USA v. Hoover-Hankerson, et al

District of Columbia, dcd-1:2003-cr-00188-22061

MEMORANDUM OPINION/ORDER as to CELICIA HOOVER-HANKERSON, BENJAMIN HOOVER, granting in part and denying in part motions for judgment of acquittal; setting sentence for 3/3/06 at 11:30 a.m.; sentencing memoranda due 2/22/06; referring to Probation Office for supplemental presentence investigation reports. Signed by Judge Richard W. Roberts on 12/30/05.

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__,1- --., _.-~xI_-_~._~.~I_lI__I_I.~-~-~~-~---.-~ _-;____~ 6 UNITED STATES D,ISTRICT COURT FOR THE DISTRICT OF COLUMBIA 1 UNITED STATES OF ~ERIcA, 1 I v. 1 1 Criminal No. 03-188 (RWR) CELICIAi HOOVER-RANKERSON, 1 BENJAMIN HOOVER, 1) Defendants. I) MEMORANDUM OPINION AND ORDER A trial j~ury convicted defendants Celicia Hoover-Hankerson and Benjamin Hoover of conspiracy, two counts of theft from programp receiving federal funds and two counts of fraud~in the first degree. That same day, the defendants moved for arid were granted, a two-week extension of time under Federal Rule Of Criminak Procedure 29(c) (1) to renew their motions for judgment of acqu$ttal. Both defendants timely moved for judgment ~of acquittal, arguing that the government failed to produce ~ sufficient evidence to convict them. Both defendants aljo moved 'at the end of that two-week period for a new trial under ~Rule 33. Becausertbe court lacks jurisdiction to entertain defend$nts' new trial m+tions, those motions,will be denied. Because the. governmpnt produced sufficient evidence to sustain the verdicts rendere+ adainst both defendants on Counts 1, 2, 4, and 3, and against!Hoover-Hankerson on Count 3, defendants' motions foT judgment of acquittal will bk denied as to those counts. Because 6 - 2 - the government did not produce sufficient evidence to prove Count 3; against Hoover, judgment of acquittal will be granted on that count as to him. BACKGROUND The defendants were indicted for conspiracy to commit theft from a witness voucher program receiving federal funds in violat+ of 18 U.S.C. § 371 (2000) (Count 1); theft from a witnessi voucher program receiving federal funds and aiding and abetting ?I in violation of 18 U.S.C. §§ 666(a) (1) (A) and 2 (Count 2); theft from an investigator voucher program receiving~federal funds and aiding and abetting, in violation of 18 U.S.C. ~ s§ 666(a) (1) (A) and 2 (Count 3); and fraud in the first degree with respect to the witness vouchers and investigator vouchers, I in violation of D.C. Code ?i§ 22-3821(a), 22-3822(a)(l) (d98l)' (Counts 4 and 5 respectively). The following evidence, recited in the light most favorable to the verdict I see - United States v. Carnobel!,702 F.2d 262, 264 (D.C. Cir. 1983), was produced during ! the course of the seven-day~trial. I I. WI+NESS VOUCHERS Ark indigent criminal defendant entitled to appointed counsel pursuant to the Criminal Justice Act ('CIA") may have a defense 1 d:he indictment cites the 1981 edition of the D.C. Code. These statutes appear in the 2001 edition at D.C. Code §§ 22- 3221(a)/and 22-3222(a) (1). 6 - 3 - witness paid a witness fee by check drawn on public funds under Districit of Columbia Superior Court Rule of Criminal Procedure 1 1 3. Attorneys appointed by the court may obtain blank witness fee vouchers from the court's voucher office for use in the defensei of indigent criminal defendants. The voucher office will not relkase blank witness vouchers to non-attorneys. The attorneys must present identification, sign a log book for the vouchers issued, and safeguard the vouchers that they sign out. After January 28, 2002, the District of Columbia courts revised their policies to better implement Rule 113 by requiring:any attorney requesting a witness voucher to present supporting documentation, such as a subpoena, to certify that the w<tness was compelled to attend court proceedings. Attorneys report when vouchers are lost and stolen. The court will void a lost or stolen boucher and notify its internal audit groups. Toibe paid, the witness must certify on a witness voucher that her was compelled by subpoena to attend as a witness ion behalf of the defendant and'did attend the criminal case.~ The defense~lawyer,also must sign the voucher certifying the ~ witness,i s attendance. The witness fee is $40.00 for one'day's attendance. Hoover-Hankerson, a CJA attorney, signed out 2,087 witness I voucher+ under the District of Columbia Superior Court CJA 6 -4- voucher program between October 1, 1998 and February 7, 2001. The average number of such vouchers signed out by CJA attorneys during the same time period was 61. Hoover-Hankerson did not report that any vouchers signed out by her were lost or stolen. Superior Court voucher office employee Vicki Jeter came to know Hoover-Hankerson because of the frequency with which Hoover- Hankerson would appear to sign out vouchers. Jeter stated that Hoover-Bankerson signed out more vouchers than any of the other attorneys, at times twice in one week or every other day; Jeter sometimes saw Hoover or Troy Robinson, both defense investigators, accompanying Hoover-Hankerson when she signed out vouchers. Employee Beatrice Pearson saw Hoover-Hankerson accompanied by Hoover on some occasions when Hoover-Hankerson signed out vouchers. Robinson testified that he and Hoover had passed out false witness vouchers from 1998 to 2002. The jury heard from several individuals who cashed witness vouchers that had been issued in blank by the voucher office to Hoover-Bankerson and purportedly signed by Hoover-Hankerson before being cashed. Antonio Brown had received witness, ~vouchers on a number of occasions from Robinson, a childhood acquaintance. At Robinson's direction, Brown would sign and take the vouchers. to the Superror Court to cash them. He would receive a $40.00 check for a voucher and after cashing it, keep $15.00 (or half) 6 - 5 - and turn over the remainder to Robinson on 17th Street. Brown would see Hoover with Robinson when Robinson handed Brown vouchers and when Brown turned over some of the proceeds. Brown heard Hoover referred to as "Ben." Brown had never been, subpoenaed for or appeared as a witness in the cases which were the sub;jects of the vouchers. The signature lines for the certifying attorneys on his vouchers contained what appeared to him to be the same signature. He had never met Hoover-Hankerson, and he did not know the source of Robinson's vouchers. ~ Makin Brown had known Robinson for decades, but did not know Hoover-Hankerson. Robinson or Hoover would give Marvin Brown witness vouchers at either 17th and Euclid Streets'or near the Superior Court buildings. Marvin Brown had never been subpoenaed for a case and he never appeared in a case. Be had seen Robinson and Hoover together on multiple occasions when he would get vouchers. He had also seen Hoover pass out vouchers to other individuals in the 17th and Euclid Streets area. Marvin Brown would cash the vouchers, keep $15.00 or $20.00 pervoucher, and give the rest to whoever had given him the voucher. iHe gave Hoover hroceeds from one voucher in front of a liquor store on 6th Street.' ' IMarvin Brown admitted on cross-examination that he had stated previously that he had never met Hoover. Marvin Brown explained that he drew a distinction between meeting someone and "seeing7 him. 6 - 6 - Mi~chael Taylor also cashed witness vouchers for cases for which he was never subpoenaed and for which he never appeared. His first involvement with witness vouchers occurred when Robinson approached him to meet at 601 Indiana Avenue toNget the vouchers. There were eight to ten individuals there, including Hoover.! The entire group walked over to the Superior Court to cash thk vouchers and took the checks to a local liquor store. Taylor kept $15.00 per voucher and gave the rest to Robinson. Hoover &as there when Taylor returned some of the voucher proceeds to Robinson. Hoover accompanied Taylor to the liquor store on more than one occasion to cash the checks. Taylor saw others give Hoover voucher proceeds four to five times. Tailor saw Hoover and Robinson together at 601 Indiana Avenue eight to ten times when he went there to obtain vouchers. He saw Roover-Hankerson on four to five separate occasions when Robinson or Hoover would go into a room with Hoover-Hankerson and return to Taylor with vouchers. Taylor never had direct interac ion with Hoover-Hankerson, and Robinson and Hoover never t spoke directly to Hoover-Hankerson in his presence. However, Taylor noticed that Hoover, Robinson, and Hoover-Hanker&n would engage in secretive behavior and close the door each time,they went into the office. _,_.xI._-__;_____I____ _,.. ~~~~*~~~~~--i-----------;l;--m-~ Eli --,p 6 - 7 - The government introduced paid witness vouchers that purported to have the name Hoover-Hankerson signed on the signature line for the attorney. Handwriting expert Brittany King opined that 471 of 864 attorney signatures on 427 different vouchers were written by the same individual. King concluded that similarities in an additional 382 of the signatures suggested that those signatures were written by the same individual. Her examination was inconclusive as to eleven of the 864 attorney signatures. Hoover was employed, as an investigator in Washington, D.C. by his wholly owned business, Hoover Investigations. In addition, he was variously employed at three other locations in,Maryland: E and G Classics, Victor Cullen Academy, and St. Bernardine Catholic School. There were 246 witness vouchers signed out from the voucher office with the name Hoover-Bankerson appearing in the log book attorney signature column that;were ultimately processed for payment from October 5, 1998 to ~ December 11, 2001 certifying that Hoover had appeared as ~a witness:in a case. Hoover did not submit any witness vouchers after the Superior Court revised its policies on January;28, 2 0 0 2 requiring, an attorney seeking to obtain a blank witness voucherl~to first produce proof that a witness had in fact been compelled to testify. Among the appearance dates and times 6 - 8 - listed on those vouchers were at least eight dates and times on which Hoover's time and attendance log at one of his Maryland places of employment reflected Hoover's presence there. Hoover-Hankerson's husband, Ernest Hankerson, was employed in HarrIsburg, Pennsylvania. He submitted 328 witness vouchers with hei name signed on them. Two hundred ninety-four of those vouchers claimed appearances at times when his time and ~ attendape records at his Pennsylvania job reflected his:presence there. II. INVESTIGATOR VOUCHERS In+estigators assisting CJA attorneys in CJA qualified cases 1 may be paid using investigator vouchers. On an investigator I voucher1 the attorney~has to certify that the work completed by I an investigator was completed satisfactorily. The government introduced evidence of numerous investigator vouchers submitted by Hoover's investigation corporation and by Ernest Hankerson, I Hoover-yankerson's husband, bearing what purported to be ~ signatures of 'Hoover-Hankerson. (Gov't Ex. 9e-.l, 9c-2.) Investigator Diane Eickman testified that 32 of the investigator I vouchers claimed that Hankerson had conducted investigatory work during iertain times that his attendance log for employment in I Harrisburg, Pennsylvania reflected him at work there. Similarly, Eickmanitestified that eleven of Hoover's investigator vouchers I I 6 - 9 - claimed investigative work at times when his time and attendance records, at Victor Cullen Academy and St. Bernardine reflected Hoover's presence in Maryland. (See Gov't Ex. 9f.) Hoover submitted those eleven vouchers between February 27, 2002 and February 27, 2003 claiming a total of $3,962.37. Hankerson submitted sixteen such vouchers between February 27, 200; and February 27, 2002 claiming a total of $2,404.40, and submitted twelve such vouchers between February 27, 2002 and February 27, 2003 claiming a total of $4,325.89. III. MO+IONS Just after the jury delivered its verdicts, counsel;for defendant Hoover requested an extension of at least fourteen days to files a motion for judgment of acquittal notwithstanding the jury verdict. Counsel specified that he based his request on Rule ~29~. Counsel for Hoover-Hankerson joined in that mo?ion without, further comment. The government did not oppose. ~ The court engaged defendant Hoover's counsel in a discussion ~about the court's discretion to grant an extension of time to file a motion for judgment of acquittal: Counsel repeatedly identified Rule 29ias the authority to grant an extension of time. !Before the court agreed to the motion for an extension of time, ~counsel was questioned whether any other seven-day limit in the rules 1 governe+ the discretion to award an extension. Counsel replied 6 - 10 - that it was indeed Rule 29(c)(l). The court stated that it would extend the "seven-day period to fourteen days [in] which to allow both defendants to file a post-verdict Rule 29 motion." (Tr. of T/8/04, afternoon session, at 36.) Hoover filed on the fourteenth day a motion for judgment of acquittal and/or 'for a new trial. Hoover-Hankerson filed a motion for judgment of acquittal on the fourteenth day and submitted a suppleme: tal motion for a new trial on the fifteenth day. DISCUSSION I. MOPION FOR JUDGMENT OF ACQUITTAL Feberal Rule of Criminal Procedure 29(c) (1) states hat n [al defendant may move for a judgment of acquittal, or renew such a motion,!within 7 days after a guilty verdict or after thl court discharges the jury; whichever is later, or within any 0' her time the court sets during the 7-day period." A court lacks uthority to entertain a motion for judgment of acquittal if it is untimely filed. ISee Carlisle v. United States, 517 U.S. 416, 421 (1996). If the motion is timely made, '[tlhere is only one groun for a motion for judgment of acquittal. This is that the evidl nce is insufficient to sustain a conviction of one or more of tl e I offense!'i charged in the indictment or information." 2A I harles Alan Wright, Federal Practice & Procedure: Criminal § 461 (3d ed. I 2000) (footnote and internal quotations omitted). -~_~"_^.._:._i.,~,l,d-i,,~ii'-.~~~~--;-~~~-- - I_-_IIII=~ -J_I_--------7-~~~ Case 1:03-cr-00188-RWR-DAR Document 126 Filed 12/30/05 Page 11 I of 36 - 11 - In,determining the,sufficiency of the evidence to sustain a conviction, 'after viewing the evidence in the light mos$ favorable to the prosecution, [a court must determine wh'therl e any ratIona trier of fact could have found the essentia elements of the crime beyond a reasonable doubt." Jacks n v. I Virqinia, 443 U.S. 307, 319 (1979). Because a court mus recogni-1 e the "right of the jury to determine credibilit, weigh the evike, and draw justifiable inferences of fact," nited States b. Edmonds, 765 F. Supp. 1112, 1116 (D.D.C. 1991) (quoting I United States v. Reese, 561 F.2d 894, 898 (D.C. Cir. 197)), and I 'presume that the jury has properly carried out its func ions of I. J evaluatpng the credibility of witnesses," Campbell, 702 .2d at 1 264, a jury determination will stand unless 'no reasonab e juror could a1 cept the evidence as sufficient to support the c nclusion of the defendant's guilt beyond a reasonable doubt." Id. I " [W]he' a reasonable mind might fairly have a reasonabl doubt p of guil or might fairly have none, the decision is for he jury 1: to make.'" Edmonds, 765 F. Supp. at 1116 (quoting Unite v. Herron, 567 F.2d 510, 514 (D.C. Cir. 1977)). Moieovee is no requirement of any direct evidence of guilt if the 4Ne exists I sufficient circumstantial evidence to support the verdic 1 [,I" id. United States v. Poston, 902 F.2d 90, 94 n.4 (D.C. Cir. though a jury 'cannot be permitted to speculate qf the 6 - 12 - evidence" is so scant and insubstantial that a guilty verdict would b unreasonable. 2A Charles Alan Wright, Federal Practice f & Procehure: Criminal § 467. A.~ Conspiracv The defendants were charged with and convicted of conspiracy to commkt theft from the witness voucher program. Hoove - I Hankerson argues that there is insufficient evidence to show that she 'ac ually reached an agreement with any alleged t coconsp/rator, II and argues that the government's own witnesses "specif'cally testified that they had no agreement with. . . r Hoover-Hankerson. . . Iand had not1 provided any procee s from I,, the witness'rsl vouchers to [her]." (Hoover-Hankerson's Mot. to Set Aside the Conviction and P. & A. in Supp. ("CHH Mot.") at 9.) Hoover likewise argues that the government failed to est 1blish that th I re "was an agreement between [him] and any other individ,al [ charged in the indictment to commit theft" or that he knowingly and intentionally joined in any agreement. (Hcover's Mot. for J. of Acquittal &/or New Tr. ('BH Mot.") at 2.) Hoover argues c hat the evidence showed only that he was in the neighbo 1 hood where the witness fee vouchers were handed ut by Robinsoh. (Ia. at Z-3.) 'InI order to convict a defendant of conspiracy under1 18 U.S.C. 371, a jury must find that the defendant entered into an -n--------ri p------"--- 6 - 13 - agreement with at least one other person to commit a speaific offenses. . . as well as that the defendant knowingly participated in the conspiracy with the intent to commit It:he offensei and that at least one overt act was committed in furtherance of the conspiracy." United States v. Gatlinc 96 F.3d 15h1, 1518 (D.C. Cir. 1996). 'In order to prove th? .t an agreement existed, the government need only show that thr / conspirators agreed on the essential nature of the plan, nsot that they agreed on the details of their criminal scheme. It i s well I established that an agreement sufficient to support a COI..s:piracy conviction can be inferred from circumstantial evidence." Id. (internal quotations and citations omitted); see also unj ea States ?. Pemberton, 121 F.3d 1157, 1166 (8th Cir. 1997). Frim the evidence offered at trial, a reasonable jur!Y could have fo,nd: that an agreement existed between Hoover and E 101over- Hankersin and others to commit theft from the witness VOI. her program) It is of no moment that there may have been, as the defendants contend, little direct evidence of an agreemer or the defend its' knowing joinder in that agreement, for n Lilt s T unusualito have direct evidence of the conspiracy. ! Circumstantial evidence, including inferences from a devs11,opment I and a cfllection of circumstances, suffices to prove ! participation in a conspiracy." Edmonds, 765 F. Supp. ate 1116 I I 6 - 14 - (internal quotations omitted). Here, the evidence established that Hoover-Hankerson signed out 2,047 witness vouchers over a period of time when the average number of vouchers signe' out by 4 other WA attorneys was 61, that her signature appeared dn fraudulent vouchers submitted by Taylor, Antonio Brown a'd Marvin 4 Brown, and that Taylor, Antonio Brown and Marvin Brown each received their vouchers from either Robinson or Hoover. Taylor testified that he saw Hoover-Hankerson, Hoover and Robinson togethel shortly before he received a number of vouchers, and that they behaved secretively. A reasonable juror could have found that Hoover and Hoover- Hankerson agreed to commit theft knowingly and intention lly from numerous factors: the secretive interaction among Hoove Hoover and Robinson immediately preceding Hankersp receiptIof witness vouchers; Robinson and Hoover's accep ante of proceeds from fraudulent vouchers; Hoover-Hankerson's on the vouchers"; and the fact that only attorneys could son argues that the lack of handwriting expert as to each of evidence insufficient to Hankers& committed or agreed to commit witness voucher fraud.,'A reasonable jury could easily reject that the plethora of si'natures the handwriting Hoover-Hankerson's 7ifrom among just the Moreover, the jurors were free to decide for by look'&g at the vouchers admitted in 'r whether the signatures are consistent and uniform. United States v. Oskowitz, 294 F. Supp. 2d 379, 2002) (noting that,jurors can make a conclusion as to aut~horship ! I _'_i_;___-----------.~-."---..-"--------"~~~=~ Ix--, ~~_ ~~.~-., I~, _i;- Case 1:03-cr-00188-RWR-DAR Document 126 Filed 12/30/05 Page 15I of 36 I I - 15 - the voubhers from the Superior Court and that Hoover-Han$erson had not; reported any of the 2,047 vouchers missing or stc Although Antonio Brown, Marvin Brown and Taylor each test fied that her had not made any agreement or interacted with Hoc er-,Hankerspn directly, a reasonable juror could infer from t e evident f that Hoover-Hankerson signed out vouchers and pz sed them on~~to Hoover and others to distribute to individual5 in the ! 17th an& Euclid Streets neighborhood to cash. In any cas, in a criminal conspiracy, "the government need only show that he conspir+tors agreed on the essential nature of the plan, ot that they agleed on the details of their criminal scheme[,l" c knew the ideitity of all the co-conspirators. Gatlinq, 96 F.: at 1518 (i/iternal quotations and citations omitted); see als United States 1. Guerra-Garcia, 336 F.3d 19, 23 (1st Cir. 2003) "A defenda t need not have knowledge of all the details of t e 1 conspi+cy, the participants in the conspiracy, or their cts."). Ins addition, the very fact that Hoover himself submj ted witness~vouchers on at least eight different occasions wk ch conflic ed with times when he had signed in at work outsi e of 1 the Dis$rict of Columbia could support the inference that Hoover knowingiy agreed to commit theft. While Hoover-Hankersol may !,,based of their own experiences with the aid of an expert !ho testiflTs as to how similarity is judged in handwriting I,mples) . 6 - 16 -,claim that when she obtained the witness vouchers, she did not know ore agree that witnesses would fraudulently fill out the vouchers, it was entirely reasonable for a juror to cone ude that Hoover-gankerson knowingly distributed those vouchers to individ'als who would pass them on to others who were no F compel1 d to appear in court. See, e.o., Pemberton, 121 F.3d at 1167 (ItIn particular, [the defendant's] signature on the .auditor, s representation letter, which contained the fal 3 statement reasonably could lead the jury to the in arence I ... that [the defendant] intended to mislead the auditor and the Interiok Department. [The defendant1 suggests that he d 1 not,know that the statement was false, but the jury quite re, sonably could hbve determined that [he intended to commit fraud] ') It is not the task of the court to choose among competing i: Eerences that can1~ be drawn from evidence. "The traditional defers we accordeb to a jury's verdict is especially important whe: reviewi,g Al a conviction for conspiracy. . . because a co: apiracy by its #cry nature is a secretive operation, and it is a rare case wh re all aspects of a conspiracy can be laid bare 1 court 1 with th! precision of a surgeon's scalpel." United Stat1 3 Jackson 1 335 F.3d 170, 180 (2d Cir. 2003) (internal quot, zions omitted). The evidence here is not so scant or meager s:h that 6 - 17 - no reasbnabie juror could'have found the defendants guilty of knowing$y agreeing to commit theft. B.i Theft and fraud: witness vouchers The defendants were charged in Count 2 with theft c,ncerning 4 witness! vouchers and aiding and abetting, in violation 0, 18 U.S.C. b§ 666(a) (1) (A) and 2, and in Count 4 with fraud n the I first degree, in violation of D.C. Code §§ 22-3821(a), 2 - I I 3822 (a)l(l) (1981). Conviction of theft requires proof that (1) thak defendants were "agentIs of an organization, or of a State 1' rl local. . . government, or any agency thereof'; i (2) tha defendants embezzled, stole, obtained by fraud, F,knowing~ y converted, or intentionally misapplied property that is 1 "valued1 at $5,000 or more" from "such organization, government, I or agency"; and (3) that such "organization, government,,or agency receives, in any one year period, [federal assists.nce] in excess of $lO,OOO.n 18 U.S.C. § 666(a) (1) (A); see also United States II. Cornier-Ortiz, 361 F.3d 29, 33 (1st Cir. 2004) (setting T- forth epements of theft). First degree fraud is established upon ! proof that the defendants 'engageEd in a scheme or syst mic I I conduct with intent to defraud or to obtain pr eperty of course of another/by means of a false or fraudulent pretense, Y represe'tation, or promise and thereby obtainred property of another,n or cause[dl another to lose property." D.C. code s 22- 6 I ! ~, - 18 - 3821(a)~ (1981); Bell v. United States, 790 A.2d 523, 529~:,(D.C. .2002). ~ n In order to aid and abet the commission of an offense, a defendant must 'associate himself< with it, must it as in something that he wishes to bring by his kction to make it succeed." Campbell, 702 F.2d a I (quoting Nve & Nissen v. United States, 336 (1949)) I. Ho ver argues that the government b at leas $5,000.00 worth of witness voucher fees,fraud, nd that there is insufficient evidence to show t r P partici ated in the scheme to defraud knowingly,:with in ent to defraud the witness voucher program. t there was no evidence that he received any o of the funds and that it would be "illogical in a scheme that only benefits people (BH Mot. at 5.) could have found that defendant oover or caused the Superior Court to lose by fraud o B through false witness vouchers. The governmen showed that Hoover submitted 246 witness vouche or the same reason that defendant Hoover's fails on the conspiracy count, defendant's assertion government failed to prove that he knowingly ated in a scheme to defraud the Superior Court wjth false on Count 4 fails as well. 6 I - 19 - all,of lthe vouchers were false, Hoover would have received wi7't .$9,840.100, well over the jurisdictional amount. A jury Xlld have inlferred from Hoover's failure to submit a single:ness voucher1 after January 28, 2002 -- when the Superior Cou ri changed I its propedures to require a copy of a subpoena for each itness voucher it issued -- that each of the 246 witness vouch,: was,fraudul, I, nt.5 Coupled with Robinson's testimony that he a d I",Hoover id pass out false witness vouchers, and with ev,i#:nce from Ta I lor that Hoover, on occasion, accompanied Taylo:rlt:o the liquor rtore for a voucher handed to him by Robinson, tlh&: Taylor saw HOO er distributing vouchers in the 17th and Euclid 4t:reets:neighbo~'hood, 1 and that Hoover and Robinson often were SI together as Robinson passed out vouchers, there is suff 1.ient from which a reasonable juror could have found.%1nat by fraud, or caused the Superior Court td lose by jury was not allowed to he:3r the to submit a ~single witness vo u d,Iler changed its procedures, Hoover that was admitted. Governme exhibit the policy for signing out witness luchers was admitted in evidence over defen It June 28, 2004. To the extent tha 3oover not been admitted in idence, have been insufficient to ?port a that argument is not one proper for a Rule See United States v. Diaz, 300 F.3d 66, 77- (1st Under Rule 29, a court reviewing the suffi of evidence submitted t i jury, admitted.'" a (quoting United States v. Gonzalez-Sanchez, 825 F.2d 572, 588 (1 Cir. 198711.1 6) I - 20 - ! fraud, over $5,000 in witness voucher fees. See United States v. I Naiman,~ 211 F.3d 40, 47-48 (2d Cir. 2000) (rejecting argume+ that the government failed to prove that he had,misappl~ied more than $5,000 despite only circumstantial showing1 that the federal program did not receive the funds found to haves been misapplied by the defendant). Hobver-Hankerson argues that there is insufficient evidence I to establish that she aided and abetted in the theft involving witness vouchers because the government failed to prove that she intended for anyone to succeed in committing theft.6 There is .ample e I idence for a reasonable juror to conclude that Hoover- Hankers'n had the intent to facilitate the commission of theft:: by, at he least, Hoover and Robinson; that she knew tha. the t witness vouchers would be used to commit fraud; and that Hoover .' and RobInson distributed the vouchers,in the 17th and Euollid Streets neighborhood to receive some of the proceeds themselves A rational trier of fact could conclude that, by signing,out I.,2,087 wptness vouchers, well above the average number that CJA attorne's 1 obtained during the relevant time period, and distrib 1 ting them to investigators who had been seen passing them oover-Hankerson does not raise in her renewed motion 6 .i insuffr iency arguments regarding Count 4, fraud in the f irst degree dy'ith respect to witness vouchers. reasonsthat there is sufficient evidence to convict her conspircya count, there is sufficient evidence to fraud conviction regarding witness vouchers. 6 - 21 - out'to pnvestigators Who would not be witnesses, Hoover-kankerson active~lb assisted others in the commission of theft. Furthermore, Hoover-Hankerson's husband submitted 294 witness vouchers with her name signed on them which conflicted w 1th his time an' attendance records at his Pennsylvania job. Ta lor also;? testified that he saw Hoover-Hankerson, Hoover and Robin on furtivehy meeting immediately before he was handed witne s I vouchers to commit fraud. A juror could reasonably infe 1 from 'i the evidence that Hoover-Hankerson actively facilitated the commiss+on of theft by signing out vouchers which she knew would,be cashbd fraudulently. See, e.q., Poston, 902 F.2d at 55 (findin! circumstantial evidence sufficient to convict detfendant 7 of aidi g and abetting another's possession of drugs). f c. Theft and fraud: investisator vouchers Hoiver-Hankerson argues that there is little evidence to p show that she was part of a joint effort to commit theft with I investigator vouchers, and that the fraud count based on I investimator vouchers must also fail for failure to prove knowing B and willful participation in such fraud. Specifically, she 1:argues that there was no direct evidence that she was aware that / Hoover +r Hankerson had not performed the investigator services. (CHH Mol. at 12-13.) There is sufficient evidence, infer that Hoover-Hankerson knew that the;___;_;_ ..-. ^.~ -_l__.~).~-~.-~~^_^__;-l~l~_ .-~I~ +--_,-~ .----- -f 6 - 22 - submitted by her husband and Hoover were false. Governmt nt exhibits Yc-2 and Ye-2 detail conflicts in the time clair ed on Hoover and Hankerson's investigator voucher submissions. Given those time conflicts, the volume of vouchers, certificat: on18 bearingi Hoover-Hankerson's apparent signatures that the t uspect investigator work was completed, and the extensive time 1 eriod over whkch the suspect vouchers were submitted, a ration: 1 juror could find that Hoover-Hankerson aided and abetted Hanker son and Hoover in their false submissions. Similarly, this evidc ace is sufficient to sustain a finding of knowing participation zy her I in investigator voucher fraud. I Likewise, there is sufficient evidence to show that defendant Hoover committed fraud in the first degree wit1 respect ~. to the pnvestigator vouchers. Voucher lAXOOO6803 (Gov't 3X. Ye- 2) alone satisfies the minimum $250.00 amount required tc sustain the contiction, and the jury could have found that Hoover had intended to commit fraud by comparing the hours claimed c 1 the voucherito his time and attendance logs at his place of 7 qlthough Hoover argues that the vouchers were subn itted on behalf of Hoover Investigations and that an investigator working for Hoo&er could have turned in those vouchers, the gove: nment need noh counter every plausible innocent explanation. 1 ee United States v. Patterson, 644 F.2d 890, 893 (1st Cir.: 981). ._.~.;-,_ .~-.--~----,~-~--.-"-~,~-~~-~~~~---~ ---------Y- 6 - 23 -,Hoover's theft conviction poses a more difficult question. *I Hoover challenges whether the government proved the reqursite 1 jurisdiktional amount of loss for the theft charge relat e'd to I investigator vouchers. Given that the total of the vouc,ers h submitt d by Hoover amounted to $3,962.37, he argues that the 11 I govern" nt failed to prove the $5,000.00 of loss requirec. under the staI 1ute. The government argues that the evidence established t -1 that $1,408.42 worth of vouchers were submitted by Hoover and his 'ac: (omplice and coconspirator Ernest Hankerson." (Gov t Opp'n aL 8.) Because the government did not charge the defenda L: Its with any conspiracy to commit investigator voc.cher fraud, I: r allege at trial that such a conspiracy existed, it cannot k:stablish that the jury found such an agreement or use it to attr:iljute Hankerson's fraudulent conduct to Hoover. Al.'Inough a jurisdictional amount can be reached thr conduct: tof aiders and abettors, the evidence here did no establi 1 1n that Hoover aided and abetted a principal or accompl.ic B >e who, with Hoover, converted over $S,OOO.OO prograrrI:receiving federal funds. The government provide evident to show that Hoover aided and abetted -- that active1: facilitated -- Hankerson's investigator voucher The govI rnment cannot use Hoover's membership in a commit I:itness voucher fraud to prove that he aided and a,betted 6 - 24 -,~Hanke,rso'n in any purported separate and distinct investigator voucher, scheme. See United States v. Wilev, 846 F.2d 150, 155 (2d Cir~. 1988). Nor was there evidence that Hoover and Hankerson helped each other in committing investigator voucher fraud. No evidence was introduced that Hoover and Hankerson performed investigative work together, met together with Hoover-Hankerson just before or after their investigator vouchers were submitted, submitted those vouchers together, commingled or shared the proceed1 of those vouchers, discussed with each other the I .investigator voucher fraud scheme, or otherwise knew that each ! other was involved in such a scheme. Drawing all reasonable inferenbes in the government's favor from the evidence produced at trial, there would be insufficient evidence to convicy Hoover of aiding and abetting Hankerson' as a principal or an accomplice such that the jurisdictional amount could be reached. ~ Conceivably, Hoover could be culpable if Hoover-Hankerson had oneloverarching scheme to distribute investigator voqchers to both Hoover and Hankerson to defraud the Superior Court, was opposed~to separate schemes involving Hoover and Hankerson independently; if Hoover knew that the investigator voucher a Although one who aids and abets need not know the details of the offense or even the identity of the principal, United States k. Staten, 581 F.2d 878, 887 (D.C. Cir. 19781, there was no evidence to show that Hoover's activities actively facilitated those of Hankerson or furthered Hankerson's purposes. ! .~____ _ .-.."-m------>+v.. -_--ie___.-~-~ -,-..- "A_r__l__l-"--..d .' '~,F------ 6 I - 25 - scheme'was'broader than thee eleven vouchers that he had ~ ~submitted; and if his submission of false investigator vouchers activelk facilitated Hoover-Hankerson's overarching sche e. In 1 that circumstance, Hoover could be responsible not only for the loss amounts attributable to the investigator vouchers s bmitted I by him,i but also for the loss amounts attributable to th .~ investigator vouchers submitted by Hankerson. See Unit] States I v. CruziMercado, 360 F.3d 30, 35 (1st Cir. 2004) (affirm'ng I sentencing enhancement for $4.3 million in loss where de endant was onlk directly responsible for $600,000 on the basis Ihat defendant was accountable for the full amount of loss of his ~,coconspkrator) . Idcf United States v. Osebv, 148 F.3d 101 1, 27 (requiring remand where the district court failed to .i specific findings to attribute the amount of loss from coconsp'rators to the defendant for offense of conspirac t defraud~the United States). And; in that,be thatithe amounts converted by Hankerson and Hoover aggregated to reach the jurisdictional threshold. cites U 1,ited States v. Sanderson, in supp1rt of its argument that amounts stolen through i conversions here were in the course of carrying out a i zcheme ind may be aggregated for the purposes of I under §,666(a) (1) (A). While Sanderson notes that it is ~,-~~~~--.--~-.-, --w-l--w- _.- ~~~. . -L- Case 1:03-cr-00188-RWR-DAR Document 126 Filed 12/30/05 Page 26 I of 36 - 26 -,a@roprbate to aggregate amounts converted by a single defendant .in the course of his own scheme, Sanderson does not address the proprie y of aggregating amounts taken by separate indiv duals I: I on the a c t i n g 1 ndependently to reach the jurisdictional threshold substan ive charge, and the government cites to no case hich F,finds conviction under those circumstances appropriate. I the government's evidence was insufficient1 to MoFeoverT prove that Hoover-Hankerson had one overarching scheme dependent upon bo h Hoover and Hankerson (and not separate schemes with each in ependently), or that Hoover knew that any invest'gator, 1 fraud s heme involved more than his eleven fraudulent vo chers. See, e.g., ' United States v. Samnol, 636 F.2d 621, 676 (D C. Cir. 1980) (permitting aiding and abetting liability even if hat defendant did "not perform the substantive offense, [did] not know it b details, and [was] not even. . . present, so 1 Ing as the off nse committed by the principal was in furtheranc of the common 1 esign") (citations omitted); cf. Wilev, 846 F.2d:at 155 (revers'ng 1 conviction of defendant on aiding and abettin i theory because,there was insufficient evidence to show that he 7 ided and abetted's large wire fraud scheme). Unlike the evidence support#'ng I the conviction for conspiring to commit witne s:voucherfraud, there is no evidence here from which the 1 urors could infer that Hoover thought Hoover-Hankerson engaged,in a 1 "~~..-.~----^.~~~..\--r" ..--___~~-~I-L"-.--... L, _~ _____l;-~~, i_=__I_~~ 6 ! - 27 -,~bro'ad& investigator voucher fraud scheme. While Taylor testifikd about Hoover-Hankerson, Hoover and Robinson meeting secretly before Taylor received his witness vowchers, an while d the vol me and number of individuals submitting witness ouchers r bearing~~Hoover-Hankerson's signature is compelling, thereI is no equival nt evidence involving investigator vouchers.' Se L Samool, 636 F.2d at 676 (noting that an accomplice may -T- b liable. for actk which are in furtherance of a common plan to co 1mit a felony /or are the natural and probable consequences of a ] ts done in perp trating the felony). It is equally plausible that Hoover- ankerson aided and abetted Hoover and Hankerson I ~indepen ently, or that Hoover-Hankerson ran two separate Q,lnvestigator voucher schemes to defraud the Superior Court. I ' In United States v. Webb, a jury rendered a guilt verdict againsta defendant on a § 666(a) (1) (A) charge where the jurisdi'tional amount was met only after aggregating the value of multipl 1 conversions. 691 F. Supp. 1164, 1168 (N.D. Ill. 1988). Because the court there had instructed the jury that it 1 convict if it "found that 'property valued at $5,000 or j12" was 'embezzi;Led, stole[nl or otherwise converted to the use 0' persons other than the rightful owners' -- without finding that the thefts ere part of a single plan[,l" the court noted th t a jury could h ve convicted without finding that a "single plan' 1 d its verdict. Id. In that case, though the "e?ror support " governm nt's additional charge of conspiracy to defraud r1qhe ordinar'ly would require reversal of the guilty verdict the United E tates and the jury's finding of guilt on that co spiracy charge ermitted the court to state that the jurors 'net ?ssarily found" hat the thefts were part of a single scheme and uphold the cone iction. Id. at 1168-69. Here, there was no charge and .I convict#'on of conspiracy to commit theft from the investigator voucher pro,gram. y I 6 - 28 - Hoover submitted investigator vouchers on four dates whi ch overlap; only minimally with the more extended period of ly tI" submisskons by Hankerson. That limited coincidence hard suffices to permit a reasonable inference that Hoover kn of and activelb facilitated a broader investigator voucher frau' scheme reaching beyond him and Hoover-Hankerson to Hankerson su h that Hankers n's thefts should be attributable to Hoover. Th' 1 evidence against Hoover on Count 3 was insufficient to pjr" nit a rationai trier to find beyond a reasonable doubt that Ho,ovz!r was i. responspble I for converting over $5,000 in investigator VI:her ilc funds. 1 See United States v. Ortiz, 445 F.2d 1100, 1103 l()th I Cir. 19'1) (noting that a conviction cannot be based on,4 vi.dence 9 P that isl:consistent with both innocence and guilt). II. MOTION FOR A NEW TRIAL Federal Rule of Criminal Procedure 33 provides that motion for a n'w trial premised on grounds other than newly disl rered evident,r must be made 'within 7 days after the verdict o: iinding $ of guil;y, or within such further time as the court may: t during that 7-day period." 'If the defendant fails to m; ! a I motion for a new trial within seven days and the court f; .s to 'fix' a new due date for the motion during that period, i ! court loses ].I risdiction and cannot grant such a motion at a 1; !r time." 1United States v. Marquez, 291 F.3d 23, 25 (D.C. ($1:. 6 29 - - ZOOZ). "Rul,e 33 means'~what it says" and no court may ense'rtain a motion for a new trial outside of the time limits set fol:h in Rule 33. Id. Hege, defense counsel timely preserved their right t t move within Feven days of guilty verdicts for judgments of act littal by spec fically invoking Rule 29. However, neither couns:l asked i for an extension of time to move for a new trial or mentj lned / Rule 331. Hoover's counsel unequivocally announced that f .S motion ias made under the authority of Rule 29(c) (1). DE ipite being alRed about other potentially relevant provisions c ~ the -Federal Rules of Criminal Procedure that contained a seve:-day time li+it, counsel did not invoke Rule 33 or request an extensisn to file a motion for a new trial. b Mojreover, the circumstances here do not fall within he narrow funique circumstances" exception to the jurisdicti Nnal / time liyits. A defendant may move for a new trial outsid o f !Rule 331s strict time limits 'only when the cause of the ailure I,to meetithe deadline was 'an erroneous ruling or assuranc by the DistricL Court itself.'" Marouez, 291 F.3d at 26 (quotir I Carlislk, 517 U.S. at 428). The parties never stated tha the I requested applied to any motion but one for jud extensign 'ment of acquit&. The court granted defendants an extension of he I:~,seven-dfy period to a fourteen-day period in which both 6 - 30 -,defenda~nts could file a post-verdict Rule 29 motion, andi~gave no indication that the ruling applied to any Rule 33 motion as well. Accordingly, defendants' motions for new trials must be denied because~the court lacks jurisdiction to entertain them. Ev'n if the motions had been timely, defendants' gr unds for r a new trial appear meritless. Rule 33 provides that the trial court m'y, upon motion by the defendant "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. j R. Crim P. 33(a)., see United States v. Williams, 233 F.3d 592, . 593 (D.~ . Cir. 2000). A Rule 33 motion charging ineffective,assista'ce 1 of counsel must set forth evidence upon which the element of a constitutionally deficient performance migt.t properlyI be found. United States v. Pinknev, 543 F.2d 908, 915 I (D.C. Ctr. 1976). Hoover argues that he deserves a new trial,because he was denied the effective assistance of counsel when his mot&on to continue the trial was denied. Hoover claims the. denial prevented him from obtaining witnesses that would 1~ corroborate the fact that other investigators worked for Hoover Investigations, Inc. However, in his motion for a contiruance, Cf. Poston, 6 - 31 - regarding the utility of prospective testimony do not provide a sufficient basis to compel a continuance [where] there is no indication that Ethel testimony would have been material and favorable. . . ."); Tabor v. United States, 175 F.2d 55, 553 I (4th Cir. 1949) (denying motion for new trial based on absence of witness's where the only proffered testimony would not h a ve e,affectei& result). Similarly, Hoover-Hankerson argues that she was denied the aid of a handwriting expert and a financial expert by the ' enial of her motion to continue the trial. In her motion P to contanue, Hoover-Hankerson failed to articulate how specifi'ally the purported missing witnesses would be helpful and fails t r do so here as well. Moreover, neither defendant offers 0 any explanation for why he or she could not secure these additio hal witnesses in the twelve months between the arraignents and trial. P Hoover also argues that his right to a fair trial was I comprom+sed when the court declined his request to poll second i. time a Iuror who paused before acknowledging that he agr ed with the vericts A announced by the foreperson. The court fou d that I there w,s only a short delay before the juror answered, that his P answer that the verdict was his verdict, albeit delayed, was,nevertheless "unequivocal," and that there was no need "to 6 - 32 - espec~ially call him out to'voir dire him."'O (Tr. of 7/8/04, afternoon session, at 10-11); see United States v. O'Brv a, 775 F.2d 15i8, 1535-36 (11th Cir. 1985) (finding no abuse of discretion in failing to rep011 jurors when there was no expressIon of uncertainty). Hoover-Hankerson moves for a new trial on several a' .ditional grounds' One is insufficiency of the evidence, specific,llY, ! that the government "did not show that [she] actually re,ched an agreement with any alleged coconspirator." (CHH Mot. at 9.) A new tri 1 may be granted because of insufficiency of evi .ence I only in "exceptional cases in which the evidence weighs: .eavily 'against~the verdict." Edmonds, 765 F. Supp. at 1118. T: .is is no -such case, as the discussion above concerning the suffic,ency of the evidence on the conspiracy count reveals. In additi n. 1~ Hoover-Hankerson argues that the prosecutor made imprope comment L in his rebuttal argument by stating that the ju 'y should "send a:message that Ms. Hoover-Hankerson is not above t: .e law." (CHH Mot. at 14.) The government disputes making the st tement (Gov't pp'nat 10 n.9), and the transcript reveals that Hoover- Hankers 1" n's allegation is inaccurate. While the governm, nt P stated hat "lawyers who take an oath to uphold the law nd who t lo khe poll had been completed forty minutes earlier At the time of Hoover's request, the jury was waiting to be called back into court to receive supplemental instructions abo,t deliberating over a forfeiture verdict. 6 - 33 - have,~~a, special trust _ . . are not above the law" (Tr. of 7/7/04, afternoon session, at 591, the government made no mention that 'the jurk should send a message to Hoover-Hankerson. I Nevertheless, a new trial is not warranted if a prosecut r's ~statements are harmless. See United States v. Johnson, I 31 F.3d 43, 48 (D.C. Cir. 2000) (finding harmless prosecutor's s atement asking .the jury to convict the defendant to protect othe r s from his drub dealing activities despite absence of curative I instruc ion because the court gave general instructions o convict t based only on the evidence and reminding jurors 1,'hat lawyers' arguments are not evidence); see also Gatlinq, C6 F.3d 'at 1524, (finding that prosecutor's exhortation to the jury that It send a message to the defendant did not substantially,prejudi,e I the defendant given the court's instruction that closing arguments were not evidence). Here, whether the,prosecu or's statements were proper or not, the court di t d Anstruc" the jury that the lawyers' comments were not ev *I dence. Ho t ver-Hankerson also argues that the government de I ayed turning over certain financial documents but fails to ida ntify ', how tho r e documents prejudiced her case or impeded her ability to -prepare a defense. See United States v. Moselev, 450 F. d 506, 508-09 (5th Cir. 1971) (affirming denial of motion for n I w trial e based on government's failure to produce photographs whifh ~~~~,.-y----.-- Case 1:03-cr-00188-RWR-DAR Document 126 Filed 12/30/05 Page 34 I of 36 - 34 - defens'e,,'counsel knew about, but did not request, even though the photographs were subject to a pretrial discovery order). Further, Hoover-Hankerson seeks a new trial claimin 1 an inability to have participated meaningfully in voir dire,because she cou+d not see well during the voir dire process. Notwithbtanding the fact that she never objected during he voir 1~ ~dire process 9 professing any inability to see the proceed'ngs, she I was pre ent during the entire proceedings, listened to te $ individ'al voir dire of veniremembers through a headset and t-' a engaged counsel in conversation during the voir dire process. She was by no means absent -- or effectively absent -- f om the ~proceed'ngs so as to merit a new trial. t v. Cf. United States 1 -m, /23 F.R.D. 103, 106-07 (W.D. Pa. 1958) (requiring New trial becauseino evidence established the defendant's presence when the jury was impaneled). Ho ver-Hankerson also asserts that the jurors had tI wait a 0 .busines L day for her to appear for jury selection and th 0t her I, appeara,ce in a wheelchair had the potential to cause pra judice. The jur rs were never made aware that the reason for the delay 0 1 ~was Hoe' er-Hankerson's absence and she could not have been r,prejudi bed for that reason. Hoover-Hankerson cites to no case law to support her contention that her presence in a wheelchair I caused her prejudice rather than brought her sympathy. in any 6 not allege that any substantial rights were ~affectej. See United States v. Johnson, 769 F. Supp. 389, 395-96 (D.D.c.~~IPPI), rev'd on other grounds sub nom., United States v. Brawnerl No. 92-3208, 1996 WL 397478 (D.C. Cir. June 14, 1996). CONCLUSION AND ORDER I The government produced sufficient evidence. to prov beyond:a reaso able doubt that Hoover-Hankerson and Hoover were guilty:of Counts 1, 2, 4, and 5, and that Hoover-Hankerson was uilty of 4 Count 3' However, the government did not produce suffic ent '1' evidence to prove that Hooverwas guilty of Count 3. Tk refore, it is h reby 1 ORDERED that defendant Hoover-Hankerson's motions f 'r judgmen' of acquittal and for a new trial be, and hereby are, DENIED. It is further r OR ERED that defendant Hoover's motion for judgment of .,acquitt P1 as to Counts 1, 2, 4, and 5 and for a new trie be, and a:hereby 's, DENIED. It is further IL OR ERED that defendant Hoover's motion for judgment of P as to Count 3 be, and hereby is, acquittl GRANTED. It S further 1/ ORDERED that sentencing is scheduled for March 3, 2 06 at 11:30 a.m. All supplemental sentencing memoranda must I: f i l e d by February 22, 2006. It is further 6 - 36 - ORFEtiD that this Matter be referred to the Probation Office for prekaration of supplemental presentence investigatio: reports1 SIFNED this 30th day of December, 2005. RICHARD W. ROBERTS United States Distric. Judge