Opinion
No. 02-40012-01-SAC
March 6, 2003
MEMORANDUM AND ORDER
This case comes before the court on defendant's post-trial motions for acquittal and a new trial. Defendant was convicted in January of 2003, of four counts of making a false representation to the government or concealing a material fact from the government by scheme in violation of 18 U.S.C. § 1001, and of one count of theft of money from the government, in violation of 18 U.S.C. § 641.
• MOTION FOR NEW TRIAL
In this motion, defendant makes three claims of error, which are each denied by the government.
Standards for Motion for New Trial
A court may grant the defendant a new trial "if required in the interest of justice." Fed.R.Crim.P. 33. Courts view motions for new trial with disfavor and grant them only with great caution. United States v. Chatman, 994 F.2d 1510, 1518 (10th Cir.), cert. denied, 510 U.S. 883 (1993). The defendant has the burden of proving the necessity of a new trial. United States v. Davis, 15 F.3d 526, 531 (6th Cir. 1994); United States v. Walters, 89 F. Supp.2d 1206, 1213 (D.Kan. 2000), aff'd, 28 Fed. Appx. 902 (10th Cir. Dec. 7, 2000). A new trial should be granted upon "[a]ny error of sufficient magnitude to require reversal on appeal." 3 Charles A. Wright, Federal Practice and Procedure § 556 (1982); see United States v. Stiner, 765 F. Supp. 663, 664 (D.Kan. 1991), aff'd, 952 F.2d 1401, 1992 WL 9020 (10th Cir. 1992) (Table). The decision whether or not to grant a new trial is committed to the sound discretion of the district court. See United States v. Patterson, 41 F.3d 577, 579 (10th Cir. 1994).
Prosecutorial Misconduct
Defendant first contends that the prosecutor repeatedly misstated evidence in his closing argument regarding the dates of defendant's employment. In support of this assertion of error, defendant offers a sole example: that government's counsel stated that defendant was employed during July 1998.
The decision of whether to grant a defendant's motion for new trial based on prosecutorial misconduct is committed to the discretion of the district court. See United States v. Gordon, 173 F.3d 761, 769 (10th Cir.) (citing United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996)), cert. denied, 528 U.S. 886 (1999). The court reviews claims of prosecutorial misconduct using a two-step process: first, was the conduct improper; and second, if improper, does the conduct warrant reversal. United States v. Lonedog, 929 F.2d 568, 572 (10th Cir.), cert. denied, 502 U.S. 854 (1991). Reversal is necessary only if the improper conduct influenced the verdict. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir. 1988). As to whether the misconduct affected the outcome of a trial, the court considers "the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a whole." Lonedog, 929 F.2d at 572. United States v. Cline, 2002 WL 1813195, *4 (D.Kan. 2002).
The court recalls testimony by defendant that he got his truck from Childress on July 28 or 30 of 1998, although he did not cash his first paycheck until October of that year. Defendant has neither offered to the court the correct date on which defendant was first employed by Childress, nor attached a transcript showing the statement by government's counsel which he challenges. Defendant has failed to show that any statement made by government's counsel during closing regarding defendant's employment in July of 1998 was erroneous, or that there was any misconduct by government's counsel.
Assuming, arguendo, that the prosecutor erred in stating the wrong date, and that the court's recollection of the evidence is also in error, the court finds that the improper conduct does not warrant a new trial. The dates of defendant's employment were revealed to the jury on the government's exhibit, which is not alleged to be incorrect, and which government counsel repeatedly referred to during his closing argument. The date defendant was initially hired by Childress, the date defendant received his truck from Childress, the date defendant actually started driving for Childress, and the date defendant received and/or cashed his first paycheck from that employer were all at issue and were addressed by the evidence admitted during trial. Additionally, defense counsel had ample opportunity to counter any misstatement by government's counsel in its own closing argument to the jury. Defendant has also failed to show the court the materiality of the misstatement, if any, as the indictment relates to defendant's statements of income both prior to and after September 3, 1998. The role of the misconduct, if any, within the case as a whole is thus negligible.
Further, the court instructed the jury, both during closing arguments and in its final instructions, that statements of counsel are not evidence in the case, and that the jury is to consider only the evidence in the case. The circumstances here are not so egregious as to suggest that the jury did not follow these instructions, as they are presumed to do. See United States v. Coleman, 7 F.3d 1500, 1505 (10th Cir. 1993). Thus, the defendant has not carried its burden of proving an error of such magnitude as necessitating a reversal. The court denies the defendant's request for a new trial based on the prosecutor's comments.
Non-unanimous verdict on Count Five
Defendant next contends that the jury's ability to choose between embezzlement and stealing as to Count V, without a special verdict specifying which of those events it agreed on, denied defendant his Sixth Amendment right to a unanimous verdict, citing United States v. Haber, 251 F.3d 881(10th Cir. 2001). "The Sixth Amendment guarantees a federal criminal defendant the right to a unanimous jury verdict." United States v. Linn, 31 F.3d 987, 991 (10th Cir. 1994).
Defendant's argument rests on an implicit contention that the indictment was duplicitous. "A duplicitous indictment charges the defendant with two or more separate offenses in the same count." United States v. Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998). One of the dangers of duplicity is that a jury may convict a defendant without unanimously agreeing on the same offense. Id. citing United States v. Wiles, 102 F.3d 1043, 1061 (10th Cir. 1996). The court declined at trial to force the government to elect to proceed on only one of the theories contained in this count, and finds no error in this decision.
Defendant did not request a jury instruction specifically explaining that the jury must unanimously agree as to whether defendant's taking of the government's property was accomplished by stealing or by embezzlement. The court included a general exhortation that the verdict must be unanimous in order to convict. See Inst. No. 25; United States v. Phillips, 869 F.2d 1361, 1366q-67 (10th Cir.) (if jury given general unanimity instruction and no realistic possibility of confusion, court will assume jury understood specific findings underlying verdict must also be unanimous), cert. denied, 490 U.S. 1069 (1988). Nor did defendant request a special verdict different than the one given by the court.
"It is assumed that a general instruction on the requirement of unanimity suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict." Phillips, 869 F.2d at 1366. See also United States v. McClure, 734 F.2d 484, 494 (10th Cir. 1984). Consequently, the court assumes "that the jury unanimously reached a decision as to all factual predicates on which it based [defendant's] conviction." Phillips, 869 F.2d at 1367. Thus, although the instructions might have allowed some members of the jury to determine that the crime was committed in different ways, this "does not go to the crime charged but only to one of several elements." Id. at 1367. Here, as in Phillips and in United States v. Powell, 226 F.3d 1181 (10th Cir. 2000), cert. denied, 531U.S. 1166 (2001), the different methods by which the crime may have been committed do not constitute separate crimes for which defendant was charged, or for which he could have been convicted under the indictment. Instead, they constitute different ways in which a single element of the crime for which he was charged might have been fulfilled. See Phillips at 1368, Powell, at 1195.
"When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . [a general] verdict stands if the evidence is sufficient with respect to any one of the acts charged." Griffin v. United States, 502 U.S. 46, 56-57 (1991) (quotation omitted); Haber, 251 F.3d at 888-889. Defendant does not contend that there was insufficient evidence to uphold the alternative theory of stealing. Therefore, assuming that the jury unanimity issue is properly before the court, it finds any error harmless. See Haber, 251 F.3d at 888-889.
Failure to Instruct
Defendant next contends that the court erred in rejecting two of defendant's proposed jury instructions. One, relating to ambiguous questions, was included in defendant's proposed instructions. The other, an instruction on entrapment by estoppel, was a supplemental proposed instruction filed on the afternoon of January 24, 2003, along with a memorandum of law. The court reviewed these documents prior to its instruction conference with counsel, and informed counsel at that conference of its decision not to include the requested instructions.
As the court stated at the instruction conference, defendant's requested Instruction 3, relating to ambiguous questions, contained more argument than law. Further, the court finds that any proper substance of the proposed instruction is adequately covered in other instructions which were given. See e.g., Instr. 9 ("If the jury views the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should of course adopt the conclusion of innocence."); Instr. 13 (good faith instruction); Instr. No. 15 (intent); Instr. 18 (weighing conflicting testimony); Instr. 22 (jurors to use good sense); Instr. 23 (statements and questions of counsel are not evidence).
The court also determined that the facts did not support the defense of entrapment by estoppel. In United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994), cert. denied, 513 U.S. 1005 (1994), the Tenth Circuit set forth the following elements of this theory:
The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution of the actor implicates due process concerns under the Fifth and Fourteenth amendments. There must be an "active misleading" by the government agent, and actual reliance by the defendant. Further, the defendant's reliance must be reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1166 (10th Cir.), cert. denied, 528 U.S. 1011 (1999), quoting Nichols, 21 F.3d at 1018.
In support of this theory, defendant points to testimony of Mr. Johnson, the executive director of Topeka Housing Authority, and Mr. Diers, a criminal investigator for HUD, that when they learned that defendant was working, they began a criminal investigation but did not reveal to the defendant either that fact or their knowledge of defendant's employment.
Defendant does not allege how such silence or inaction constitutes "active misleading" by any government agent, or what action defendant took in actual reliance upon any active misleading. The court finds neither element is met. The facts shown at trial in support of this theory, and those raised now, are insufficient to warrant instruction on this defense.
Accordingly, no reason for a new trial has been presented based upon the court's refusal to give either requested instruction. Because the court finds no substantial error in the course of the proceedings, it rejects defendant's contention that the cumulative effect of the errors is prejudicial to his right to a fair trial. Thus defendant's motion for a new trial shall be denied.
II. MOTION FOR ACQUITTAL
Defendant seeks relief from the jury's verdict on Count V of the indictment, i.e., stealing or embezzling money from the government, in violation of 18 U.S.C. § 641. During trial, defendant consistently contended that the charges of stealing and embezzlement were mutually exclusive means by which to violate the relevant statute. Defendant now contends that the government failed to prove the charge of embezzlement, but does not contend that insufficient evidence supports his conviction on the alternative charge of stealing.
The jury was instructed that to find defendant guilty on Count V, each of the following essential elements must be proved beyond a reasonable doubt:
First: that defendant embezzled and/or stole money with the intention of depriving the United States of the use or benefit of the money, as detailed in Count Five of the indictment;
Second: that defendant acted knowingly and willfully in embezzling and/or stealing such money; and
Third: that such money was property of the United States or an agency thereof.
Instr. No. 11.
Defendant does not challenge the above instruction, or the court's instructions to the jury which defined relevant terms to include the following:
"Embezzle" means to gain possession of property by lawful means and thereafter wrongfully exercise dominion over that property against the rights of the true owner.
"Steal" means to gain possession of the property of another by wrongfully taking it from one who lawfully possesses it.
Inst. No. 12.
Standards for Motion for Judgment of Acquittal
In considering a motion for judgment of acquittal, the court cannot weigh the evidence or consider the credibility of witnesses. See Burks v. United States, 437 U.S. 1, 16 (1978). Instead, the court must "view the evidence in the light most favorable to the government and then determine whether there is sufficient evidence from which a jury might properly find the accused guilty beyond a reasonable doubt." United States v. White, 673 F.2d 299, 301 (10th Cir. 1982). The court construes both direct and circumstantial evidence, together with all reasonable inferences that could be drawn therefrom, in the light most favorable to the government. See United States v. Hooks, 780 F.2d 1526, 1531 (10th Cir.), cert. denied, 475 U.S. 1128 (1986). Acquittal is proper only if the evidence implicating defendant is nonexistent or is "so meager that no reasonable jury could find guilt beyond a reasonable doubt." White, 673 F.2d at 301.
§ 641 Embezzlement and/or stealing
In analyzing the relevant statute, the Tenth Circuit stated:
. . . Congress attempted to eliminate many of [the evidentiary] problems by codifying as one crime with wide parameters trespass to property of the government. In doing so, however, Congress nonetheless delineated separate means by which the offense could be committed. Id. Hence, the elements of embezzlement, stealing, and conversion were preserved in § 641 as alternate means of committing the statutory offense therein defined.United States v. Hill, 835 F.2d 759, 763 (10th Cir. 1987).
The court agrees with defendant's assertion that there is no way in which both stealing and embezzlement can be committed by the same person involving the same property at the same time, because one cannot wrongfully take property which he has come into possession of in a lawful manner. Cf Hill, 835 F.2d at 764 (same analysis regarding stealing and conversion). Nonetheless, as the court then and now understands it, the government's theory of the case was that the defendant arguably came into possession of some money lawfully, on certain dates, but thereafter embezzled it, and on other dates came into possession of other money illegally, and thus stole it. Thus the stealing and embezzlement occurred with different property and at different times. Because the evidence introduced by the parties could be viewed to support the government's theory above, the court found that the theories were not mutually exclusive and refused to dismiss the alternative embezzlement charge.
The government charged in Count V of the indictment that defendant "did knowingly and willfully embezzle and steal money that was property of the United States . . ." "A crime denounced in the statute disjunctively may be alleged in an indictment in the conjunctive, and thereafter proven in the disjunctive." United States v. Powell, 226 F.3d 1181, 1192 n. 4 (10th Cir. 2000). See Hill, 835 F.2d at 764 ("The government could have charged the § 641 offense in the conjunctive, see Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970) . . ."). This is precisely what the government chose to do here, by charging in Count V that defendant embezzled and stole government property, but proving that defendant embezzled or stole such property.
The court finds no error in the proceedings, given the fact that under the relevant statute, stealing and embezzlement are not separate and independent offenses, but only ways in which criminal liability for theft may be charged and prosecuted. The difference between a charge of stealing and embezzlement is a difference only in the government's theory of how the defendant committed the single offense of theft. The crime of theft, as defined in 18 U.S.C. § 641, constitutes one offense even though there may be alternate theories by which criminal liability may be charged and prosecuted.
But even assuming the court erred in permitting the embezzlement theory to reach the jury, no reason for acquittal of the charged offense has been shown, given defendant's failure to challenge the sufficiency of the evidence in support of the theory that defendant violated § 641 by stealing the government's money.
IT IS THEREFORE ORDERED that defendant's motion for a new trial (Dk. 79) is denied, and that defendant's post-trial motion for acquittal (Dk. 81) is also denied.