UNITED STATES of America, Appellee, v. Bradley Shane McCORKLE, Appellant.
No. 11-2650.
United States Court of Appeals, Eighth Circuit.
Submitted: March 15, 2012. Filed: July 31, 2012.
688 F.3d 518
Accordingly, because the Act does not grant to the Commission the authority to modify section 103(k) orders and the plain language of section 105(b)(2) states that the Commission may only grant temporary relief from those parts of a section 103(k) order that have been modified or terminated, I would deny the petition for review in total.
John D. Keller, AUSA, Davenport, IA, for Appellee.
Before WOLLMAN and COLLOTON, Circuit Judges, and HICKEY,1 District Judge.
HICKEY, District Judge.
Bradley McCorkle appeals his conviction for theft of government funds, in violation of
Bradley McCorkle’s mother, Ada McCorkle, died on August 11, 2008. At the time of her death, she was receiving Social Security disability benefits totaling $1,587 per month. Unaware of Ada McCorkle’s death, the Social Security Administration (“SSA”) continued to deposit benefits into her Illinois bank account. As the executor of his mother’s estate, Bradley McCorkle had access to his mother’s bank account and continued to accept and withdraw these post-death Social Security benefits. He made no effort to inform SSA of her death. In July 2009, Ada McCorkle’s estate attorney requested a freeze of her bank account, which led the bank to discover that Social Security benefits had continued to be deposited after her death. The bank then returned the outstanding deposits to SSA and issued stop payment orders on three cashier’s checks Bradley McCorkle purchased using benefit funds. McCorkle attempted to cash one of the checks at an Illinois bank. The bank refused to cash the check, retained it, and infоrmed McCorkle that any outstanding cashier’s checks in his possession should be returned to the bank. Undeterred, McCorkle then traveled to a bank in Iowa where he successfully cashed the two remaining checks. Over the course of fourteen months following his mother’s death, McCorkle withdrew approximately $16,000 in post-death Social Security benefits from his mother’s bank account.
On August 18, 2010, a grand jury sitting in the Southern District of Iowa issued a one-count indictment against McCorkle for theft of government funds, in violation of
At trial, the government introduced the evidence of the prior applications, and SSA employees testified that when an individual applies for disability benefits on behalf of themselves or another, SSA explicitly informs them of their obligation to inform SSA of the death of a beneficiary. The witnesses also testified that McCorkle would have been provided hard copies of the reporting requiremеnts at the time of application and that the requirements were in place in 2000 when McCorkle applied for benefits on behalf of his daughter. A government witness further testified that McCorkle admitted in conversations that he knew he was not entitled to the funds. Howevеr, McCorkle testified that he believed he was entitled to receive the funds and that it was not until his mother’s estate attorney requested a freeze on her account that he learned of the SSA’s policy of ceasing payments to beneficiaries upon their death. On March 11, 2011, a jury returned a guilty verdict. On July 15, 2011, the district court sentenced McCorkle to six-months’ imprisonment with a three-year term of supervised release.
II.
A.
McCorkle first argues that the district court improperly admitted evidence of his prior applications for disability bene
McCorkle maintains that his prior applications for disability benefits should have been excluded as evidence because they are irrelevant and highly prejudicial. Specifically, he argues that the applications are irrelevant because they do not tend to prove an element of the offense for which he was convicted.
All relevant evidence is admissible, with certain exceptions.
At trial, the government submitted evidence of McCorkle’s prior applications along with witness testimony establishing that disability claimants who apply for benefits are advised of SSA policies and requirements related to the death of beneficiaries. The government maintains that this evidence tends to show that, because McCorkle had applied for Social Security benefits on several occasions, he was familiar with SSA pоlicies and knew that he was not entitled to benefits paid after his mother’s death. We agree. This evidence directly refutes McCorkle’s position that he lacked knowledge of the illegality of his actions and did not intend to steal government property. For this rеason, we find the evidence of prior applications to be highly relevant.
McCorkle further argues that even if evidence of his prior applications for benefits was relevant, the district court should have excluded it because it was highly prejudicial and served as impermissible propensity evidence. Specifically, McCorkle asserts that admitting the applications allowed the jury to infer that his unsuccessful past attempts to acquire disability benefits made it more likely that he would unlawfully withdraw payments mаde to his deceased mother. We disagree.
Federal Rule of Evidence 403 grants a district court the authority to exclude relevant evidence only “if its probative value is substantially outweighed by a danger of ... unfair prejudice[.]”
B.
Next, McCorkle argues for the first time on appeal that the trial venue was improper. McCorkle contends that, because he initially withdrew the disability funds and obtained the cashier’s checks from his mother’s bank in Illinois, venue in the Southern District of Iowa was improper. The government maintains that venue in Iowa was proper beсause the crime was continued and completed in Iowa where McCorkle cashed the two remaining cashier’s checks in his possession. The government also argues, in the alternative, that McCorkle has waived his right to object to venue because he failed to object on this basis before trial, during trial, or at the conclusion of trial.
McCorkle concedes that he did not move for a change of venue or object to venue before, during, or at the conclusion of trial. However, he maintains that he did not waive his right to object to venue but merely forfeited it. The distinction is crucial. Waiver is a defendant’s “intentional relinquishment or abandonment of a known right[,]” while forfeiture is a “failure to make the timely assertion of a right.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In the context of appellate rеview, forfeited claims are entitled to plain-error review, while waived claims are entirely unreviewable. United States v. Booker, 576 F.3d 506, 511 (8th Cir.2009).
In this case, we find no evidence in the record that McCorkle expressly or intentionally abandoned his right to object to venue. Rather, it apрears that his failure to raise such an objection was inadvertent. This type of unintentional oversight is more consistent with forfeiture. Accordingly, we will review McCorkle’s venue challenge for plain error. “To obtain relief under a plain-error standard of reviеw, the party seeking relief must show that there was an error, the error is clear or obvious under current law, the error affected the party’s substantial rights, and the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Poitra, 648 F.3d 884, 887 (8th Cir.2011).
Under
While the initial withdrawals of Social Security funds from his mother’s account were effected at the time each cashier’s check was issued, this fact does not suppоrt the conclusion that McCorkle’s crime did not continue into Iowa. Conviction under
III.
The judgment of the district court is affirmed.
SUSAN O. HICKEY
UNITED STATES DISTRICT JUDGE