United States v. Eugene L. Cleckler , 265 F. App'x 850 ( 2008 )


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  •                                                              [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
    ________________________   ELEVENTH CIRCUIT
    FEBRUARY 19, 2008
    THOMAS K. KAHN
    No. 07-13184
    CLERK
    Non-Argument Calendar
    ________________________
    D. C. Docket No. 06-00202-CR-W-N
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    EUGENE L. CLECKLER,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Alabama
    _________________________
    (February 19, 2008)
    Before CARNES, BARKETT and HULL, Circuit Judges.
    PER CURIAM:
    After a jury trial, Eugene Cleckler appeals his convictions and sentences for
    conspiracy to defraud the United States, in violation of 
    18 U.S.C. §§ 371
     and 2,
    and for corrupt or forcible interference with the administration of the internal
    revenue laws, in violation of 
    26 U.S.C. § 7212
    (a) and 
    18 U.S.C. § 2
    . After review,
    we affirm.
    I. Alleged Giglio Violation
    Defendant Cleckler owned a business called “Ezy-Ryder” and co-owned
    another business called “Gene’s Marine.” Tanya Morris and Cleveland Brown are
    Cleckler’s former employees. Morris and Brown testified that they falsified
    documents to reflect sales by Ezy-Ryder that were actually attributable to Gene’s
    Marine. Cleckler submitted the fabricated documents to the Internal Revenue
    Service (“IRS”) during its audit into the proper allocation of income among Gene’s
    Marine and Ezy-Ryder.
    In arguing on appeal for a new trial, Cleckler alleges that the government
    had immunity agreements with witnesses Morris and Brown and failed to disclose
    them, thereby violating the district court’s standing discovery order and its
    obligations under Giglio v. United States, 
    405 U.S. 150
    , 
    92 S. Ct. 763
     (1972).1
    1
    Where a witness’s credibility is at issue, the government’s obligation under Brady
    includes the disclosure of “evidence of any understanding or agreement as to a future
    prosecution” of such witness for impeachment purposes. Giglio, 
    405 U.S. at 154-55
    , 
    92 S. Ct. at
    766 (citing Brady v. Maryland, 
    373 U.S. 83
    , 87, 
    83 S. Ct. 1194
    , 1196-97 (1963)).
    We review for an abuse of discretion the district court’s denial of a motion for new trial
    based on a claim that the government failed to disclose material evidence. United States v.
    Brown, 
    441 F.3d 1330
    , 1350 (11th Cir. 2006), cert. denied, 
    127 S. Ct. 1149
     (2007).
    2
    Cleckler contends that information about these immunity agreements was material
    to his defense, as the government’s case hinged on the credibility of these
    witnesses. Cleckler has not shown reversible error for two reasons.
    First, Cleckler has not proved that either witness actually had an immunity
    agreement with the government in exchange for testimony against Cleckler.
    Brown denied having any discussion with IRS Agent Kyle Clarke regarding
    immunity from prosecution in exchange for his testimony.2 Morris did testify that
    when she met with Agent Clarke, she confirmed with him that she would not be
    prosecuted, but Morris never stated that Agent Clarke explained she would not be
    prosecuted in exchange for her testimony. There is no evidence that the
    government’s decision to forgo prosecution was in exchange for her testimony.
    Rather, Agent Clarke’s testimony demonstrates that no such immunity
    agreement existed. Agent Clarke testified about the meeting with Morris and
    Brown. According to Agent Clarke, after the meeting, Morris asked if she was
    “going to get in trouble for this.” Agent Clarke explained this IRS policy: before
    the IRS talks to a person, if the person is under investigation, the IRS must notify
    her that she is under investigation and does not have to answer any questions.
    2
    Morris did testify that Brown told her the government would not prosecute them if they
    provided information, but Morris also admitted that she only assumed Agent Clarke told this to
    Brown and she did not know if Brown ever actually talked to anyone from the government about
    immunity.
    3
    Agent Clarke told Morris that because he did not have an investigation on her and
    her IRS non-custody rights had not been read to her, he could not use anything she
    told him in prosecution against her. Thus, according to Agent Clarke, he merely
    informed Morris that her statements that day could not be used against her and
    never indicated that she would not be prosecuted based on her willingness to
    testify.
    Second, and even if a factual issue exists as to whether Morris and Brown
    believed they had immunity agreements, Cleckler has not shown that he suffered
    prejudice in the delayed disclosure of the alleged agreements. “Delayed disclosure
    may be grounds for reversal, but only if the defendant can show prejudice, e.g., the
    material came so late that it could not be effectively used.” United States v.
    Bueno-Sierra, 
    99 F.3d 375
    , 379 (11th Cir. 1996) (quotation marks and citation
    omitted). In this case, Cleckler’s attorney had the full opportunity to cross-
    examine Morris, Brown, and Agent Clarke after Morris’s testimony, and, in fact,
    did question Morris and Brown about their understanding regarding potential
    prosecution. See 
    id. at 379-80
     (noting that prejudice was averted on Brady claim
    where, following delayed disclosure, additional cross-examination of the witness
    was allowed and impeaching material was fully explored). Accordingly, we
    cannot say the district court erred in denying Cleckler’s motion for a new trial.
    4
    II. Crime-Fraud Exception
    Cleckler next argues that the district court improperly compelled his attorney
    Edward Selfe to testify concerning privileged information under the crime-fraud
    exception.3 “The attorney-client privilege does not protect communications made
    in furtherance of a crime or fraud.” In re Grand Jury Investigation (Schroeder),
    
    842 F.2d 1223
    , 1226 (11th Cir. 1987). We employ a two-part test to examine the
    applicability of the crime-fraud exception:
    First, there must be a prima facie showing that the client was engaged
    in criminal or fraudulent conduct when he sought the advice of
    counsel, that he was planning such conduct when he sought the advice
    of counsel, or that he committed a crime or fraud subsequent to
    receiving the benefit of counsel’s advice. Second, there must be a
    showing that the attorney’s assistance was obtained in furtherance of
    the criminal or fraudulent activity or was closely related to it.
    Cox v. Adm’r U.S. Steele & Carnegie, 
    17 F.3d 1386
    , 1416 (11th Cir. 1994)
    (citation omitted). “The first prong is satisfied by a showing of evidence that, if
    believed by a trier of fact, would establish the elements of some violation that was
    ongoing or about to be committed.” Schroeder, 
    842 F.2d at 1226
    . “The second
    3
    We review the district court’s findings on the applicability of both prongs of the crime-
    fraud exception for an abuse of discretion. See In re Grand Jury (G.J. No. 87-03-A), 
    845 F.2d 896
    , 898 (11th Cir. 1988); In re Grand Jury Investigation (Schroeder), 
    842 F.2d 1223
    , 1226-27
    (11th Cir. 1987).
    As an initial matter, Cleckler’s brief makes a passing reference to protected “attorney
    work product” that Selfe was ordered to reveal. Because Cleckler failed to develop an argument
    on this issue, he abandoned it. See United States v. Jernigan, 
    341 F.3d 1273
    , 1284 n.8 (11th Cir.
    2003).
    5
    prong is satisfied by a showing that the communication is related to the criminal or
    fraudulent activity established under the first prong.” Id. at 1227.
    In this case, Selfe represented defendant Cleckler in his appeal of IRS Agent
    Frank Brand’s finding that funds deposited into Ezy-Ryder’s account actually
    represented sales by Gene’s Marine. Selfe told Cleckler it would be helpful to
    document any sales Ezy-Ryder made of boats or trailers to third parties. Selfe later
    received documentation from Cleckler, including invoices and deposit slips, and
    produced them to Agent Brand. Agent Brand requested additional documentation
    to support the submitted invoices. Selfe asked Cleckler if he had any additional
    documentation, and Cleckler provided the alleged back-up documentation.
    In his brief on appeal, Cleckler argues the following testimony by Selfe
    violated the attorney-client privilege:
    [Government’s lawyer]: Did you speak with Gene Cleckler about
    Frank Brand’s request for additional documentation?
    [Selfe]: Yes, I did.
    [Government’s lawyer]: Can you describe that conversation, please.
    [Selfe]: I cannot describe the conversation other than to say I asked
    him if there was any backup information to support those invoices.
    [Government’s lawyer]: And what was Mr. Cleckler’s response?
    [Selfe]: He said he would make an–my best recollection is that he said
    he would make an investigation and see.
    We cannot say the district court abused its discretion in finding that Selfe’s
    above testimony fell within the crime-fraud exception to the attorney-client
    6
    privilege.4 Here, the evidence shows that the IRS reported that Cleckler owed
    additional taxes and that Cleckler obtained Selfe’s representation in the wake of
    that IRS report. After Selfe told Cleckler it would help his IRS appeal to produce
    documents of Ezy-Ryder’s sales to third parties, Cleckler submitted fabricated
    documents, through Selfe, to Agent Brand that reflected fictitious third-party sales
    by Ezy-Ryder. Cleckler further submitted additional fabricated documents after
    Agent Brand’s request for back-up documentation. Cleckler submitted these
    fabricated documents as part of his ongoing conduct to defraud the IRS. Thus,
    Cleckler “committed a crime or fraud subsequent to receiving the benefit of
    4
    Cleckler’s brief cites only to “R2-276” for the attorney conversation. However, Selfe
    testified regarding another conversation with Cleckler at R2-270-71, as follows:
    [Government’s lawyer]: Now, did you ask Gene Cleckler whether Ezy-Ryder had
    sold boats to customers other than–other than Gene’s Marine?
    [Selfe]: Yes, I did.
    [Government’s lawyer]: Okay. . . . What was Mr. Cleckler’s response–Mr. Gene
    Cleckler’s response to your question about Ezy-Ryder sales to third parties?
    [Selfe]: Well, my best recollection is he did think that there were some sales of boats
    or trailers by Ezy-Ryder to third parties.
    [Government’s lawyer]: And did you talk to Eugene Cleckler about documenting
    those third-party sales?
    [Selfe]: I did say that if Ezy-Ryder did sell boats or trailers to third parties, it would
    be helpful to document those sales.
    The arguments in Cleckler’s brief seem broader than the conversation above, and there is
    an issue as to whether Cleckler adequately challenged this conversation as well. We need not
    resolve these questions because, as to this conversation, our analysis of the crime-fraud
    exception would apply equally to this testimony. To the extent Cleckler appeals Selfe’s
    testimony “about all facets of the IRS audit,” the attorney-client privilege does not apply to
    conversations that Selfe had with people other than Cleckler, for instance, an IRS administrative
    officer. See Schroeder, 
    842 F.2d at 1224-25
     (“The attorney-client privilege attaches only to
    communications made in confidence to an attorney by that attorney’s client . . . .” (emphasis
    added)).
    7
    counsel’s advice.” Cox, 
    17 F.3d at 1416
    . As to the second prong, the
    communications at issue were related to the fraudulent activity: Cleckler obtained
    Selfe’s assistance to further his fraudulent activity and used Selfe to provide
    additional fabricated documents to Agent Brand.
    III. Alleged Hearsay Violation
    Cleckler also argues that the district court improperly admitted into evidence
    IRS reports and memoranda that contained inadmissible hearsay statements.5
    Specifically, the district court admitted government’s exhibit 25, a work paper that
    Agent Brand prepared during his audit of Ezy-Ryder and as part of his official
    duties for the IRS.6 Exhibit 25 outlined Agent Brand’s findings and contained the
    hearsay statements of Cleckler’s former accountant Janice Hull. The district court
    admitted exhibit 25 as both a record of a regularly conducted business activity and
    a record of a public agency, under Federal Rules of Evidence 803(6) and 803(8)
    5
    We review the district court’s evidentiary rulings for clear abuse of discretion. United
    States v. Dickerson, 
    248 F.3d 1036
    , 1046 (11th Cir. 2001). The district court’s factual findings
    concerning the trustworthiness of a business or public record are “reversible only if clearly
    erroneous.” United States v. Petrie, 
    302 F.3d 1280
    , 1288 (11th Cir. 2002).
    6
    Cleckler also alleges that the district court admitted other government exhibits “that each
    contained many alleged witness statements and conclusions by the tax auditor.” Some of the
    exhibits that Cleckler identifies were not even admitted by the district court. As to the one
    exhibit that was admitted, exhibit 101, Cleckler fails to identify the particular statement or
    statements that should not have been admitted. Because Cleckler did not develop this argument
    in his brief, we deem it abandoned. See Jernigan, 
    341 F.3d at
    1284 n.8. In any event, exhibit
    101 was an IRS form prepared by Agent Brand that contained his conclusions about what
    changes should be made to Gene’s Marine tax returns, and Cleckler has shown no reversible
    error as to the admission of exhibit 101.
    8
    respectively.
    The government argues that Cleckler has not shown that the district court
    abused its discretion in admitting exhibit 25, as the document fell within both the
    business records and public records exceptions to the hearsay rule. Further, the
    government points out that Cleckler has not demonstrated that the district court’s
    finding that exhibit 25 was otherwise trustworthy was clearly erroneous. We need
    not resolve these issues because we readily conclude that any alleged error in
    admitting exhibit 25 was harmless in any event. Through the testimony of Selfe,
    Morris, and Brown, and some of the fabricated documents in issue, the government
    clearly established that Cleckler directed the fabrication of documents reflecting
    fictitious third-party sales and that he submitted these documents to the IRS.
    Given the overwhelming evidence of Cleckler’s guilt, we conclude that any such
    error would have been harmless.
    IV. Obstruction-of-Justice Enhancement
    Finally, Cleckler argues that the district court improperly applied an
    obstruction-of-justice enhancement to his advisory sentencing guidelines
    calculation, under U.S.S.G. § 3C1.1, based on his trial testimony.7 Cleckler
    7
    We review the district court’s factual findings for clear error and the application of the
    guidelines to those facts de novo. United States v. Massey, 
    443 F.3d 814
    , 818 (11th Cir. 2006).
    However, we “accord great deference to the district court’s credibility determinations” in
    reviewing “an obstruction of justice enhancement based on perjury.” United States v. Singh, 291
    9
    contends that the enhancement is not intended to punish a defendant for exercising
    his constitutional right to deny or refuse to admit his guilt. According to Cleckler,
    he did not perjure himself at trial by concocting false, alternative factual scenarios;
    rather, he merely denied the events as portrayed by Brown and Morris.
    Section 3C1.1 of the Sentencing Guidelines provides for a two level
    enhancement if:
    (A) the defendant willfully obstructed or impeded, or attempted to
    obstruct or impede, the administration of justice during the course of
    the investigation, prosecution, or sentencing of the instant offense of
    conviction, and (B) the obstructive conduct related to . . . [the] offense
    of conviction and any relevant conduct . . . .
    U.S.S.G. § 3C1.1 (2000). Examples of covered conduct include “committing,
    suborning, or attempting to suborn perjury.” Id. at cmt. n.4(b).
    A sentence enhancement based on a finding of perjury does not chill a
    defendant’s right to testify, because “a defendant’s right to testify does not include
    a right to commit perjury.” United States v. Dunnigan, 
    507 U.S. 87
    , 96, 
    113 S. Ct. 1111
    , 1117 (1993). For purposes of a § 3C1.1 enhancement, we have adopted the
    Supreme Court’s definition of perjury as “false testimony concerning a material
    matter with the willful intent to provide false testimony, rather than as a result of
    confusion, mistake, or faulty memory.” United States v. Singh, 
    291 F.3d 756
    , 
    763 F.3d 756
    , 763 (11th Cir. 2002).
    10
    (11th Cir. 2002) (quoting Dunnigan, 
    507 U.S. at 94
    , 
    113 S. Ct. at 1116
    ).
    Accordingly, four elements must be met to support a finding of perjury: (1) the
    defendant testified under oath; (2) the testimony was false; (3) the testimony was
    material; and (4) the testimony was “given with the willful intent to provide false
    testimony and not as a result of a mistake, confusion, or faulty memory.” 
    Id.
     at
    763 n.4.
    Upon review of the record and the parties’ briefs, we discern no error with
    regard to the application of the § 3C1.1 enhancement here. The record belies
    Cleckler’s contention that the district court imposed the enhancement merely
    because he testified and was found guilty. Rather, the district court conducted an
    independent review of the record and made specific findings of perjury, which are
    supported by the record and are not clearly erroneous.
    For all of these reasons, we affirm Cleckler’s convictions and sentences.
    AFFIRMED.
    11