United States v. Wilbur Wilkinson ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 96-3448/3774
___________
United States of America, *
*
Appellee, * Appeals from the United States
* District Court for the District
v. * of
* North Dakota.
Wilbur D. Wilkinson, *
*
Appellant. *
*
___________
Submitted: May 20, 1997
Filed: September 5, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
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BOWMAN, Circuit Judge.
A jury found Wilbur Dale Wilkinson guilty of embezzling, misapplying,
and converting tribal funds from an Indian tribal organization in violation
of 18 U.S.C. § 1163 (1994); misapplying funds under the care, custody, and
control of an Indian tribal government receiving federal grants in excess
of $10,000 in violation of 18 U.S.C. § 666(a)(1)(A) (1994); knowingly and
willfully making false material statements in violation of 18 U.S.C. § 1001
(1994); and aiding and abetting the above activities
in violation of 18 U.S.C. § 2 (1994). Having been sentenced by the
District Court,1 Wilkinson appeals his convictions. We affirm.
I.
The following facts are based on the evidence, with disputed
questions of fact deemed to have been resolved by the jury in a manner that
supports its verdict. Wilkinson was Chairman of the Three Affiliated
Tribes (the Tribe) at all times relevant to the illegal activities charged
in the indictment. The Tribe is located on the Fort Berthold Indian
Reservation in North Dakota and qualifies as an Indian tribal organization
under 18 U.S.C. § 1163 (1994). In July 1991, Wilkinson completed, signed,
and submitted an application to the Bureau of Indian Affairs (BIA) for a
Management and Technical Assistance grant for the purposes of hiring a
consultant to assist the tribal loan office in resolving defaulted loans.
The grant application stated that the Tribe would be responsible for hiring
the individual consultant. As a result of this application, the Tribe
received approximately $68,000 in 1992 and $105,000 in 1993. The $105,000
disbursement was made under the condition that the Tribe comply with
special reporting and supervision requirements imposed by the BIA. These
conditions were placed on the receipt of these funds after the Tribe
neglected to comply with standard reporting procedures after receiving the
$68,000 payment in 1992. A Commitment Order between the Tribe and the BIA
outlining the applicable conditions was signed by Wilkinson on behalf of
the Tribe.
The $105,000 check was received and endorsed by Wilkinson on behalf
of the Tribe and deposited in a supervised account opened in the name
"Three Affiliated Tribes and the Bureau of Indian Affairs, Technical
Assistance." Signatories on the account included two tribal officials and
two BIA officials; withdrawals from the
1
The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota.
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account required the signature of two parties--one from the Tribe and one
from the BIA. Wilkinson was not a signatory on this account.
In September 1993, Wilkinson approached his nephew's wife, Kaye
Wilkinson, and, promising to train her in the consulting business, offered
her the position described in the grant application. In tendering to Kaye
the proposed consulting agreement between her and the Tribe, Wilkinson
represented, contrary to the terms of the proposed agreement, that she
would receive ten percent of the proceeds earned under the agreement and
he would receive the remaining ninety percent. Based on these
representations, Kaye accepted the position and executed the consulting
agreement, which provided that she would perform the consulting duties in
return for an hourly wage and reimbursement of expenses.
Wilkinson presented this consulting agreement to tribal officials and
the BIA superintendent and, without Kaye's knowledge, represented to them
that Kaye needed a $20,000 advance for start-up expenses. Pursuant to
Wilkinson's direction, the tribal credit officer, a signatory of the
supervised account, prepared and signed a $20,000 check made payable to
Kaye and obtained the requisite counter-signature of the BIA
superintendent. Wilkinson then personally delivered this check to Kaye's
home and, because Kaye was not there, demanded that her husband, Spencer
Wilkinson Jr., endorse and deposit the check, keep $2,000 for Kaye, and
return $18,000 to Wilkinson in cash. Spencer Jr., surprised at the size
of the payment and worried about the potential tax consequences of the
transaction, called Kaye who communicated her understanding that she was
to receive only $2,000 and who could not explain why a check for $20,000
was issued in her name. Despite his misgivings, Spencer Jr. deposited the
check and, rather than returning $18,000 in cash, wrote a personal check
to Wilkinson for $18,000. Spencer Jr. testified that Wilkinson chastised
him for his failure to obtain cash, but grudgingly accepted the personal
check.
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Kaye performed no consulting work, received no training from
Wilkinson, and submitted no progress reports to the Tribe or the BIA for
the next several months. Eventually, however, BIA officials began to
wonder whether any work was being performed to justify the $20,000 advance
payment made to Kaye. Officials called Kaye on a number of occasions
inquiring about her progress on the delinquent loan accounts and Kaye,
because she was expecting guidance from her uncle, called Wilkinson who
informed her that he was on top of the situation.
In April 1994, Wilkinson delivered to Kaye handwritten reports
summarizing the current status of some problem loans and requested that she
type the reports. The information contained in these reports was derived
from files obtained by Wilkinson from the tribal loan office and did not
signify any progress on the resolution of the delinquent loans. Once
typed, these reports, which provided little if any new information, were
submitted to the BIA and represented by Wilkinson to be Kaye's work product
under the consulting agreement.
Also in April 1994, Wilkinson procured seven blank consultant claim
statements and had them delivered to Kaye at work. She was directed to
sign the blank documents and return them to Wilkinson, which she did.
Wilkinson then completed these forms with fictitious numbers of miles
driven and hours worked by Kaye in relation to the consulting agreement for
each month from October 1993 through April 1994. Wilkinson then presented
these claim statements, totaling $7,972.25, for verification to tribal
officials who signed them at Wilkinson's direction. A check was issued by
the tribal credit officer and, after a cursory inquiry into the legitimacy
of the claims, the BIA superintendent eventually counter-signed the expense
check. Wilkinson delivered the check, issued in Kaye's name, to her home
and, because Kaye was not there, presented the check to Spencer Jr. and
insisted that he keep $2,000 for Kaye and return the remainder of the funds
to Wilkinson in cash. Spencer Jr., having become even more suspicious of
the arrangement, denied that Kaye had performed sufficient consulting work
to warrant an additional $2,000 payment and consequently wrote a
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personal check to Wilkinson for the full $7,972.25. Spencer Jr. deposited
the expense check in his and Kaye's joint checking account the next day.
An investigation was launched by BIA and FBI officials, leading to
Wilkinson's indictment by a grand jury and his subsequent trial.
II.
Wilkinson first argues that the District Court abused its discretion
by withdrawing two exhibits from evidence at the close of his case. Prior
to trial, in an effort to expedite the presentation of the documentary
evidence, the parties jointly prepared a binder containing the exhibits
each side intended to rely on during trial. The prosecution explained, and
defense counsel agreed, that although the foundation for these exhibits had
been established, their relevancy remained at issue and was to be
determined during the trial. The District Court understood that the
parties had "reserved the right to object to relevancy on documents, even
though foundation may have been established." Trial Tr. Vol. 1 at 12.
Included in the jointly prepared binder was Exhibit 32, a bill of
sale signed by Wilkinson and attested to by his brother, Virgil Wilkinson,
purporting to establish that Wilkinson sold a 1992 Chevrolet Camaro to his
nephew, Spencer Wilkinson, Jr. for $18,000. Also included was Exhibit 47,
a cash receipt for $7,972.25 signed by Wilkinson and attested to by Virgil.
During cross-examination of Spencer Jr., the defense attempted to show that
the $18,000 personal check written to Wilkinson by Spencer Jr. was payment
for the purchase of the Camaro and that the $7,972.25 check written to
Wilkinson was repayment of a $6,000 loan made by Wilkinson to Spencer Jr.
and a $1,792.25 earnest money payment from Spencer Jr. to Wilkinson for
farm equipment. Spencer Jr. specifically refuted these explanations for
the checks, denying that he had ever borrowed money from Wilkinson and
asserting that his father, Spencer Wilkinson Sr., rather than he, had
purchased the Camaro from Wilkinson. Defense
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counsel did not attempt to impeach this testimony through the use of
Exhibits 32 or 47 nor did defense counsel call Virgil, the attesting party
on both documents, to corroborate the theory that Spencer Jr.'s checks to
Wilkinson were for legitimate purposes.
Wilkinson called witnesses and presented a defense. At the close of
his proof, the government informed the District Court that it intended to
recall Spencer Jr. to rebut Wilkinson's theory that the two checks were
written to Wilkinson for legitimate reasons and to discount the
authenticity of the bill of sale and the cash receipt included in the
evidence binder because neither document had been published or explained
to the jury during trial. After a discussion in chambers, the government
agreed not to recall Spencer Jr. if Exhibits 32 and 47 were withdrawn.
Defense counsel objected, but the District Court eventually withdrew the
documents noting that they were "completely irrelevant to any appropriate
defense" and that "if . . . a kickback occurs, it is no defense that it
occurred to pay a preexisting debt or obligation." Id. Vol. III at 428.
Evidence is relevant if it has "any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence." Fed. R.
Evid. 401. Relevant evidence is generally admissible, while irrelevant
evidence is not. See Fed. R. Evid. 402. A district court's decision to
exclude evidence is reviewed for abuse of discretion, and "[w]e will
reverse only if the abuse is clear, and if the parties' substantive rights
are affected." Yannacopoulos v. General Dynamics Corp., 75 F.3d 1298, 1301
(8th Cir. 1996). The District Court excluded Exhibits 32 and 47 as
irrelevant after determining that even if the documents tended to establish
that Spencer Jr. owed Wilkinson a preexisting debt, repayment of that debt
by structuring an illegal kickback scheme operates as no defense to the
crimes charged in the indictment.
The parties only conditionally stipulated to the documentary
evidence, specifically reserving the issue of the relevance of each exhibit
for later determination
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by the District Court. The District Court did not abuse its discretion by
excluding Exhibits 32 and 47 on the ground that they were irrelevant to any
legitimate defense.
III.
Wilkinson next argues that the superseding indictment was
multiplicious and that the District Court erred in failing to dismiss or
consolidate the counts. We disagree. An indictment is multiplicious when
it charges a single offense in several counts. "The vice of multiplicity
is that it may lead to multiple sentences for the same offense." United
States v. Street, 66 F.3d 969, 975 (8th Cir. 1995) (quoting United States
v. Kazenbach, 824 F.2d 649, 651 (8th Cir. 1987) (further citations
omitted)). "[W]here the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not." Blockburger v. United
States, 284 U.S. 299, 304 (1932). The Blockburger test is met
"notwithstanding a substantial overlap in the proof offered to establish
the crimes." Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).
Wilkinson was charged in one count with embezzlement of tribal funds
in violation of 18 U.S.C. § 1163 (1994), in two separate counts with
misapplication of tribal funds in violation of 18 U.S.C. § 666(a)(1)(A)
(1994), and in two additional counts with making false statements in
violation of 18 U.S.C. § 1001 (1994). After reading and comparing the
three statutes, it is apparent that each requires proof of several facts
not required to establish the others. Likewise, the separate counts under
§ 666(a)(1)(A) relate to two distinct violations of the statute, as do the
separate counts under § 1001. While overlapping evidence was presented to
prove the violation of each count, this fact does not transform a properly
charged indictment into an impermissibly multiplicious one. Because each
charge required proof of at least one element that the others did not, the
indictment against Wilkinson was not multiplicious
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and the District Court did not err by denying Wilkinson's motion to dismiss
or consolidate the counts.
IV.
Wilkinson makes a related argument that, because each count of the
superseding indictment contained "multiple theories" upon which the jury
could base its decision, the jury was permitted to render an ambiguous
general verdict. In support of his "multiple theories" argument, Wilkinson
contends that Count I, for example, charged him "under at least three
different theories -- embezzlement, misapplication of funds, and
conversion." Appellant's Br. at 9. Count I charged Wilkinson with a
violation of 18 U.S.C. § 1163 (1994), which provides in pertinent part
that, "[w]hoever embezzles . . . knowingly converts to his use or the use
of another, [or] willfully misapplies" tribal funds "[s]hall be fined under
this title, or imprisoned." Count I and, in fact, all counts of the
superseding indictment, track the applicable statutory language.
Wilkinson draws our attention to United States v. Goodner Bros.
Aircraft, Inc., 966 F.2d 380, 384 (8th Cir. 1992), cert. denied, 506 U.S.
1049 (1993), in support of his ambiguity attack on the general verdict,
arguing that "when evidence supports a jury verdict on one ground, but not
another, and it is impossible to ascertain which ground was relied upon in
reaching the verdict, that verdict must be set aside." Appellant's Br. at
10. Wilkinson's reliance on Goodner and other similar cases is misplaced.
In the first place, we are not persuaded that on any of the counts of
conviction the evidence is insufficient to support the jury verdict on any
of the alternative statutory grounds charged in the indictment. Moreover,
in Goodner and the other cases Wilkinson cites, a guilty verdict was
overturned because the jury was presented with multiple theories on which
to base conviction and one of the theories was legally incorrect. See,
e.g., Goodner, 966 F.2d at 384. In those circumstances, because it was
impossible to know whether the jury based its verdict on a sound theory or
on the legally incorrect theory, the conviction was overturned. See, e.g.,
id. These
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cases, however, do not support Wilkinson's assertion that the verdict must
be set aside when the evidence is insufficient to support a general verdict
as to one of a number of legally correct theories submitted to the jury,
even though the evidence is sufficient to support the verdict on at least
one of the theories. In Turner v. United States, 396 U.S. 398, 420 (1970),
the Supreme Court held that "when a jury returns a guilty verdict on an
indictment charging several acts in the conjunctive, . . . the verdict
stands if the evidence is sufficient with respect to any one of the acts
charged." See also Griffin v. United States, 502 U.S. 46, 58-60 (1991)
(noting that general verdict cannot be set aside simply because one of the
possible bases of conviction is unsupported by adequate evidence). Here,
there is no allegation, nor could there be, that any of the "theories"
under which Wilkinson was charged is legally incorrect. Consequently, we
conclude that Wilkinson's "multiple theories" argument must fail.
V.
Wilkinson next argues that the government presented insufficient
evidence to establish that he had lawful possession over the funds he
allegedly embezzled, converted, or misapplied; that the funds involved were
tribal funds; or that he made material false statements. On review, we
must examine the evidence in a light most favorable to the government and
uphold the conviction if a reasonable-minded jury could have found guilt
beyond a reasonable doubt. See United States v. Easley, 70 F.3d 65, 67
(8th Cir. 1995), cert. denied, 116 S. Ct. 1338 (1996); United States v.
Whitaker, 848 F.2d 914, 916 (8th Cir. 1988) (noting that evidence is
sufficient if "there is substantial evidence to support the jury's
verdict"). We conclude that the government presented sufficient evidence
for the jury to return a guilty verdict on all counts of the indictment.
The indictment charged in Count I that Wilkinson "did embezzle,
willfully misapply, and knowingly convert" tribal funds to his own use in
violation of § 1163. Wilkinson argues that, because the indictment charged
in the conjunctive and the
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government failed to prove that he was initially in lawful possession of
the funds, a prerequisite to a conviction for embezzlement, his conviction
must be set aside. We disagree. Although the indictment charged in the
conjunctive, "[p]roof of any one of the violations charged conjunctively
in the indictment will generally sustain a conviction." United States v.
Vickerage, 921 F.2d 143, 147 (8th Cir. 1990). Furthermore, even if the
government failed to prove that Wilkinson was initially in lawful
possession of the funds, a proposition with which we do not necessarily
agree, the government nevertheless presented sufficient evidence to
establish that Wilkinson improperly misapplied or converted the funds to
his own use.
Lawful possession of funds is unnecessary to support a conviction
based on misapplication or conversion under § 1163. As to misapplication,
Wilkinson offers us no authority for the proposition that lawful possession
is an essential element of misapplication under § 1163, but there is
authority for the contrary proposition. See, e.g., United States v.
Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848 (1982)
(noting that misapplication does not require previous lawful possession).
As to conversion, Wilkinson relies on United States v. Hill, 835 F.2d 759,
764 (10th Cir. 1987), which, citing Morissette v. United States, 342 U.S.
246, 272 (1952), held that "[o]ne who comes into possession of property
by lawful means, but afterwards wrongfully exercises dominion over that
property against the rights of the true owner, commits conversion." We
cannot agree with the Tenth Circuit's, or Wilkinson's, definition of
conversion. In Morissette, the Supreme Court explained the broader nature
of conversion as contrasted with stealing. The Court noted, "Probably
every stealing is a conversion, but certainly not every knowing conversion
is a stealing. . . . Conversion . . . may be consummated without . . . any
wrongful taking, where the initial possession by the converter was entirely
lawful." Id. at 271-72 (emphasis added). Based on this discussion in
Morissette, we cannot conclude that a conviction for conversion requires
initial lawful possession of another's property. The knowing and
unauthorized exercise of dominion over another's property, though
possession is wrongful in the inception, is no less a conversion than is
the knowing and unauthorized
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exercise of dominion over another's property after possession is lawfully
obtained. See also 18 Am. Jur. 2d Conversion § 30 (1985) ("The unlawful
taking of goods out of the possession of the owner with intent to convert
them to the use of the taker is clearly a conversion."). Consequently, we
conclude that Wilkinson was not required to be in lawful possession of the
funds in order to be convicted under § 1163 of either misapplication or
conversion.
VI.
Wilkinson next argues that the government abused the grand jury
process by refusing to disclose the testimony of an FBI special agent who
was the sole witness before the grand jury. The government counters that
it did not release this transcript because it did not intend to, and did
not in fact, call the agent as a witness during Wilkinson's trial. In an
attempt to obtain copies of this testimony, Wilkinson served a subpoena
duces tecum on the government. A motion to quash the subpoena was granted
after the government stated that Wilkinson had been provided with copies
of interviews and documents used during the agent's grand jury testimony,
and that it was not required to release the transcript of the testimony.
Grand jury transcripts need only be released by the government insofar as
required under the Jencks Act, 18 U.S.C. § 3500 (1994), which provides: "no
statement or report in the possession of the United States which was made
by a Government witness . . . shall be the subject of subpena, discovery
or inspection until said witness has testified on direct examination in the
trial of the case," id. § 3500(a). While the Federal Rules of Criminal
Procedure authorize disclosure of grand jury transcripts under certain
circumstances, see Fed. R. Crim. P. 6(e)(3), parties seeking such
disclosure "must show a 'particularized need,' and the decision to permit
disclosure lies within the sound discretion of the trial judge," United
States v. Benson, 760 F.2d 862, 864 (8th Cir.), cert. denied, 474 U.S. 858
(1985). We cannot conclude that the District Court abused its discretion
in refusing to order disclosure of the special agent's grand jury testimony
given that she did not testify at trial and that Wilkinson failed to show
a particularized need for this testimony.
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Wilkinson's related argument that it was error for the grand jury to
indict based solely on the FBI agent's testimony is without merit. See
United States v. Levine, 700 F.2d 1176, 1179 (8th Cir. 1983) (holding that
grand jury may indict on whatever evidence is laid before it, even evidence
that would be inadmissible at trial).
VII.
Wilkinson also argues that during the trial the District Court made
inappropriate comments that prejudiced the jury and affected the outcome
of the trial. Because Wilkinson failed to object to these comments at
trial, we review for plain error. Wilkinson takes issue with two comments
made by the District Court in the presence of the jury. The Tribe's credit
officer, who worked closely with Wilkinson, testified on direct examination
that the handwriting appearing on the consulting agreement was Wilkinson's.
During cross examination of the credit officer, the District Court stated,
"You mean those terms that are in Mr. Wilkinson's handwriting?" Trial Tr.
Vol. I at 164. Wilkinson argues that this comment effectively precluded
the jury from making a determination that the handwriting was not
Wilkinson's. This witness also identified as Wilkinson's the handwriting
on the claims submitted on Kaye's behalf for reimbursement of mileage
expenses and payment of hourly wages. The credit officer further testified
that, according to the reports, Kaye worked each and every day in January,
including weekends, except for January 25. The District Court remarked,
"I have this terrible sense of humor, sir, but January 25th isn't a holiday
on the reservation, is it?" Id. at 173. Wilkinson argues that this
comment reflected the District Court's bias against him and affected the
outcome of his trial.
We note that the District Court cautioned the jury before opening
statements that "Questions from me are not evidence. Pleas [sic] do not
assume that I hold any opinion on matters to which my questions may have
related." Trial Tr. Vol. I at 31. We hesitate to disturb a judgment "'by
reason of a few isolated, allegedly prejudicial comments of a trial
judge.'" United States v. Lueth, 807 F.2d 719, 727 (8th Cir. 1986)
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(quoting United States v. Bland, 697 F.2d 262, 265 (8th Cir. 1983)). We
conclude that the comments identified by Wilkinson, if objectionable at
all, certainly do not amount to plain error requiring reversal.
VIII.
Although we forego discussion of Wilkinson's remaining arguments, we
have considered carefully these arguments and find them to be without
merit.
Wilkinson's convictions are affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT
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