United States v. Kennedy ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0210n.06
Filed: March 21, 2007
No. 06-3029
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
JOSEPH E. KENNEDY, ) SOUTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
Before: COOK and McKEAGUE, Circuit Judges; and EDGAR, District Judge.*
PER CURIAM. Joseph E. Kennedy, proceeding pro se, appeals his conviction for
conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, conspiracy to commit mail fraud
and to defraud the United States in violation of 18 U.S.C. §§ 371 and 1341, and substantive mail
fraud in violation of 18 U.S.C. § 1341. Kennedy raises numerous challenges to his conviction. We
affirm.
I. Background
Kennedy and his co-defendants, Steven A. Ritchey and Joseph W. Flickinger, engaged in a
bogus check scheme to defraud the Internal Revenue Service and individual financial clients.
Kennedy persuaded his investment clients to pay their federal taxes with counterfeit checks he
*
The Honorable Robert Allan Edgar, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 06-3029
United States v. Kennedy
supplied that were drawn on a fictitious European bank. Kennedy also advised Flickinger to pay his
clients’ federal taxes in the same manner. Kennedy was convicted and sentenced to 49 months in
prison. He now appeals.
II. Due Process and the Right to a Unanimous Jury Verdict
Kennedy first claims that he was denied due process because a juror allegedly slept through
the reading of the jury instructions, and the court did nothing to rouse him. Although the
government responds that Kennedy did not raise this issue below, he did file a post-verdict motion,
labeled “Motion to Renew Rule 29 Motion,” which complained of the juror’s alleged slumber.
Kennedy attached an affidavit to his post-verdict motion and his appellate brief in which several trial
attendees swore that Juror Number 7 slept through the jury instructions. The record shows that the
district court entered judgment against and sentenced Kennedy without ruling on his motion. When
a district court fails to rule on a claim, we usually remand for consideration below. Dualite Sales
& Serv., Inc. v. Moran Foods, Inc., 194 F. App’x 284, 291 (6th Cir. 2006). In some circumstances,
particularly when a claim raises an issue that “is narrow and specific, and the [district court’s]
implicit determination clear beyond any doubt, we may yet review to avoid the expensive alternative
of remand for a practically assured pro forma express determination conforming to that one
necessarily implicit in the judgment.” Id. (internal quotation omitted).
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United States v. Kennedy
Because Kennedy did not object to the alleged juror misconduct as it happened, only bringing
it to the district court’s attention a week after the guilty verdict, we review for plain error. United
States v. Critton, 43 F.3d 1089, 1094 (6th Cir. 1995). We find none.
Kennedy’s only support for his contention is the affidavit discussed above. Even if the juror
slept through the jury instructions, Kennedy fails to show, or even allege, that such behavior “had
a prejudicial effect on his defense.” United States v. Sherrill, 388 F.3d 535, 537-38 (6th Cir. 2004);
United States v. Olano, 62 F.3d 1180, 1188 (9th Cir. 1995). Additionally, the jurors received a
written copy of the instructions to review during deliberations, which cured any prejudice Kennedy
may have suffered. Cf. Olano, 62 F.3d at 1189.
III. Jury Instruction Challenge
Next, Kennedy claims the district court erred by not instructing the jury that co-defendant
Ritchey had died before trial and Kennedy could not be convicted of conspiring with him. We find
this argument unsupported by any legal authority and meritless. Under federal conspiracy law, even
“if charges are never brought against other alleged coconspirators, if charges are dismissed against
all other coconspirators, or if a coconspirator has not yet been tried, dismissal of charges against the
remaining conspirator is not required.” United States v. Sachs, 801 F.2d 839, 845 (6th Cir. 1986).
IV. Admissibility of Flickinger’s Testimony
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United States v. Kennedy
Kennedy also contends that the district court erroneously admitted the testimony of co-
defendant Flickinger, who testified about his involvement in the bogus check scheme. Kennedy
maintains that the common law as it existed in 1791 prohibited such testimony from an interested
party with a criminal conviction and that any later-developed rule permitting such testimony is
unconstitutional. Given Congress’s plenary authority over the promulgation of evidentiary rules for
the federal courts, we view this argument as frivolous and decline to address it.
V. Motion for a Bill of Particulars
Kennedy also complains about the district court’s denial of his motion for a bill of
particulars. To succeed in his challenge, “the defendant must show not only that the court abused
its discretion, but that [he] actually suffered surprise or other prejudice at trial.” United States v.
Crayton, 357 F.3d 560, 568 (6th Cir. 2004) (internal quotation omitted).
Aside from a vague reference to a denial of due process, Kennedy fails to show or allege any
surprise or other prejudice at trial resulting from the denial of his motion. Nor does he assert that
the indictment is so vague that a bill of particulars is necessary to protect him from subsequent
prosecution for the same crimes. The district court did not abuse its discretion by denying
Kennedy’s motion.
VII. Constructive Amendment of the Indictment
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United States v. Kennedy
Kennedy next claims that the government constructively amended the indictment by
introducing evidence of uncharged conduct. But “no constructive amendment arises from the
admission of acts not charged in the indictment when the court’s instructions to the jury preclude the
possibility that the defendant was convicted on those acts.” United States v. Apodaca, 843 F.2d 421,
428 (10th Cir. 1988). The court here twice gave such limiting instructions, both when the other-acts
evidence was introduced and at the conclusion of trial. These instructions eliminated the possibility
that Kennedy was convicted of offenses other than those charged in the indictment.
VIII. “Readoption” of all Pretrial Motions
Finally, without citing any authority, Kennedy’s brief “readopt[s] and reincorporat[es]” all
of his pretrial motions. “The incorporation by reference of arguments made at various stages of the
proceeding in the district court does not comply with the Federal Rules of Appellate Procedure,” and
we have explicitly disallowed this practice. Northland Ins. Co. v. Stewart Title Guar. Co., 327 F.3d
448, 452 (6th Cir. 2003) (citing Fed. R. App. P. 28(a)(9)); see also Snyder v. United States, 23 F.
App’x 212, 213 (6th Cir. 2001) (“Snyder’s attempt to merely incorporate his district court claims by
reference does not serve as an appellate argument.”). We deem these additional arguments forfeited.
Northland, 327 F.3d at 452-53 (citation omitted).
IX. Conclusion
For these reasons, we affirm.
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