United States v. Jerry Wainright ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3819
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas
Jerry Wade Wainright, *
*
Appellant. *
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Submitted: September 9, 2003
Filed: December 9, 2003
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Before LOKEN, Chief Judge, and McMILLIAN and HANSEN, Circuit Judges.
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McMILLIAN, Circuit Judge.
Jerry Wade Wainright (“defendant”) appeals from a final judgment entered in
the United States District Court1 for the Western District of Arkansas upon a jury
verdict finding him guilty of interstate transportation of stolen property, in violation
of 18 U.S.C. §§ 2314, 2. The district court sentenced him to 24 months
1
The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
imprisonment, three years supervised release, restitution in the amount of
$15,016.92,2 and a special assessment of $100.00. For reversal, defendant argues that
the district court erred in (1) admitting an investigation summary (Government
Exhibit 40) into evidence, (2) admitting defendant’s bank statements into evidence
(Government Exhibits 28, 30, 31, 32, 34, and 36), (3) denying defendant’s motion for
judgment of acquittal, (4) calculating loss in regard to defendant’s total offense level,
and (5) applying a two-level enhancement for more than minimal planning. For the
reasons discussed below, we affirm the conviction and sentence.
JURISDICTION
Jurisdiction in the district court was proper pursuant to 18 U.S.C. § 3231.
Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). The notice of appeal was timely filed pursuant to Rule 4(b) of the Federal
Rules of Appellate Procedure.
BACKGROUND
Between December 1995 and December 1997 defendant contracted to cut and
haul timber in Arkansas and Louisiana for several different landowners or managers.
These contracts were on a pay-as-cut basis. Pay-as-cut means a per unit price is
agreed upon and the contractor pays as he or she cuts and hauls the timber, usually
on a weekly or bi-weekly basis.
Under the Government’s theory of the case, defendant would cut particular
tracts of timber on a pay-as-cut basis and would agree to pay for all loads of timber
2
The amount of restitution was $6,501.85 to Deltic Land and Timber Company
and $8,515.07 to Mark David Burnside. The restitution that was ordered is for timber
that defendant cut and for which he did not pay the timber owners.
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removed from said tracts on a weekly basis. Defendant agreed to haul the loads to
specific mills, but would cause some of the loads to be delivered to unauthorized
mills and turn in the loads under his name or someone else’s name, instead of the
name of the actual owner. Defendant would use the name of a legitimate timber
dealer or timber company to disguise the source and true owner of the timber so that
he would receive the full value for the timber. Defendant received direct payment
from the timber mills for all the loads turned in under his contracts. Defendant would
then give the landowners or timber managers checks and the scale tickets for timber
he represented he had cut and hauled from timber tracts. As a result of his scheme,
defendant received in excess of $350,000.00.
In October 1997, Jim Baldwin, an investigator with the Louisiana Department
of Agriculture and Forestry, received a timber theft complaint from Mark David
Burnside regarding property he owned in Louisiana. Burnside stated that in
November 1996 he hired defendant to log some of his property on a pay-as-cut basis.
Defendant began working on Burnside’s property in November 1996 and concluded
in January 1997. Burnside claimed that defendant did not pay him for timber he
removed from Burnside’s property. Baldwin collected the scale tickets and checks
that Burnside received from defendant. Burnside pointed out that one of the scale
tickets defendant gave him had the name Deltic Land and Timber Company (“Deltic”)
on it, which led Burnside to believe the timber did not come from his land.
During November and December 1997, Baldwin went to various mills and
wood-receiving facilities in Louisiana and Arkansas and found tickets that had
Burnside’s name or address on them. Baldwin also found tickets that had been turned
in with defendant’s name and which had been paid in total to defendant. Baldwin and
FBI Special Agent Charles Fields began a joint investigation into defendant’s logging
activities from December 1995 through December 1997. They contacted numerous
landowners, mills, wood-receiving facilities, and wood dealers in Arkansas and
Louisiana. The investigators obtained scale tickets, settlement sheets, checks, and
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logging records involving defendant, his company Wainright Trucking, and Circle J
Logging. The investigators were able to identify 541 loads that had been stolen by
defendant. These stolen loads had a value of $369,329.07. Of the 541 stolen loads,
157 had been transported in interstate commerce and had a value of $107,977.26.
In January 2002, a federal grand jury charged defendant in a superceding
indictment with six counts of mail fraud and two counts of interstate transportation
of stolen property. Defendant’s jury trial commenced on June 10, 2002. During the
trial, the district court admitted into evidence Government Exhibit 40, a summary of
defendant’s logging activities prepared by Baldwin over defendant’s objection. The
district court also admitted into evidence Government Exhibits 28, 30, 31, 32, 34, and
36, which were summaries of defendant’s bank accounts in a spreadsheet format.
These bank account summaries, admitted over defendant’s objections, showed that
defendant had written several checks with insufficient funds. The district court
denied defendant’s motion for judgment of acquittal.
The jury found defendant guilty of interstate transportation of stolen property,
in violation of 18 U.S.C. §§ 2314, 2 (count 7). The jury found defendant not guilty
on six counts of mail fraud and an additional count of interstate transportation of
stolen property. The presentence report recommended an 11-level enhancement in
offense level because the loss was in excess of $350,000.00 and a 2-level
enhancement for more than minimal planning. Defendant objected to the
enhancements. The district court denied the objections. The district court sentenced
defendant to 24 months imprisonment, three years supervised release, restitution in
the amount of $15,016.92, and a special assessment of $100.00. This appeal
followed.
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DISCUSSION
Logging Summary
Defendant argues on appeal that the district court abused its discretion in
admitting Government Exhibit 40, a summary of defendant’s logging activities from
December 1995 to December 1997 containing information from already admitted
evidence. The summary included the date, time, product, mill, landowner, location
or origin of loads, and whether the landowner had been paid. Defendant objected to
Government Exhibit 40 at trial. The district court admitted the summary and gave a
limiting instruction, pursuant to United States v. Jennings, 724 F.2d 436 (5th Cir.),
cert. denied, 467 U.S. 1227 (1984). A summary must be accurate and nonprejudicial.3
See United States v. Modena, 302 F.3d 626, 633 (6th Cir. 2002), cert. denied, 537
U.S. 1145 (2003). Defendant argues that Government Exhibit 40 impermissibly
contained Baldwin’s conclusions and assumptions as to payments. Defendant also
argues that the prejudicial nature of a summary cannot be overcome by a limiting
instruction.
“The use of summary charts, diagrams, and other visual aids is generally
permissible in the sound discretion of the trial court.” United States v. Preciado, 336
F.3d 739, 745 (8th Cir. 2003) (quoting United States v. Crockett, 49 F.3d 1357, 1360
(8th Cir. 1995)). Thus, we review the admission of the summary under an abuse of
discretion standard.
3
“This means... that the information on the document summarizes the
information contained in the underlying documents accurately, correctly, and in a
nonmisleading manner.” United States v. Bray, 139 F.3d 1104, 1110 (6th Cir. 1998).
Here the underlying documents were admitted.
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Summary exhibits that fairly summarize the evidence are authorized by
Rule 1006 of the Federal Rules of Evidence.4 See United States v. Orlowski, 808
F.2d 1283, 1289 (8th Cir. 1986), cert. denied, 482 U.S. 927 (1987). Summary charts
may be used when they help in understanding testimony already introduced and the
preparing witness is subject to cross-examination with all documents used to prepare
the summary. See United States v. Caswell, 825 F.2d 1228, 1235 (8th Cir. 1987).
Charts or summaries may include assumptions and conclusions, but said assumptions
and conclusions must be based upon evidence in the record. See United States v.
Lewis, 759 F.2d 1316, 1329 n.6 (8th Cir.), cert. denied, 474 U.S. 994 (1985). When
a district court sends a chart or diagram admitted under Rule 1006 to a jury, a limiting
instruction is appropriate. See United States v. Possick, 849 F.2d 332, 339 (8th Cir.
1988).
At trial, Baldwin explained in detail how he developed the summary from the
voluminous records of the various victims, mills, wood-receiving facilities, and wood
dealers in Arkansas and Louisiana. These voluminous records had previously been
introduced into evidence. Baldwin also explained how he determined whether a load
was stolen. Baldwin’s summary was fair, accurate, correct and nonmisleading.
Defense counsel cross-examined Baldwin about the summary. The district court gave
4
Rule 1006 of the Federal Rules of Evidence states:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary, or
calculation. The originals, or duplicates, shall be made
available for examination or copying, or both, by other
parties at reasonable time and place. The court may order
that they be produced in court.
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the jury a limiting instruction on the use of the summary. Therefore, upon careful
review, we cannot say that the district court abused its discretion in admitting the
summary.
Bank Records Summaries
Defendant also argues that the district court abused its discretion in admitting
Government Exhibits 28, 30, 31, 32, 34, and 36, which were summaries of
defendant’s bank records put into a spreadsheet format. These exhibits were prepared
from Government Exhibits 27, 29, 33, and 35, which had previously been introduced
into evidence by stipulation. Defendant argued that some of the bank records noted
insufficient fund checks, and that such notations made the summaries more
prejudicial than probative. The district court denied defendant’s objection and
admitted the exhibits. Defendant argues that jurors could have believed that because
he had several insufficient fund checks, he would be more likely to commit the crimes
alleged by the Government.
We will reverse a district court’s evidentiary rulings only where there has been
a clear abuse of discretion. See United States v. Briley, 319 F.3d 360, 363 (8th Cir.
2003).
Federal Rule of Evidence 1006 permits the use of a summary of business
records provided they are based upon evidence in the record. See Lewis, 759 F.2d
at 1329 n.6. Where the information contained in a business records summary is
introduced at trial, and the underlying evidence is available to both parties, a district
court does not abuse its discretion by admitting the summary. See C.L. Maddox, Inc.
v. Benham Group, Inc., 88 F.3d 592, 601 (8th Cir. 1996).
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Steven Williams, an FBI financial analyst, testified that Government
Exhibits 28, 30, 31, 32, 34, and 36 were summaries of defendant’s bank accounts put
into a spreadsheet format that would be easy to read and had been prepared from
already admitted Government Exhibits 27, 29, 33, and 35. The Government argued
that the summaries of defendant’s bank records were evidence of defendant’s
financial condition that was relevant to his motive for the fraudulent scheme. The
district court did not abuse its discretion in admitting into evidence Government
Exhibits 28, 30, 31, 32, 34, and 36.
Motion for Judgment of Acquittal
Defendant also argues that the district court erred in denying his motion for
judgment of acquittal. Defendant argues that there are two issues on appeal:
(1) whether he transported stolen property across state lines, and (2) whether he
devised or intended to devise a scheme or artifice to defraud. As to the first issue,
defendant contends that the property that he transported across state lines was not
stolen because he had the right to possess that property based upon his timber cutting
contracts. As to the second issue, defendant argues that he was not engaged in, nor
did he devise, a scheme or artifice to defraud. Defendant argues that he acquired the
subject property with a “pay as you go” contract, meaning defendant would contract
to cut timber and then pay the person who originally owned the timber a value only
after defendant was paid by the mill. Defendant argues that, at worst, he simply did
not pay on an account what is owed because of sloppy paperwork. Thus, defendant
argues that the Government failed to meet its burden of proving its case beyond a
reasonable doubt, and the judgment of acquittal should have been granted.
Under circumstances where a defendant presents evidence in his behalf after
the denial of his motion for judgment of acquittal at the close of the Government’s
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case, which defendant did in this case, we examine the evidence as a whole, including
that offered by the defendant. See United States v. Davis, 542 F.2d 743, 746 (8th
Cir.), cert. denied, 429 U.S. 1004 (1976). We view the evidence in the light most
favorable to the verdict and give the Government the benefit of all reasonable
inferences that can logically be drawn from the evidence. See United States v.
Nambo-Barajas, 338 F.3d 956, 960 (8th Cir. 2003). We must uphold the verdict if
there is an interpretation of the evidence that would allow a reasonable-minded jury
to find the defendant guilty beyond a reasonable doubt. Id. The verdict of the jury
must not lightly be overturned. See United States v. Gillings, 156 F.3d 857, 860 (8th
Cir. 1998).
Defendant was charged with interstate transportation of stolen property, in
violation of 18 U.S.C. § 2314.5 There are four elements to the offense of interstate
5
18 U.S.C. § 2314 provides in pertinent part:
Whoever transports, transmits, or transfers in interstate or
foreign commerce any goods, wares, merchandise,
securities or money, of the value of $5,000 or more,
knowing the same to have been stolen, converted or taken
by fraud; or
Whoever, having devised or intending to devise any
scheme or artifice to defraud, or for obtaining money or
property by means of false or fraudulent pretenses,
representations, or promises, transports or causes to be
transported, or induces any person or persons to travel in,
or to be transported in interstate or foreign commerce in the
execution or concealment of a scheme or artifice to defraud
that person or those persons of money or property having
a value of $5,000 or more...
Shall be fined under this title or imprisoned not more than
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transportation of stolen property: (1) the property was stolen or taken by fraud; (2) the
property had a total value of $5,000.00 or more; (3) after the property was stolen or
taken by fraud, the defendant moved it or caused it to be moved across a state line;
and (4) at the time the defendant moved or caused the property to be moved across
a state line, the defendant knew that it had been stolen or taken by fraud. See United
States v. Tasy, 203 F.3d 1060, 1062 (8th Cir. 2000); United States v. Bond, 231 F.3d
1075, 1077 (7th Cir. 2000).
“[F]raud is a broad term, which includes false representations, dishonesty, and
deceit.” United States v. Grainger, 701 F.2d 308, 311 (4th Cir.), cert. denied, 461
U.S. 947 (1983). The evidence at trial showed defendant took the timber by fraud.
Defendant’s scheme involved contracting to cut and haul timber and then falsely
representing to the timber owners that he had accounted for all of the timber. After
this deceit, defendant dishonestly kept some or all of the proceeds from the sales of
the timber for himself. Therefore, the timber was stolen or taken by fraud. The
transportation of the timber is not rendered innocent by the fact that the fraud did not
reach fruition until after the arrival of the loads at the mills. See United States v.
Ferrara, 571 F.2d 428, 430 (8th Cir.), cert. denied, 437 U.S. 907 (1978). Defendant’s
contention that none of the property that he transported across state lines was stolen
is without merit. Title to goods transported in interstate commerce is not a defense,
if the title and possession were secured as a result of fraud or the goods were stolen
within the meaning of 18 U.S.C. § 2314. See Gay v. United States, 408 F.2d 923, 927
(8th Cir.), cert. denied, 396 U.S. 823 (1969). As we stated, defendant’s possession
of the timber was secured as a result of fraud. Therefore, after reviewing the evidence
as a whole, we conclude that a reasonable jury could have found beyond a reasonable
doubt that defendant knew that the timber had been stolen or taken by fraud.
ten years, or both.
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The evidence showed that the value of the timber stolen or taken by fraud by
defendant exceeded $5,000.00 and that defendant moved or caused the timber to be
moved across the Louisiana/Arkansas state line. Defendant argues that the
Government did not prove that he devised or intended to devise a scheme or artifice
to defraud. Fraudulent intent may be inferred from a series of acts and relevant
circumstances. See United States v. Snelling, 862 F.2d 150, 154 (8th Cir. 1988). The
evidence showed that defendant fraudulently acted in representing that he had
accounted for all of the timber that was he contracted to cut and haul, while actually
keeping some or all of the proceeds from the sale of the timber for himself.
Defendant argues that the tickets he sent to landowners bearing the names of other
companies showed nothing more than sloppy paperwork. However, fraud “may result
from reckless and needless representation even when not made with a deliberate
intent to deceive.” Grainger, 701 F.2d at 311. A reasonable jury could have
concluded from the evidence as a whole that defendant devised or intended to devise
a scheme or artifice to defraud beyond a reasonable doubt. Accordingly, the district
court properly denied defendant’s motion for judgment of acquittal.
Calculation of Loss
Defendant argues that the district court erred in calculating loss in regard to
defendant’s total offense level. The November 1, 1995 edition of the Guidelines
Manual was used in this case. Defendant’s sentence was based on a total offense
level of 17. The base offense level was 4 pursuant to U.S.S.G. § 2B1.1. The base
offense level was increased by 11 levels because the total loss was more than
$350,000.00. Defendant objected, arguing that because the loss in the count of
conviction was $23,724.70, the loss for sentencing purposes should be based only on
that figure, not the “more than $350,000.00" figure. The district court found that the
loss included relevant conduct caused by the scheme, noting that acquitted conduct
can be considered if it is proved by a preponderance of the evidence, and concluded
that the loss of more than $350,000.00 was supported by a preponderance of the
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evidence. Defendant argues that this ruling violates Apprendi v. New Jersey, 530
U.S. 466, 490 (2000), which held that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Defendant
concedes that including his acquitted conduct did not put his sentence beyond the
statutory maximum, but argues that, under Apprendi, a jury should make factual
findings as to matters that enhance his sentence.
Normally we review a district court's factual determinations at sentencing for
clear error and its application of the sentencing guidelines de novo. See United States
v. Waldman, 310 F.3d 1074, 1079 (8th Cir. 2002). However, because defendant did
not raise his Apprendi argument before the district court, his claim is reviewed for
plain error. See United States v. Walker, 324 F.3d 1032, 1041 (8th Cir.), cert. denied,
124 S.Ct. 247 (2003).
In United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000), a case decided
after Apprendi, this court reaffirmed that acquitted conduct can be considered when
determining a sentence under the Sentencing Guidelines, so long as that conduct has
been proved by a preponderance of the evidence. The district court found that the
total value of the loss, including the acquitted conduct, by a preponderance of the
evidence, exceeded $350,000.00. Furthermore, the rule of Apprendi only applies
where the district court’s factual determination increases the maximum sentence
beyond the statutory range authorized by the jury's verdict. See Walker, 324 F.3d at
1041. Because defendant’s sentence did not exceed the statutory maximum sentence
(the statutory maximum sentence is 10 years; defendant was sentenced to 24 months
imprisonment), Apprendi does not apply. We hold that the district court did not
commit plain error in calculating the total offense level and that there was no
Apprendi violation.
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Enhancement Under U.S.S.G. § 1B1.1
Finally, defendant argues that the district court erred in applying a two-level
enhancement for more than minimal planning. U.S.S.G. § 1B1.1 defines more than
minimal planning as “[p]lanning in a case involving repeated acts over an extended
period of time.” The district court concluded that defendant planned the scheme
involving repeated acts over an extended period of time and denied defendant’s
objection to the two-level enhancement. Defendant argues that, under Apprendi, a
jury should have determined whether he engaged in more than minimal planning.
Defendant did not raise his Apprendi argument before the district court, and so
we review his claim for plain error. See Walker, 324 F.3d at 1041. As we have stated,
the rule of Apprendi only applies where the district court’s factual determination
increases the maximum sentence beyond the statutory range authorized by the jury's
verdict. See id. Defendant’s sentence did not exceed the statutory maximum
sentence. Thus, Apprendi does not apply. Furthermore, the district court did not
commit plain error when it applied the enhancement for more than minimal planning.
Defendant’s scheme required considerable effort, including taking loads to multiple
mills and issuing landowners fraudulent scale tickets, over an extended period of
time. Therefore, we conclude that the district court did not commit plain error in
applying a two-level enhancement for more than minimal planning.
CONCLUSION
For the reasons stated, we affirm the conviction and sentence.
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