United States v. Robert Turner ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 99-1134
________________
United States of America, *
*
Appellee, *
*
v. *
*
Robert Turner, *
*
Appellant. *
________________ Appeals from the United States
District Court for the
No. 99-1136 Eastern District of Missouri.
________________
United States of America, *
*
Appellee, *
*
v. *
*
Guinn Kelly, *
*
Appellant. *
________________
Submitted: May 12, 1999
Filed: August 12, 1999
________________
Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
________________
HANSEN, Circuit Judge.
A jury convicted former St. Louis, Missouri, police officers Robert Turner and
Guinn Kelly on charges stemming from a scheme to defraud a low-income housing
project funded by the United States Department of Housing and Urban Development
(HUD). The district court1 sentenced Turner to 18 months of imprisonment, and Kelly
received a 24-month sentence. Turner and Kelly appeal their convictions, and we
affirm.
I. Background
Cochran Gardens is a low-income housing project located in St. Louis, Missouri,
that receives substantially all of its funding from the federal government via HUD. The
housing project supplemented its security forces with off-duty police officers. One of
the officers hired by Cochran Gardens to supplement its security forces was Guinn
Kelly, a sergeant with the St. Louis Police Department. In September 1993, Robert
Turner, Kenny Givens, and Rodney Brunson, all of whom were also St. Louis police
officers, joined Kelly at Cochran Gardens. Turner and Givens were also partners in the
intelligence division of the St. Louis Police Department. Although many other off-duty
policemen worked at Cochran Gardens, Kelly, Turner, Givens, and Brunson comprised
a special, plainclothes unit charged with investigating drug trafficking, weapons
violations, and gathering intelligence. Almost immediately after Kelly, Turner, Givens,
and Brunson started working together at Cochran Gardens, the four men began
submitting false time cards that overstated the number of hours they worked at the
housing project.
1
The Honorable Stephen N. Limbaugh, United States District Judge for the
Eastern District of Missouri.
2
The scheme was uncovered in the Spring of 1994, and shortly thereafter Brunson
pleaded guilty and agreed to cooperate with authorities investigating the matter. A
federal grand jury eventually indicted Kelly, Turner, and Givens, and the three men
stood trial together. On the fourth day of the trial, the district court declared a mistrial
with respect to all of the defendants when it appeared that Givens's attorney might have
to testify to impeach a government witness. After the district court denied defense
motions to dismiss the indictment on double jeopardy grounds, Turner, Kelly, and
Givens appealed. See United States v. Givens, 88 F.3d 608 (8th Cir. 1996). In that
case, we concluded that although a mistrial was manifestly necessary with respect to
Givens because it was his attorney who might have to testify, there was no manifest
necessity for declaring a mistrial with respect to Turner and Kelly. See id. at 613-14.
We held, therefore, that double jeopardy considerations barred a retrial of Turner and
Kelly on the charges contained in the indictment. See id. at 614.
After our decision in the first appeal, Givens pleaded guilty and agreed to
cooperate with authorities. A superseding indictment was filed against Turner and
Kelly, which the defendants moved to dismiss on double jeopardy and res judicata
grounds. The district court denied the motion, and, with the exception of one count
against Kelly, we affirmed. See United States v. Turner, 130 F.3d 815, 820 (8th Cir.
1997), cert. denied, 118 S. Ct. 2071 (1998).
Turner and Kelly's second trial commenced in late September 1998. Brunson
and Givens testified for the government and explained how the four officers clocked
each other in and out at Cochran Gardens and submitted false time cards so that they
would be paid for work they did not perform. Brunson testified that the men actually
worked only about 40 percent of the hours reflected on their time cards. Givens
testified that the men were required to be at Cochran Gardens at approximately 10
p.m., but that requirement often conflicted with their police duties because they were
frequently assigned to work the 6 p.m. to 2 a.m. shift. According to Givens, "we
wanted to keep both [jobs], so we showed up and clocked in anyway and as soon as
3
we had a chance, we'd go back to the police department and work." (Trial Tr. Vol. 2
at 162.)
Aside from the testimony of Brunson and Givens, the government presented
substantial documentary evidence showing overlaps between the times Turner and
Kelly were on duty with the police department and the times they also claimed to be
working at Cochran Gardens. In particular, the government submitted the relevant
police department duty rosters and corresponding Cochran Gardens time cards. This
evidence showed, for example, that between September 23, 1993, and March 11, 1994,
Kelly's time overlapped on some 58 occasions, and Turner's time overlapped on 38
occasions. During one seven day period in December 1993, Kelly's overlaps were so
large that it appeared as if he worked an average of 22 hours per day, and that he twice
worked more than 24 hours in a single day. The government also presented payroll
records showing that Turner and Kelly were paid for the time reflected on their
Cochran Gardens time cards.
Turner and Kelly offered various explanations for the overlaps between the
police department duty rosters and the Cochran Gardens time cards. For example, the
defendants maintained that the police department duty rosters were unreliable because
they did not reflect the use of an unofficial form of compensatory time (comp time) that
was allegedly used to compensate officers for unpaid overtime. According to the
defendants, a police officer could submit an overtime slip, take time off, and then the
slip would be destroyed upon the officer's return to work.2 Such a practice, if it existed,
2
During his opening statement, Turner's counsel offered an explanation as to
why officers had to submit an overtime slip in order to take comp time. If an officer
was injured while on comp time, the police department might have to pay a worker's
compensation claim because the duty roster showed the officer as being on duty. By
using an overtime slip, the department could document the fact that the officer was not
injured while on duty. If the officer returned from comp time unscathed, the overtime
slip could then be torn up and the officer would be paid as if he had been on duty, and
4
would undermine the accuracy of the police department duty rosters because the rosters
would show that an officer was on duty when in fact he was not. The government,
however, offered evidence showing that although the duty rosters were not infallible,
they were generally an accurate reflection of the times police officers were on duty.
Furthermore, the government offered direct and circumstantial evidence—unrelated to
the duty rosters—showing that the defendants did not work at Cochran Gardens all of
the hours reflected on the time cards. For example, Givens and Brunson testified that
all four men routinely clocked in and then left Cochran Gardens. In fact, the
government produced evidence showing that Turner was clocked in at Cochran
Gardens even though he was out of town at a football game.
Kelly faced an additional problem in his attempt to establish the unreliability of
the police department duty rosters. As a sergeant, Kelly was ineligible for overtime,
so he could not claim that he received unofficial comp time in lieu of overtime pay.
When pressed on this matter during cross-examination, Kelly offered several, often
confusing, explanations. Eventually Kelly claimed that his position with the police
department allowed him to come and go as he pleased without permission from any
supervisor. (See Trial Tr. Vol. 5-A at 48-50.) Kelly also maintained that Cochran
Gardens gave him a secret bonus of 25 hours per week to compensate him for his
service to Cochran Gardens when he was not officially on duty at the housing project.
Aside from the asserted unreliability of the police department duty rosters, the
defendants also suggested that the time cards did not accurately reflect the hours they
worked at Cochran Gardens, and that there was physically no way they could have
falsified the time cards. For example, they claimed that the time cards were locked up
and out of their control. This argument, however, was seriously undercut by Brunson's
and Givens's testimony. Both Brunson and Givens testified that the time cards were
the duty roster would never show that the officer had taken comp time. See Trial Tr.
Vol. 1 at 184.
5
not always stored in a secure location, and in any event, Kelly had a key that allowed
the men to gain access to the time cards. Brunson further testified that when the men
could not get access to the time cards because Kelly was sick, Kelly later recorded the
times by hand. Givens testified that he also had a key, and because he lived near
Cochran Gardens, he was often tasked with returning to the housing project, early in
the morning, to clock the men out.
Although Turner and Kelly testified at trial and maintained their innocence, the
jury found both men guilty of multiple counts of making false statements to HUD, in
violation of 18 U.S.C. § 1001, aiding and abetting Kenny Givens in making false
statements to HUD, in violation of 18 U.S.C. §§ 1001 and 2, and stealing HUD funds,
in violation of 18 U.S.C. § 641. Turner and Kelly both appeal and contest certain
evidentiary rulings, as well as the sufficiency of the government's evidence against
them. Additionally, Turner contends that he is entitled to a new trial due to several
alleged instructional errors, and that Givens's and Brunson's testimony should have
been excluded pursuant to 18 U.S.C. § 201(c)(2) (antibribery statute).
II. Discussion
A. Cross-Examination of Kenny Givens
During its case-in-chief, the government questioned Kenny Givens about the
accuracy of the police department duty rosters. Givens testified that with the exception
of a few isolated incidents, the duty rosters accurately reflected the times police officers
worked. On cross-examination, Turner's counsel attempted to elicit testimony
regarding comp time. In particular, Givens was asked if he knew of a practice whereby
an officer would submit an overtime slip, take a day off, and then the slip would be
destroyed upon the officer's return. Givens testified that he was not aware of any such
practice in the intelligence division, the division where he and Turner were partners.
In an attempt to impeach Givens's credibility on this issue, Turner's counsel sought to
6
question Givens regarding statements Givens had allegedly made to defense attorneys,
including Kelly's attorney, Kurt Schultz, regarding comp time. The district court
refused to allow questions relating to conversations Givens had with defense attorneys
and would not let Mr. Schultz testify.3 On appeal, Turner and Kelly contend that the
district court infringed their confrontation rights by limiting their cross-examination of
Givens.
The Confrontation Clause of the Sixth Amendment secures a defendant's right
"to be confronted with the witnesses against him." U.S. Const. amend. VI. "The
defendant's right to confront witnesses, however, does not prevent a trial judge from
placing reasonable limits on defense counsel's cross-examination of government
witnesses, and the court has wide latitude to impose such limits." United States v.
Ortega, 150 F.3d 937, 941 (8th Cir. 1998) (quotations and brackets omitted), cert.
denied, 119 S. Ct. 837 (1999). Therefore, "[a]bsent a clear abuse of discretion and a
showing of prejudice, we will not reverse a district court's ruling limiting cross-
examination of a prosecution witness on the basis that it impermissibly infringed [a
defendant's] right of confrontation." United States v. Stewart, 122 F.3d 625, 627 (8th
Cir. 1997).
Having carefully reviewed the relevant portions of the trial transcript, we cannot
say that the district court clearly abused its discretion in limiting the cross-examination
of Givens. Even if we assume that Givens made prior inconsistent statements regarding
comp time to Mr. Schultz or other defense attorneys, those statements were not given
under oath and thus did not qualify as substantive evidence under Federal Rule of
Evidence 801(d)(1)(A) (prior statement by a witness). As such, Givens's alleged
statements would have only been admissible for the limited purpose of impeaching
3
The district court expressed concerns that defense counsel might be angling for
another mistrial and accused counsel of "playing games" with the court. (Trial Tr. Vol.
3 at 135-37.)
7
Givens's credibility, and not as substantive evidence that the alleged comp time practice
actually occurred at the police department. See Fireman's Fund Ins. Co. v. Thien, 8
F.3d 1307, 1311 (8th Cir. 1993) (noting that a prior inconsistent statement may be
admissible under Fed. R. Evid. 613(b) for impeachment purposes, but not for the truth
of the matter contained therein). In fact, had defense counsel been allowed to cross-
examine Givens with respect to the statements he allegedly made to Mr. Schultz, the
government would have been entitled to have the jury "instructed that the evidence was
admissible only to impeach [Givens] and not as evidence of a material fact." Id. at
1312.
In any event, the district court allowed the defendants to cross-examine Givens
extensively on issues related to Givens's credibility. The district court permitted
defense counsel to question Givens regarding any prior inconsistent statements Givens
may have made to nonlawyers regarding comp time. Further, the district court
permitted questioning that directly undercut the accuracy of the duty rosters. For
example, defense counsel questioned Givens regarding a personal trip Givens had taken
to North Carolina when the duty roster showed him as being on duty. In response,
Givens admitted that it was possible that the duty roster inaccurately showed him as
being on duty when he was in North Carolina. Finally, defense counsel cross-examined
Givens regarding his motivation to testify favorably for the government due to his plea
agreement. In view of the foregoing, we conclude that "[t]he jury's ability to judge
[Givens's] reliability was not significantly reduced" when the district court excluded
from the scope of cross-examination questions regarding what Givens had allegedly
told defense attorneys about comp time. United States v. Dempewolf, 817 F.2d 1318,
1321 (8th Cir.), cert. denied, 484 U.S. 903 (1987). Consequently, we cannot say that
the district court clearly abused its discretion, given its history with the prior mistrial.
We further conclude that the defendants have failed to show any meaningful
prejudice attributable to the district court's decision to limit the cross-examination of
Givens. See Stewart, 122 F.3d at 627 (noting that the court will not reverse a district
8
court's evidentiary ruling absent a showing of abuse of discretion and prejudice).
Turner and Kelly contend that Givens's testimony was critical to the government's case,
and that the case against them essentially boiled down to a swearing match between
Givens and the defendants. Therefore, according to Turner and Kelly, it was crucial
to their defense that they be allowed to cross-examine Givens as to what he told Kurt
Schultz, and possibly other defense attorneys, about the existence of comp time.
Although Givens's testimony was no doubt damaging to the defendants' cases,
we cannot ascribe such critical significance to his specific testimony regarding comp
time. Givens was not the only witness to testify as to the accuracy of the police
department duty rosters. For example, Ed Naeger, a detective in the St. Louis police
department during the time in question, also testified that the duty rosters accurately
reflected the hours officers worked. Mr. Naeger further testified that he had heard of
comp time, but that such a practice did not occur in the intelligence division of the
police department, the division in which Turner and Givens were partners while they
moonlighted at Cochran Gardens. (See Trial Tr. Vol. 4 at 63.) Furthermore, Rodney
Brunson's testimony provided substantial evidence against the defendants that did not
hinge on the accuracy of the police department duty rosters. According to Brunson, the
four men worked approximately 40 percent of the hours reflected on the Cochran
Gardens time cards, and the men coordinated who would be responsible for punching
each other's time cards. Brunson also testified that although the four had been assigned
to a special investigative unit at Cochran Gardens, he could not recall that the unit ever
actually performed those duties. Finally, as a sergeant, Kelly was ineligible for
overtime pay, thus he could not claim, as did Turner, that he received unofficial comp
time in lieu of paid overtime.
Turner and Kelly further maintain that the district court infringed their
confrontation rights when the court limited Turner's cross-examination of Givens with
respect to video surveillance conducted by Givens. According to the defendants,
Givens conducted the video surveillance in an effort to defend himself prior to the time
9
that he pleaded guilty. The district court allowed counsel for Turner to make an offer
of proof, but concluded that the surveillance evidence was not admissible because, inter
alia, it related to events occurring after the indictment. We have reviewed the relevant
portions of the record, and we cannot say that the district court clearly abused its
discretion in limiting the cross-examination of Givens with respect to the video
surveillance. Furthermore, the defendants have failed to attribute any legally
meaningful prejudice to this evidentiary decision of the district court.
In sum, we hold that the district court did not clearly abuse its discretion in
limiting the cross-examination of Givens. We further hold that the defendants are not
entitled to a reversal because they have failed to show any meaningful prejudice
attributable to the district court's decision to limit the cross-examination of Givens.
Because of our decision on this issue, we do not reach the separate question of whether
Givens's alleged statements to defense counsel regarding comp time were also
independently excludable under a joint-defense privilege.
B. Business Records Evidence
The government produced substantial documentary evidence against Turner and
Kelly. During its case-in-chief, the government introduced Cochran Gardens' time
cards and payroll records clearly showing overlaps between the times Turner and Kelly
were allegedly working at Cochran Gardens and the times reflected on the police
department duty rosters. Turner and Kelly contend that the district court erred in
admitting these records into evidence over their hearsay objections. We may reverse
a district court's determination regarding the admissibility of evidence only upon a
showing that the district court clearly abused its discretion. See Resolution Trust Corp.
v. Eason, 17 F.3d 1126, 1131 (8th Cir. 1994). As we explain below, we conclude that
the district court did not clearly abuse its discretion in admitting the time card and
payroll evidence in this case.
10
We first reject Turner and Kelly's argument that the time card and payroll
evidence contained hearsay upon hearsay.4 The fact that a business document may
contain entries in different forms or even from different sources does not necessarily
imply that a hearsay upon hearsay problem exists. When a single business record
contains different information recorded directly from multiple sources, or on multiple
occasions, there may be several instances of hearsay, but there is only one layer of
hearsay. For example, if one employee records his time on a time card each day and
a supervisor signs the card prior to submitting it to the payroll department, the time card
contains hearsay entries from both the employee and the supervisor, but only one layer
of hearsay. On the other hand, when the source of information and the recorder of that
information are not the same person, the business record contains hearsay upon
hearsay. If both the source and recorder of the information were acting in the regular
course of the organization's business, however, the hearsay upon hearsay problem may
be excused by the business records exception to the rule against hearsay. See Grogg
v. Missouri Pac. R.R. Co., 841 F.2d 210, 213-14 (8th Cir. 1988); Fed. R. Evid. 803(6).
Because the defendants offer no credible assertion that an outsider to the chain of
producing the time card and payroll records (i.e., a person not acting in the regular
course of Cochran Gardens' business) provided any of the information contained in
those records, we conclude that the district court did not clearly abuse its discretion
in admitting the records over the defendants' hearsay upon hearsay objection.
Having rejected the defendants' hearsay upon hearsay argument, we must next
consider whether the district court abused its discretion in admitting the time cards and
payroll records under the business records exception. See Fed. R. Evid. 803(6). Rule
803(6) allows for the admission of business records
4
Although the defendants use the term "double hearsay," we prefer the term
"hearsay upon hearsay" because it more accurately describes the evidentiary issue.
11
made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business
activity, and if it was the regular practice of that business activity to make
the . . . record . . ., all as shown by the testimony of the custodian or other
qualified witness.
Fed. R. Evid. 803(6).
In this case, the government called Ms. Calea Stovall-Reid, the records custodian
for the St. Louis Housing Authority, to lay the foundation for the introduction of the
time cards and payroll records.5 As the custodian, Ms. Stovall-Reid's testimony would
normally be sufficient to lay the foundation for the introduction of Cochran Gardens'
business records. Ms. Stovall-Reid, however, had never seen the documents until
shortly before the trial. Out of an abundance of caution, the government read into
evidence the former testimony of Ms. Norma Bell, the records custodian who laid the
foundation for the introduction of the time cards and payroll records at the first trial.6
Notwithstanding the testimony of Ms. Stovall-Reid and Ms. Bell, Turner and Kelly
contend that the government failed to lay a sufficient foundation for the introduction of
the time card and payroll evidence, and, therefore, the district court abused its
discretion in admitting the evidence under the business records exception to the rule
against hearsay. See Fed. R. Evid. 803(6). As with most evidentiary decisions, we
may reverse a district court's determination of the adequacy of the foundation laid for
5
The St. Louis Housing Authority took over the management of Cochran
Gardens from the Cochran Gardens Tenant Management Corporation in June 1998,
after the first trial for which the records had been subpoenaed. Therefore, at the time
of the second trial, although the St. Louis Housing Authority was responsible for
maintaining Cochran Gardens' business records, it did not possess the records because
they had been turned over pursuant to the subpoena.
6
The defendants do not contest the fact that Ms. Bell was unavailable to testify
because she could not be located.
12
the admission of evidence only if the district court clearly abused its discretion. See
United States v. Franks, 939 F.2d 600, 602 (8th Cir. 1991).
A sponsoring witness need not possess or even see the records in question before
trial. See United States v. Coohey, 11 F.3d 97, 99-100 (8th Cir. 1993) (holding that
a sponsoring witness could authenticate phone records even though she had not seen
or possessed the records prior to trial). In Coohey, we specifically noted that even if
the witness "was not the keeper of the records and did not prepare them, . . . [that]
would not impede her ability to testify that the records were authentic." Id. at 100. See
also id. at 100 n.2 (applying the same rationale to arguments specifically directed to the
foundation required under Fed. R. Evid. 803(6)). "Evidence is admissible if the trial
judge is satisfied, after consideration of such factors as the nature of the evidence, the
circumstances surrounding its preservation and custody, and the likelihood that it has
been tampered with, that the evidence has not in all reasonable probability been
changed in any significant respect." Id. at 100. Further, "Rule 803(6) is satisfied if the
custodian 'demonstrates that a document has been prepared and kept in the course of
a regularly conducted business activity.'" Franks, 939 F.2d at 602 (quoting United
States v. Pfeiffer, 539 F.2d 668, 671 (8th Cir. 1976)). Having reviewed the relevant
portions of the trial transcript, we conclude that the testimony of Ms. Stovall-Reid and
Ms. Bell sufficiently established that the time cards and payroll records had been
prepared and kept in the regular course of Cochran Gardens' business. Further,
Brunson's and Givens's testimony established how the time entries on the time cards
were made. We cannot say, therefore, that the district court clearly abused its
discretion in admitting the time card and payroll evidence over the defendants'
objections.
Finally, Turner contends that his confrontation rights were violated when the
district court allowed the government to read Ms. Bell's former testimony into evidence.
Because Ms. Bell was unavailable to testify at the second trial, and she testified at the
first trial under oath and was then subject to cross-examination by Turner, there would
13
normally be no problem reading her former testimony into evidence. See Fed. R. Evid.
804(b)(1) (permitting the introduction of an unavailable witness's former testimony "if
the party against whom the testimony is now offered . . . had an opportunity and similar
motive to develop the testimony by direct, cross, or redirect examination").
Furthermore, Turner does not argue that the time cards and payroll records were
improperly admitted at the first trial. Rather, Turner asserts that his confrontation rights
were violated in the instant case because he was unable to impeach Ms. Bell's
credibility with new evidence regarding Ms. Bell's alleged illegal activities, as
contained in an FBI memo. We find this argument unpersuasive.
The government read Ms. Bell's former testimony into evidence solely to lay the
foundation for the admission of the time card and payroll evidence. There is no
credible assertion that the evidence contained in the FBI memo was either directly
admissible or proper subject matter for cross-examination. The record does not show
that Ms. Bell had been convicted on any felony grade charges related to the alleged
illegal activities, and we reject the naked assertion that such evidence relates to Ms.
Bell's motive or bias to testify falsely in laying the foundation for the business records
in question. Simply stated, the district court did not infringe Turner's confrontation
rights by permitting the government to read Ms. Bell's former testimony into evidence.
We hold that the district court did not abuse its discretion in admitting the time
card and payroll evidence. We further hold that the district court did not violate
Turner's confrontation rights when it permitted the government to read Ms. Bell's
former testimony into evidence.
C. Jury Instructions
Turner claims that he is entitled to a new trial due to several alleged instructional
errors. We review a district court's jury instructions for abuse of discretion. See
United States v. Tucker, 169 F.3d 1115, 1119 (8th Cir. 1999). In so doing, we do not
14
consider portions of a jury instruction in isolation, but rather consider the instructions
as a whole to determine if they fairly and adequately reflect the law applicable to the
case. See id.
Turner first claims that Instruction No. 11 impermissibly "allowed the jury to
return guilty verdicts for offenses that were committed 'on or about' certain dates."
(Appellant Turner's Br. at 37.) Instruction No. 11 reads as follows:
You will note the indictment charges that the offenses were
committed "on or about" certain dates. The proof need not establish with
certainty the exact dates of the alleged offenses. It is sufficient if the
evidence in the case establishes beyond a reasonable doubt that the
offenses were committed on dates reasonably near the dates alleged.
Turner cites no authority for his proposition that using "on or about" in the instruction
was improper, and we find no error. See United States v. Williams, 657 F.2d 199, 202-
03 (8th Cir. 1981) (approving a substantially similar "on or about" instruction); see also
United States v. Duke, 940 F.2d 1113, 1120 (8th Cir. 1991) ("The law is clear that the
use of 'on or about' in an indictment relieves the government of proving that the crime
charged occurred on a specific date, so long as it occurred within a reasonable time of
the date specified."); 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions
§ 13.05 (4th ed. 1992) (collecting examples of similar federal pattern criminal jury
instructions explaining a jury's duty when a count in the indictment uses "on or about"
language).
Turner further suggests that Instruction Nos. 16 and 18 were improper because
those instructions did not follow the Eighth Circuit Model Instructions. We have held
that the Eighth Circuit Model Instructions are not binding on the district courts of our
circuit, and therefore, we decline to ascribe error solely because a district court's
instructions deviated from the model instructions. See United States v. Jones, 23 F.3d
1407, 1409 (8th Cir. 1994).
15
We also reject Turner's contention that Instruction No. 16 improperly defined
materiality. Instruction No. 16 defined the elements of making a false, fictitious, or
fraudulent statement in a matter within the jurisdiction of a federal agency, in violation
of 18 U.S.C. § 1001. In particular, the instruction required the jury to decide whether
the alleged false statement or representation was material, and instructed the jury that
"[a] statement or representation is 'material' if it has a natural tendency to influence or
be capable of influencing the decision to make payments of money." (Instruction No.
16.) According to Turner, Instruction No. 16 permitted the jury to make a finding of
materiality without specifically requiring the jury to find that Turner's false time cards
were material to the government.
The Supreme Court has held that the question of whether a statement or
representation is material within the meaning of 18 U.S.C. § 1001 is a matter for the
jury to decide. See United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (holding that
a trial judge's refusal to submit the issue of the materiality of a defendant's false
statements infringed the defendant's right to have a jury determine every element of the
charged offense beyond a reasonable doubt). In the instant case there is no dispute that
the district court committed the question of materiality to the jury, and we find no error
in the fact that Instruction No. 16 defined materiality generally, rather than by specific
reference to HUD. See United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir.
1983) ("To establish materiality of a false statement it is not necessary to show that a
government agency actually relied on the statement, that the government suffered
pecuniary loss as a result of the statement, or that the false statement was sufficient to
induce a payment or benefit."), abrogated on other grounds, United States v. Raether,
82 F.3d 192 (8th Cir. 1996).
Finally, we cannot accept Turner's claim that Instruction No. 18 was improper
because it permitted him to be convicted of violating 18 U.S.C. § 641 without any
16
position. Turner's reliance on Owen is misplaced. In Owen, the Tenth Circuit
specifically declined to decide the question of whether federal grant money in the hands
of a grantee was money that belonged to the United States for purposes of 18 U.S.C.
§ 641. See id. at 343. Rather, the court simply concluded that there was insufficient
evidence showing that the money taken by the defendant had come from HUD. See id.
at 343 ("We need not decide whether the grant money was 'money . . . of the United
States' under § 641 because there is insufficient evidence to warrant a finding that any
of the money . . . was HUD grant money."). We labor under no such difficulty in this
case. Turner stipulated that during the relevant time frame, HUD provided substantially
all of the funds for Cochran Gardens' operating budget, including security costs, and
that the funds were federal funds. (See Trial Tr. Vol. 3 at 263.) In view of this
stipulation, we find no error in Instruction No. 18. Cf. United States v. Gjerde, 110
F.3d 595, 601 (8th Cir.) (rejecting an argument that HUD grant money in the hands of
a state grantee deprived the funds of their federal character), cert. denied, 118 S. Ct.
367 (1997); United States v. Scott, 784 F.2d 787, 791 (7th Cir.) (distinguishing Owen
when the federal funding at issue was continuous), cert. denied, 476 U.S. 1145 (1986).
Turner is not entitled to a new trial due to the challenged jury instructions.
D. Other Issues
Finally, Turner and Kelly claim that there was insufficient evidence to support
their convictions. Additionally, Turner contends that the testimony of Givens and
Brunson should have been excluded pursuant to 18 U.S.C. § 201(c)(2). As our review
of the evidence above demonstrates, we have carefully considered the sufficiency
argument and we find it to be without merit. Turner's 18 U.S.C. § 201(c)(2) argument
is foreclosed by United States v. Mosby, 177 F.3d 1067, 1069-70 (8th Cir. 1999).
III. Conclusion
17
The district court's judgments with respect to Turner and Kelly are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
18