States v. Ormsby
families be more self-sufficient” and “decrease the [incidence] of child abuse and neglect” in the
community. Supp. JA 40.
In the spring of 2000, Ranetta Wells, another Meteer employee, formed Parents Athletic
Support to raise money for a youth baseball trip to Florida by (among other things) organizing bingo
games. Although Kentucky generally bans gambling, it permits charitable gaming. See Ky. Rev.
Stat. § 238.500 et seq. Because Parents Athletic Support did not have a charitable gaming license,
its members volunteered to assist the games run by another charitable organization—the Fraternal
Order of Police Lodge #59—in exchange for charitable contributions (representing an agreed-upon
portion of the bingo proceeds) from the Fraternal Order of Police.
Wells asked Ormbsy to assist her with the bingo games, telling Ormsby that the games would
“be a good way . . . to get some extra money for the school.” JA 241. Ormsby agreed, and she took
control of the project after Wells’ involvement in it ended in the summer of 2000.
In sharing the proceeds from the bingo games, the Fraternal Order of Police wrote checks to
Parents Athletic Support, though Ormsby told the organization that the money would benefit Meteer
School. In June of that year, Ormsby also began leading bingo games for the Scott County
(Kentucky) Touchdown Club, a booster group for the Scott County High School football team. She
informed the group that its contributions would benefit Meteer School. She initially had the group
write its checks directly to the school, but in 2001 directed it to make the checks out to Parents
Athletic Support, which she described as a booster-type organization for Meteer School.
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Ormsby continued operating bingo games under the auspices of the Fraternal Order of Police
through April 26, 2001 and the Scott County Touchdown Club through February 15, 2004. In all,
the two groups issued more than $130,000 in checks for Ormsby’s “assistance,” with some checks
made out to Meteer School and others to Parents Athletic Support. Of this amount, Ormsby
deposited a portion into Meteer School’s bank account, and a small share went to other
organizations. The vast majority of the checks—$122,447.78 by the district court’s
calculation—were converted by Ormsby to cash, often by forging Wells’ endorsement on checks
payable to Parents Athletic Support.
On October 7, 2005, a grand jury in the Eastern District of Kentucky charged Ormsby with
15 counts of mail fraud. See 18 U.S.C. § 1341. Each count identified a separate mailing allegedly
connected to Ormsby’s scheme to defraud the Fraternal Order of Police and the Scott County
Touchdown Club: counts 1 through 10 each included a check from the Scott County Touchdown
Club; counts 11 and 12 included two of the club’s applications for renewal of their charitable
organization license; counts 13 and 14 included the club’s quarterly reports to the Kentucky
Department of Charitable Gaming for the fourth quarter of 2000 and the first quarter of 2001,
respectively; and count 15 included a letter from Jim McKee (the Scott County football coach) to
the Department of Charitable Gaming regarding Parents Athletic Support.
On December 21, a jury found Ormsby guilty on counts 13 and 14. Ormsby moved to set
aside the jury verdict. The district court denied the motion and sentenced Ormsby to a 33-month
sentence, fined her $10,000 and ordered her to pay $122,447.78 in restitution.
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II.
Ormsby makes several arguments on appeal: (1) that the evidence does not support the
verdict; (2) that the district court shifted the burden of proof from the government to Ormsby by
allowing an improper inference of guilt; (3) that the indictment was multiplicitous; (4) that the jury
verdict is internally inconsistent; and (5) that the district court improperly instructed the jury.
Sufficiency of the evidence. We start, as we must, with the sufficiency claim. See United
States v. Aarons, 718 F.2d 188, 189 n.1 (6th Cir. 1983) (“Where the sufficiency of the evidence is
properly before us, we consider that issue first because it is determinative of whether” the Double
Jeopardy Clause prevents “the appellant [from] be[ing] retried.”). The federal mail fraud statute
makes it a crime to “devise any scheme . . . for obtaining money . . . by means of false or fraudulent
pretenses,” when “for the purpose of executing such scheme” a person causes “any matter or
thing . . . to be delivered by mail.” 18 U.S.C. § 1341. Consistent with this language, we have
identified two elements that the government must prove to sustain a mail fraud conviction: “(1) a
scheme to defraud, and (2) use of the mails in furtherance of the scheme.” United States v. Brown,
147 F.3d 477, 483 (6th Cir. 1998).
Based on the evidence introduced at trial, “any rational trier of fact” readily could find “the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979). As to the scheme to defraud, Ormsby told the Fraternal Order of Police and the Scott County
Touchdown Club that the bingo proceeds would benefit Meteer School and that Parents Athletic
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Support was essentially an arm of the school. Relying on this information, the groups issued checks
to Parents Athletic Support. Parents Athletic Support, as it turns out, was not affiliated with Meteer
School. And most of the money ended up not in the bank accounts of Meteer School or even Parents
Athletic Support, but in Ormbsy’s pocket—often after she forged Wells’ signature to endorse the
checks.
As to the use of the mails to further this scheme, Scott County Touchdown Club mailed the
quarterly reports forming the basis of the counts of conviction (counts 13 and 14) to the Kentucky
Department of Charitable Gaming. As required by Kentucky regulations, these reports detailed the
club’s use of bingo proceeds for the relevant quarters, including those amounts directed to Meteer
School through Parents Athletic Support. While the mailed report said one thing (that some of the
bingo proceeds went to Meteer School through Parents Athletic Support), the reality was something
else (that most of the money went to Ormsby). See Schmuck v. United States, 489 U.S. 705, 710–11
(1989) (“To be part of the execution of the fraud . . . the use of the mails need not be an essential
element of the scheme. It is sufficient for the mailing to be incident to an essential part of the
scheme or a step in the plot.”) (internal quotation marks and brackets omitted); United States v.
Crossley, 224 F.3d 847, 857 (6th Cir. 2000) (“[T]he government does not have to show that the
defendant actually used the mails, but must show that . . . a reasonable person would have foreseen
use of the mails.”) (internal quotation marks omitted); United States v. Frost, 125 F.3d 346, 354 (6th
Cir. 1997) (explaining that “the mailing [supporting a mail fraud conviction] need only be closely
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related to the scheme and reasonably foreseeable as a result of the defendant’s actions”) (internal
quotation marks omitted).
Ormsby resists this conclusion on the ground that the evidence does not show “what she did
with the proceeds.” Br. at 31. The question, however, is not what Ormsby did with the proceeds,
it is what she did not do: give the money to Meteer School. Once the government showed that
Ormsby acquired the money under false pretenses—by claiming she would give the money to Meteer
School—it had no obligation to show anything more than that Ormsby never gave the money to the
school. See United States v. Neal, No. 84-5780, 1985 WL 13112, at *2 (6th Cir. Mar. 22, 1985)
(“Conversion of money to one’s own use is not an essential element of the crime” of wire fraud.);
see also Lombardo v. United States, 865 F.2d 155, 160 (7th Cir. 1989) (same); United States v.
Bagdasian, 291 F.2d 163, 164 (4th Cir. 1961) (same).
Ormsby persists that she used the bingo proceeds to “help the poor people of Bourbon
County,” which in her view was consistent with the mission of Meteer School and the related Patch
program. Br. at 30. To Ormsby’s credit, the evidence indeed shows she gave considerable amounts
of cash to others in the community during the time she was receiving the bingo money. See, e.g.,
Supp. JA 15 (Sabrina Campbell testifying that Ormsby gave her in excess of $3,000 to help her with
school expenses, the rent on her house and a car down payment); Supp. JA 26 (Emma Griggs
testifying that Ormbsy helped her niece Tina, who was raising eight children, by buying an air
conditioner for her asthmatic son, paying for her utilities and giving her money for diapers and
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medicine); Supp. JA 32–33 (George Jones testifying that Ormsby gave him hundreds of dollars,
helping him pay utility bills, fix his car and buy clothes).
But as the government points out, all of this evidence remains consistent with its theory that
Ormsby used the money in her personal capacity, not in her capacity as director of Meteer School.
See, e.g., Supp. JA 15 (“[Ormsby] helped me with my rent, . . . she helped me pay my
classes . . . [and] she gave me the [rent] deposit and the first month of my electric.”); Supp. JA 26
(“[Ormsby] bought the air conditioner[,] . . . [s]he gave me the money to go pay the gas bill” and she
gave money for “diapers and medicine.”); Supp. JA 32–33 (“[Ormsby] gave us some help at one
time on our utilities, . . . she gave me money to get my brakes fixed . . . [and] she gave my little boy
some shoes.”); see also Supp. JA 47 (Ormsby testifying that people who received bingo money
“knew it wasn’t [from] Patch”).
Nor, contrary to Ormsby’s suggestion, does it make a difference that the indictment says she
“diverted to her personal benefit the sum of $122,447.78.” JA 21 (emphasis added). In one sense,
the evidence does show that the money benefitted Ormsby personally because she distributed it in
her personal capacity (and as if the money was coming from her own funds), not in her capacity as
director of Meteer School (and as if the money was coming from the school). At any rate, the
government did not transform the elements of a mail fraud violation by including this allegation in
the indictment. Cf. United States v. Miller, 471 U.S. 130, 136 (1985) (“As long as the crime and the
elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the
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right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or
other means of committing the same crime.”).
Burden of proof. Ormsby maintains that the district court effectively made her prove her
innocence. The district court, however, clearly explained to the jury that the government bore the
burden of establishing guilt. See, e.g., JA 263 (“[T]he Defendant starts the trial with a clean
slate . . . and the law presumes she is innocent. This presumption of innocence stays with her unless
the Government presents evidence here in court that overcomes that presumption and convinces you
beyond a reasonable doubt that she is guilty.”).
The district court also did not place the burden of proof on her by declining to add this
language to the “good faith defense” instruction: “you must acquit Susie Ormsby if you believe that
there is a reasonable doubt as to whether . . . she used any of the funds she received from the bingo
games for her own benefit.” JA 101. As we have shown, fraudulently obtained funds need not be
used for one’s personal benefit (however defined) to support a fraud conviction. See Neal, 1985 WL
13112, at *2; see also Lombardo, 865 F.2d at 160; Bagdasian, 291 F.2d at 164; D. Ct. Op. at 8 (“The
suggestion that the instruction should have informed the jury that if the funds were used for a
charitable purpose, the defendant must be found not guilty, is equally faulty; the misrepresentation
pertains to which charitable purpose the funds were intended to support.”). Were the rule otherwise,
one could escape a fraud charge in connection with charitable giving simply by showing that the
money ended up serving some charitable purpose, even though it was not the purpose for which the
donor gave the money. Good as Ormsby may have been to share this money with others in the
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community, the donations were meant to go to the Meteer School, not to the friends of Susie
Ormsby.
Multiplicitous indictment. Ormsby next argues that the indictment’s listing of 15 mailings
as separate violations of the mail fraud statute violates the rule against multiplicitous indictments.
Because she raised this argument for the first time in a brief supporting her post-conviction motion
for acquittal, see JA 44–45, it is waived. See Fed. R. Crim. P. 12(b)(3)(B) (“[M]otion[s] alleging
a defect in the indictment” “must be raised before trial.”); United States v. Hart, 70 F.3d 854, 860
(6th Cir. 1995) (holding that defendant waived multiplicitous indictment claim when he did not raise
it prior to trial). The argument also lacks merit. See Badders v. United States, 240 U.S. 391, 394
(1916) (“[T]here is no doubt that the law may make each putting of a letter into the postoffice a
separate offense.”); United States v. Stull, 743 F.2d 439, 444–45 (6th Cir. 1984) (“Use of the federal
mails is not only a jurisdictional requirement, it is the gist of the crime of mail fraud. Each use of
the mails in furtherance of a scheme to defraud therefore may be separately and cumulatively
punished.”) (internal citation omitted).
Internal inconsistency of the verdict. Noting that the jury acquitted her on 13 of the 15
counts charged, Ormsby says that the verdict must be internally inconsistent. Not only does an
inconsistent verdict fail to “provide a basis for revers[ing]” a conviction, United States v. Samuels,
308 F.3d 662, 669 (6th Cir. 2002), but this conviction also is not inconsistent. Each mail fraud
charge required evidence of a separate mailing. And the government’s evidence relating to use of
the mails was far stronger on the counts of conviction than on the other counts. Compare JA 238
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(Susan Clay testifying that she recalled mailing the quarterly reports that formed the basis of
Ormsby’s conviction), with, e.g., JA 189 (McKee testifying that he did not know whether checks
from the Scott County Touchdown Club “were mailed, hand-delivered, or went to the moon”).
Jury Instructions. Ormsby claims that the jury instructions did not allow the jury to acquit
her on any one count even if it found that the item referenced in that count was not mailed. The jury
instructions, however, created no such problem. The court explained that, although Ormbsy had
been charged with several crimes, “this should not influence [the jury’s] decision in any way.” JA
265. “For each charge,” the court emphasized, the jury “must decide whether the Government
has . . . presented proof beyond a reasonable doubt that the Defendant is guilty of that particular
charge.” Id. The court then said that each count represented a charge of mail fraud, and that to find
Ormsby guilty of mail fraud, the jury “must find that the Government has proved each and every one
of the following elements beyond a reasonable doubt.” Id. One of the elements was that “the
Defendant used the mail or caused another to use the mail in furtherance of the scheme.” JA 266.
Seizing upon language the district court used to wrap up this part of its instructions, Ormsby
says that the instructions left a different impression. The court directed the jury to “return[] a guilty
verdict on these charges” if it was “convinced that the Government ha[d] proved all of the elements”
and to “find the Defendant not guilty of these charges” if it had “a reasonable doubt about any one
of the elements.” JA 267. According to Ormsby, this instruction charged the jury with making only
one decision with regard to all fifteen counts of mail fraud. We do not see it this way. Not only does
this language fail to say what Ormsby claims it says and not only does it contradict the explicit
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language of the district court’s earlier instruction to consider each count separately, but Ormsby’s
argument is also not even supported by the jury’s decision, which indeed acquitted on some charges
and convicted on others.
III.
For these reasons, we affirm.
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