United States of America, Appellee/cross v. Larry R. Williams, Appellant/cross , 935 F.2d 1531 ( 1991 )

ROSS, Senior Circuit Judge.

These consolidated appeals¹ arise from two related cases in which Larry R. Williams (Williams) was the defendant. The first case (the cattle case) deals with Williams’ conviction of six counts of selling cattle and timber that had been pledged as collateral to the Farmers’ Home Administration (FmHA), in violation of 18 U.S.C. § 658. The district court sentenced Williams to twenty-four months imprisonment and twenty-four months supervised release after enhancing the offense level on the basis of evidence of Williams’ attempt to influence two jurors. The government then tried Williams on two counts of influencing a juror in violation of 18 U.S.C. § 1503; Williams was convicted on both counts. The second case (the jury tampering case) deals with Williams’ conviction of two counts of jury tampering. The district court refused to impose an additional sentence on Williams for the jury tampering convictions. The district court believed that enhancing Williams’ sentence in the cattle case on the basis of jury tampering and thereafter sentencing Williams for jury tampering would constitute multiple punishment in violation of the Double Jeopardy Clause of the Fifth Amendment. Nevertheless, the district court did impose a four month sentence in the jury tampering case because Williams had committed the jury tampering while he was on bond.²

Williams now appeals the convictions in the cattle case. Both parties appeal the sentence imposed in the jury tampering case. We affirm the convictions in the cattle case but remand both cases for re-sentencing.

I. FACTS.

The government charged Williams with fraudulently selling timber and cattle which he had pledged to the FmHA as collateral on a loan. The first six counts charge, under 18 U.S.C. § 658, illegal sales of cattle from August 1984 to April 1989. Each of those counts only charges conduct occurring within one calendar year; for instance, count one charges the illegal sales occurring in 1984, count two charges those occurring in 1985, and so on. Counts seven and eight charge two illegal sales of timber during 1987. The jury convicted Williams on counts three through eight, for the sales of cattle and timber made between 1986 and 1989.

The case was scheduled for trial on February 26, 1990. After a jury was selected and sworn, the court excused the jurors and directed them to return for trial on February 28. The two day delay was intended to afford the court an opportunity to dispose of pending motions. Before the jury returned, a third party contacted two of the jurors and attempted to influence them on behalf of Williams. The jurors promptly reported these contacts to the trial judge who then questioned the jurors. The court told counsel about the problem. The government proposed that the two jurors be dismissed, the sole alternate be seated, and the trial proceed with eleven jurors. Because Williams objected to proceeding with eleven jurors, the government moved for a mistrial which the district court granted over Williams’ objection.

In another pretrial ruling, the court refused to compel the attendance of an FmHA official, Neal Johnson, after holding a telephone conference with Mr. Johnson. Williams contended that Mr. Johnson was a necessary witness for the proper presentation of another of Williams’ pretrial motions, a motion to dismiss for selective prosecution. Similarly, when the case finally went to trial and after the government had finished presenting its ease, Williams announced that his first four witnesses would be four attorneys who had represented Williams in civil litigation against the FmHA during periods covered by the indictment. The court ruled that the evidence could not be presented as a defense because it was not relevant to the issue of intent.

In still another pretrial ruling, the district court denied Williams’ motion for change of venue. The fact that the first attempt to try the case ended in a mistrial was reported in the local news media along with allegations that Williams was involved in the jury tampering. Because of the news reports, Williams moved for a change of venue, claiming that widespread publicity would deny him a fair trial. The voir dire revealed that fourteen venirepersons had seen or heard some of the news reports. The court carefully screened the fourteen and struck only one for already having formed an opinion that Williams was guilty. A second venireperson was struck because of her association with a potential government witness. Williams’ motion to strike for cause the remaining twelve was denied, and only two of the twelve were seated on the jury.

After the presentation of the case, the jury sent two notes to the court. The first note stated, “All counts saying that he’s guilty from evidence that we’ve seen, but not guilty as charged of criminal intent.” The court acknowledged that, while the note was difficult to understand, the jury was apparently requesting an explanation of something. Williams’ counsel suggested, and the court agreed, that the jury might be referring to the statutory phrase “intent to defraud” which appeared in Instruction 11. The court, without objection from Williams or the government, referred the jury to Instruction 11, which the court stated, “[Cjontains the elements of the charges.”

Later, the jury sent another note which asked “Could one of our jurors talk to the judge concerning criminal intent?” Williams’ counsel proposed that the court respond, “The jury should refer to court’s Instruction No. 11.” Instead, the court responded, over Williams’ objection, “Instruction 11 defines intent to defraud. I cannot speak with any juror about the matter.” Thereafter, the jury returned verdicts of guilty on counts three through eight and verdicts of not guilty on counts one and two.

At the August 2, 1990 sentencing hearing in the cattle case, the court took judicial notice of the testimony of Bill Silliman, the person who improperly contacted the two jurors in February. Silliman gave sworn testimony, at his own guilty plea hearing, that he had attempted to influence the jurors on behalf of Williams at Williams’ request. On the basis of the government’s charges of influencing a juror and Silli-man’s testimony, the district court increased Williams’ base offense level by two points for obstruction of justice.

Afterwards, on August 20, 1990, the government proceeded to trial against Williams on the two charges of jury tampering in violation of 18 U.S.C. § 1503. The jury convicted on both counts. Nevertheless, the district court did not impose a sentence on these convictions because it thought that to do so would constitute double jeopardy, inasmuch as Williams’ sentence on the fraud convictions in the cattle case had been enhanced on the basis of jury tampering. The court did impose a four month sentence enhancement pursuant to 18 U.S.C. § 3147, because Williams committed the jury tampering offense while free on bond.

On appeal from the fraud convictions, Williams raises fourteen points of error. Both Williams and the government raise double jeopardy issues relating to the jury tampering convictions and sentencing. The government appeals the district court’s decision not to impose a harsher sentence on the jury tampering convictions, and Williams challenges, on double jeopardy grounds, the four month sentence enhancement imposed under 18 U.S.C. § 3147.

II. THE CATTLE CASE.

The indictment charged Williams with eight counts of violating 18 U.S.C. § 658, which authorizes the criminal punishment of “[w]hoever, with intent to defraud, knowingly conceals, removes, disposes of, or converts to his own use or to that of another, any property mortgaged or pledged to, or held by, ... the Secretary of Agriculture acting through the Farmers’ Home Administration....” Williams now claims that the district court’s responses to the two notes from the jury had the effect of completely deleting the words “intent to defraud” from Instruction 11, thereby allowing the jury to find Williams guilty of the § 658 violations without finding the necessary intent to defraud.

In this appeal, Williams’ bottom line seems to be that Instruction 11 is defective in that it did not adequately address the issue of “intent to defraud.” However, because Williams made no objection at trial to Instruction 11, he now argues instead that the court’s responses to the jury’s notes somehow changed the content of Instruction 11. We note that the court’s responses to both notes merely directed the jury to review Instruction 11. Williams cannot argue now that the instruction is a correct statement of the law, while arguing at the same time that the court’s directions to the jury to review Instruction 11 resulted in the deletion of an essential element of the offense. It seems that Williams is attempting some type of back door attack on Instruction 11 since he failed to object to the instruction in the first place. We, therefore, restrict our analysis of Williams’ “intent to defraud” argument to whether Instruction 11 was plain error resulting in a miscarriage of justice.

We begin this analysis by examining Instruction 11. In Instruction 11, the court addressed the elements of a § 658 violation. This instruction reads as follows:

ELEMENTS OF OFFENSE;

BURDEN OF PROOF

The crime of knowingly disposing, with the intent to defraud, of property that had been pledged as collateral for a government loan, as charged in each count of the indictment, has two essential elements, which are:

One, concealing, removing, disposing of, or converting to one’s own use or the use of another, property that was pledged as collateral to the Farmers’ Home Administration; and

Two, doing that act knowingly.

For you to find the defendant guilty of the crime charged under any count, the government must prove all of these essential elements beyond a reasonable doubt as to that count; otherwise you must find the defendant not guilty of the crime charged under that count.

As pointed out above, Williams made no objections to Instruction 11 at trial; indeed, both parties agreed that Instruction 11 was a correct statement of the law. Therefore, our review of Instruction 11 is limited to plain error. As this court stated in United States v. Sanders, 834 F.2d 717, 719 (8th Cir.1987):

Issues not properly preserved at the district court level and presented for the first time on appeal ordinarily will not be considered by this court as a basis for reversal unless there would be plain error resulting in a miscarriage of justice. Fed.R.Crim.P. 52; Edwards v. Hurtel, 724 F.2d 689, 690 (8th Cir.1984) (per curiam).

It was error for the court to exclude the third element of a § 658 violation, i.e., that the act of concealing, disposing of, etc. collateral be committed with the intent to defraud. See United States v. Porter, 842 F.2d 1021, 1026 (8th Cir.1988); United States v. Grissom, 645 F.2d 461, 463-64 (5th Cir.1981). We cannot say, however, that the omission of this third element, under Williams’ set of facts, rises to the level of plain error.

This court “evaluates the adequacy of a trial court’s instructions by considering them as a whole.” United States v. Casperson, 773 F.2d 216, 223 (8th Cir.1985); see also United States v. Ribaste, 905 F.2d 1140, 1143 (8th Cir.1990). We note that here, the words “intent to defraud” are present in Instruction 11, “proof of intent” is covered in Instruction 12³ and “intent and motive” are discussed in Instruction 13⁴.

Here, the jury made clear that it understood that intent to defraud was an essential element of the crime by asking the court to define the term. Williams’ counsel made no objection to the court’s response to the first note. Furthermore, the jury returned a guilty verdict only on Counts three through eight. These charges occurred during 1986 and after, when Williams sold mortgaged property in other persons’ names and funnelled the funds through sham accounts.

On the other hand, the jury found Williams not guilty on Counts one and two. These counts dealt with the sale of mortgaged cattle during 1984 and 1985. The evidence showed that during these years Williams sold mortgaged cattle in his own name. We believe that the difference in the jury’s verdict on the fraud charges indicates that the jury was able to separate the proof on the various counts of the indictment, correctly apply the instructions to the evidence, and appropriately consider the intent to defraud element.

We recognize that the addition of the third element or simply a definition of “intent to defraud” would have made Instruction 11 complete. However, under these facts, where Williams so blatantly defrauded the United States Government and where “intent” and “proof of intent” were set forth elsewhere in the instructions, we find that any error resulting from the omission of the third element was harmless error. In the recent case of Arizona v. Fulminante, — U.S.-, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), the Supreme Court stated:

Since this Court’s landmark decision in Chapman v. California, 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705] (1967), in which we adopted the general rule that a constitutional error does not automatically require reversal of a conviction, the Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.

Id. at-, 111 S.Ct. at 1263. In Fulminante, the Supreme Court pointed to several cases to support its finding that most constitutional errors can be harmless. Two of the cases mentioned in its opinion, which are significant to our discussion in the instant case, are Carella v. California, 491 U.S. 263, 266-67, 109 S.Ct. 2419, 2420-21, 105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous conclusive presumption may constitute only harmless error, case remanded for lower court to make that determination in the first instance) and Pope v. Illinois, 481 U.S. 497, 501-04, 107 S.Ct. 1918, 1921-23, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of the offense may constitute only harmless error, case remanded for lower court to make that determination in the first instance).

We find that any error in the instant case falls within this category of harmless error and that no miscarriage of justice resulted from using Instruction 11 or from the district court’s responses to the two notes. We also note that “the evidence of [Williams’] guilt on the indictment as a whole was overwhelming....” United States v. Sanders, supra, 834 F.2d at 720. Therefore, we find no plain error in Instruction 11.

In addition to his arguments relating to “intent to defraud,” Williams raised several other issues on appeal. We will address these other issues, which can be most expediently resolved. Williams claims that the district court erred in denying his motion to dismiss for selective prosecution. In order to prevail on this claim, Williams must demonstrate: (1) that he has been singled out for prosecution while others similarly situated have not been prosecuted for similar conduct; and (2) that the government’s action was based on an impermissible motive such as race, religion or an attempt by the defendant to secure other constitutional rights. United States v. Holmes, 794 F.2d 345, 347 (8th Cir.1986). Williams relied primarily on a May, 1990 article appearing in the Farm Journal which indicated that the FmHA had forgiven substantial farm loan indebtedness in Arkansas. Williams has failed to explain, however, how the article establishes that those Arkansas farmers, whose indebtedness was forgiven, were similarly situated to Williams. Accordingly, we reject this argument.

Williams also complains that the district court erred in dismissing the indictment on grounds of prosecutorial misconduct. The “prosecutorial misconduct” to which Williams objects is that the same Assistant United States Attorneys were participating in both civil and criminal proceedings against him. Williams cites no authority in support of his argument that this is impermissible, nor are we aware of any such authority. Therefore, this argument is also rejected.

Williams also protests that the FmHA refused to disclose “everything that was in the file of Larry R. Williams” and that “[t]he lower Court did not lift one finger to assist in obtaining this information when this information was brought to the Court’s attention.” App. Brief at 20. Williams has failed to identify with precision the error of which he now complains. The government has suggested that Williams is complaining of the district court’s refusal to continue the trial until the FmHA complied with his discovery demands.⁵ The government informed the lower court that the FmHA had responded to Williams’ Freedom of Information request and that the FmHA probably would not have a “file” on Williams. In this appeal, the government argues that the district court properly denied the oral request for a continuance because there is no allegation that the United States Attorney’s Office failed to comply with proper discovery requests, nor has Williams made any showing that any information was withheld. We agree. The district court committed no error and we reject Williams’ argument.

Next Williams challenges the district court’s denial of his motion for a change of venue. He contends that “[ajlthough the Court tried to take adequate protection with these jurors, still that was in the back of their minds and one cannot say for sure whether or not it entered into their deliberations perhaps unconsciously.” App. Brief at 21. The district court has broad discretion to strike jurors for cause absent a showing of actual prejudice. United States v. Huddleston, 810 F.2d 751, 753 (8th Cir.1987). Williams certainly failed to show actual prejudice of any of the twelve venirepersons retained. Indeed, Williams seems to be arguing that the twelve venirepersons’ bias be presumed. This is not the law. Williams has failed to show that the district court abused its discretion in denying his motion to strike the twelve venirepersons. Accordingly, we are not persuaded by this argument and it, too, is rejected.

The district court also denied Williams’ motion to dismiss or in the alternative for a new trial based on the Agriculture Credit Act of 1987, 12 U.S.C. § 2001, et seq. Apparently, Williams is arguing that this statute, which provides certain rights and remedies in civil proceedings to debtors of the FmHA, erects a complete bar to prosecution for a debtor’s illegal disposal of collateral. Williams cites no authority for this proposition, nor are we aware of any such authority. This argument is also rejected.

Williams’ also argues that the trial court erred in not allowing expenses and arrangements to be made for the expert testimony of a real estate appraiser. This argument is without merit. Similarly, Williams’ argument that the trial court erred in declaring a mistrial in February is frivolous, inasmuch as Williams himself caused the mistrial by attempting to bias two jurors.

We find no reason to disturb the jury’s verdict. Therefore, Williams’ fraud convictions are affirmed.

III. THE JURY TAMPERING CASE.

After Williams was convicted of jury tampering, the district court calculated his total offense level under the Sentencing Guidelines to be twenty⁶. Williams was found to have a criminal history category of I. Therefore, in this case, the Guidelines call for a range of imprisonment of thirty-three to forty-one months. The district court sentenced Williams to thirty-seven months imprisonment (thirty-three months for jury tampering and four months enhancement for committing the offense while on bond). The district court then voided the thirty-three months for jury tampering, reasoning that since Williams had already received a “sentence” for the jury tampering (in the form of a two-level enhancement for obstruction of justice in the cattle case), that another sentence for the same offense would violate the Double Jeopardy Clause of the Fifth Amendment. The remaining four months were to run consecutive to the sentence in the cattle case.

We disagree. Although the court in the cattle case inquired into the jury tampering offense during the sentencing hearing, at no time was Williams put “in jeopardy” for the jury tampering until the actual trial for the jury tampering. “Rather, [Williams] was only put ‘in jeopardy’ of receiving a harsher sentence for the [fraud counts] than he otherwise would have received.” United States v. Koonce, 885 F.2d 720, 722 (10th Cir.1989).

In any event, we believe that the Sentencing Guidelines adequately address Williams’ situation. In § 3D1.2(c) of the Guidelines, “Groups of Closely-Related Counts” are defined to include a situation “[w]hen one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts.” Application Note 5 further explains this subsection:

Subsection (c) provides that when conduct that represents a separate count, e.g., bodily injury or obstruction of justice, is also a specific offense characteristic in or other adjustment to another count, the count represented by that conduct is to be grouped with the count to which it constitutes an aggravating factor. This provision prevents ‘double counting’ of offense behavior.

(emphasis added).

The Guidelines, in § 3D1.3(a), go on to spell out the correct procedure to be followed when a group of closely-related counts is involved in a defendant’s sentence:

In the case of counts grouped together pursuant to § 3D1.2(a)-(c), the offense level applicable to a Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of Chapter Three, for the most serious of the counts comprising the Group, i.e., the highest offense level of the counts in the Group.

Application Note 2 of this subsection explains that it is usually necessary to determine the offense level for each of the counts in a group in order to determine which of the counts carries the highest level.

In our opinion, the Guidelines call for the “grouping” of the cattle case and the jury tampering case. The offense levels of the two cases should have been compared to determine which case carried the highest offense level. The district court gave the cattle case an offense level of seventeen and the jury tampering case received an offense level of twenty. Therefore, the highest of these, twenty, is the offense level which should have been assessed on the “group.”

Furthermore, we see no difference in enhancing a defendant’s criminal history category on the basis of conduct which has not yet resulted in a criminal conviction and enhancing a criminal history category on the basis of conduct which has already resulted in a criminal conviction. If, as Williams contends, the present situation constitutes a double jeopardy violation, then we would have to find that sentence enhancements which the federal courts utilize daily are also unconstitutional. We, therefore, reject Williams’ position and find that Williams' sentence enhancement on the basis of his prior criminal conduct plus the eventual imposition of a sentence on that same criminal conduct does not violate double jeopardy principles.

We, therefore, remand for resentencing with instructions to vacate the twenty-four month sentence in the cattle case, and add an additional thirty-three months to the four month sentence already in place for the jury tampering counts, thus resulting in a single thirty-seven month sentence for the “group.” We believe that such a sentence does not violate the double jeopardy clause, nor does it violate Williams’ due process rights. See Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989).

IV. CONCLUSION

We affirm Williams’ fraud convictions and remand both cases for resentencing in accordance with the instructions set out above.

1 . No. 90-2331 was submitted to the panel on January 10, 1991. On the court’s own motion on March 11, 1991, No. 90-2771 and No. 90-2870 were taken under submission by the panel on the briefs and joined with Case No. 90-2331.

2 . Congress has provided for such an enhancement in 18 U.S.C. § 3147 which provides:

A person convicted of an offense committed while released under this chapter shall be sentenced, in addition to the sentence prescribed for the offense to—

(1) a term of imprisonment of not more than ten years if the offense is a felony; or

(2) a term of imprisonment of not more than one year if the offense is a misdemeanor. A term of imprisonment imposed under this section shall be consecutive to any other sentence of imprisonment.

3 . Instruction 12 states:

PROOF OF INTENT

Intent may be proved by circumstantial evidence. Indeed, it can rarely be established by any other means. We simply cannot look into the head or mind of another person. It is impossible physically to do that. So, while witnesses may see and hear and so be able to give direct evidence of what a defendant does or fails to do, of course, there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the particular offense charged.

4 . Instruction 13 states:

INTENT AND MOTIVE

Intent and motive should never be confused. Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted.

Personal advancement and financial gain are two well-recognized motives for much of human conduct. These motives may prompt one person to voluntary acts of good, another to voluntary acts of crime.

Good motive alone is never a defense where the act done or omitted is a crime. So, the motive of a defendant is immaterial except insofar as evidence of motive may aid determination of state of mind or intent.

5 . Apparently, Williams' request for a continuance was oral. The basis of the request was that Williams had requested information from the FmHA but never received the information. Thus, Williams asked that the trial be continued until the FmHA complied with his requests.

6 . Williams’ total offense level was calculated as follows:

2 counts of jury tampering. (Guidelines § 2J1.2) 12 base level

Substantial interference with justice. (Guidelines § 211.2(b)(2)) 3 level enhancement

Perjury during trial. (Guidelines § 3C1.1) 2 level enhancement

Committed crime on bond. (Guidelines § 2J1.7) 3 level enhancement

20 TOTAL OFFENSE LEVEL