UNITED STATES of America, Plaintiff-Appellee, v. Daniel Estes CROOK, Defendant-Appellant.
No. 11-30401.
United States Court of Appeals, Fifth Circuit.
June 20, 2012.
Robin Samson Mccoy, U.S. Attorney‘s Office, Shreveport, LA, for Plaintiff-Appellee.
Before JONES, Chief Judge, and OWEN and HIGGINSON, Circuit Judges.
PER CURIAM:*
Daniel Crook appeals his convictions on eight counts arising from his involvement in obtaining benefits from emergency programs enacted in response to a severe drought in northern Louisiana in 1998. We affirm.
I
Crook, an emergency-room physician, was involved with two farming entities, Crook Farm Partnership (CFP) and Crook Planting Company (CPC), which participated in federal relief programs implemented in response to a severe drought that took place in northern Louisiana in 1998. Crook held a power of attorney for CFP, and he was a partner in CPC. Crook submitted an application for payments from the Crop Loss Disaster Assistance Program (CLDAP) on behalf of CFP. The CLDAP was enacted by Congress to provide direct payments to farmers affected by the drought. The application that Crook submitted indicated that CFP harvested 29,106.94 hundredweight of rice during the 1998 crop year. (One hundredweight is the equivalent of 100 pounds.) In addition to the CLDAP direct payments, the federal government made emergency loans available to drought-stricken farmers. In obtaining an emer-
Based on the incorrect figures in the CLDAP application and the Certification of Disaster Losses, Crook was charged with two counts of making a false statement to the FSA in violation of
II
The first issue Crook raises is that his convictions under
We review de novo a constitutional challenge to a federal statute.3 The Ex Post Facto Clause forbids Congress from enacting any law that “imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed; or changes the rules of evidence by which
The Government argues that the reorganization and statutory amendment were changes in form and structure, not substance. Its position is that Crook‘s acts were prohibited before and after the reorganization and statutory amendment.
We conclude that there was no Ex Post Facto Clause violation. In Blum v. United States, we held that a conviction under a statute “amended solely for the purpose of reflecting [a] change of name” did not violate the Ex Post Facto Clause.5 In Blum, at the time of the illegal acts the statute referenced the United States Housing Authority, but because of a previous agency name change, the agency with which the defendant had transacted was known as the Public Housing Administration.6 Not until after the defendant‘s acts was the statute amended to reflect the agency name change.7 We rejected the Ex Post Facto Clause challenge because the defendant “was not prejudiced” by the amendment; the amendment was “one of form only.”8
The October 1999 amendment of
III
Next, Crook argues that the district court erred in admitting certain evidence pursuant to
The district court permitted the Government to introduce evidence that CFP pledged a security interest in a Cessna aircraft and cotton gin owned by Crook, personally, rather than CFP, to secure a FSA loan to CFP. There was evidence that it was not disclosed to the FSA that Crook, not CFP, owned these assets. As a consequence, the FSA did not conduct a search of lien records on these assets in Crook‘s name. There was also evidence that Crook sold the aircraft and cotton gin without notifying the FSA. Without these assets as security for the FSA loans, the loans were under-collateralized.
Crook was not indicted on charges involving this conduct. On appeal, Crook challenges the Rule 404(b) admission of this evidence on two grounds: (1) the evidence was irrelevant to the charges against him because the Government could not establish that the execution of the security agreement was an act on his part, and (2) alternatively, the evidence‘s probative value was substantially outweighed by its undue prejudice.
In admitting the evidence, the district court found that it was relevant to Crook‘s intent or lack of mistake in light of his defense strategy. The court rejected the irrelevancy argument raised on appeal because the Government intended to prove that Crook was involved. As for undue prejudice, the district court determined that it did not substantially outweigh the evidence‘s probative value.
The district court acted within its discretion in admitting the evidence on the condition that proof would be introduced later to show Crook‘s involvement.17 Furthermore, the evidence introduced at trial shows that it was not an abuse of discretion to conclude that there was sufficient proof to support a finding that Crook was involved.18 Colby Flint, an FSA employee, testified that either Crook or his employee, Sivils, added the airplane and cotton gin as collateral. Flint testified that, based on his experience, if Sivils added the items he would not have done so without Crook‘s approval. Sivils testified that, while he did not remember doing so, he would not have added Crook‘s personal property without Crook‘s consent. Finally, Paula Davis, a bank employee, testified that Crook told her that the FSA made him pledge his airplane to obtain the loans.
The district court also acted within its discretion in concluding, in accordance with Beechum‘s first step, that the extrinsic evidence was relevant to Crook‘s intent or lack of mistake. Crook‘s defense was
Finally, in accordance with Beechum‘s second step, while admission of this evidence posed some risk of undue prejudice, in light of Crook‘s defense, the district court‘s conclusion that the undue prejudice did not substantially outweigh the evidence‘s probative value was not an abuse of discretion. Furthermore, the district court gave a limiting instruction that informed the jury that the extrinsic evidence was not to be used to decide whether Crook committed the charged acts; it was only to be considered in determining if he had the required mens rea. This instruction, which we presume the jury followed,19 reduced the likelihood of undue prejudice and further supports the district court‘s decision to admit the evidence.
IV
Crook claims that the district court abused its discretion in excluding the testimony of his expert witness, citing only United States v. Tucker in support of his argument.20 In Tucker, the exclusion rested on
When the exclusion of an expert due to discovery violations is challenged as an abuse of discretion on non-constitutional grounds, the district court‘s abuse of discretion must be clear.23 Here, the district court excluded the testimony of Crook‘s expert, Gary Brannon, for failure to comply with
Additionally, although Crook argues that the Government would not have been prejudiced if Brannon had been allowed to testify, again we are not presented with sufficient justification to call the district court‘s conclusion to the contrary into question. Prior to trial, Crook did provide the Government with Brannon‘s résumé and an e-mail indicating that Brannon might be called as an expert, but we cannot say that it was an abuse of discretion for the district court to conclude that this information was insufficient to put the Government on notice that it needed to obtain its own expert. Although the résumé indicated Brannon‘s banking experience and the e-mail referred to him as a “banking guy,” neither the résumé nor the e-mail provided insight into the exact nature of his intended testimony.
Rule 16(d)(2)(C) provides that a court may prohibit a party from introducing undisclosed evidence,25 and the district court concluded that, based on the circumstances, exclusion of the defense witness was the only appropriate remedy. As discussed above, the district court‘s conclusion that the Government would have been prejudiced if Crook were allowed to call Brannon as an expert witness was not an abuse of discretion, and on appeal, Crook has not argued that an alternative remedy would have been sufficient.
Crook argues that his counsel‘s failure to comply with Rule 16 constitutes ineffective assistance of counsel. Crook has forfeited this claim because of inadequate briefing.26 Neither Crook‘s initial appellate brief nor his reply brief included any legal argument or cited any authority in support of this claim.
V
Crook also argues that the district court erred in refusing to give his proposed jury instruction. We review for abuse of discretion, subject to a harmless-error analysis:27
The district court retains substantial latitude in formulating its jury charge, and we will reverse only if the requested instruction is substantially correct; was not substantially covered in the charge as a whole; and if the omission of the requested instruction seriously impaired the defendant‘s ability to present a given defense.28
The district court did not abuse its discretion in refusing to give Crook‘s proposed jury instruction because the refusal to give the instruction did not seriously impair Crook‘s ability to present his defense to counts three through eight. These counts charged Crook with violating
The instructions that the district court did give to the jury contained the following concerning good faith:
Good faith is a complete defense to the charges in the indictment, since good faith on the part of the Defendant is inconsistent with intent to defraud, which is an essential part of the charges. . . .
With respect to each of the counts charging fraud, if the Defendant believed in good faith that he was acting properly, even if he was mistaken in his belief, and even if others were injured by his conduct, you cannot convict him of the specific charge being considered.
These instructions gave the jury a vehicle through which it could consider Crook‘s defense. If the jury believed that Crook paid the proceeds to the bank because he believed that he was authorized to do so, it could have found that he “believed in good faith that he was acting properly” and, accordingly, that he had a “complete defense.” In fact, these instructions permitted the jury to accept Crook‘s defense even if the law was not as he believed it to be as long as the jury found that Crook in good faith believed the law was as he believed it to be. Because Crook‘s ability to present his defense was not seriously impaired, the refusal to give his proposed jury instruction was not an abuse of discretion.
VI
Another of Crook‘s claims is that his Sixth Amendment right to compulsory process was violated by the Government. We review Crook‘s compulsory-process claim de novo, subject to harmless-error analysis.29 The basis of Crook‘s compulso-
ry-process claim is his ultimate inability to call a bank officer, Tom Casey, who had dealt with Crook regarding his loans. Crook asserts that he was unable to locate Casey prior to trial. The Government, however, was able to locate Casey. It subpoenaed him and arranged for him to fly to Monroe, Louisiana, from Arizona in order to debrief him. Crook asserts that when his counsel learned of this meeting, he informed the Government that he wanted to call Casey as a witness but had been unable to locate him. On the day that Casey was in Monroe, Crook‘s counsel became ill, and the trial was continued. When the trial resumed, Crook‘s counsel learned that the Government would not be calling Casey and that he had been allowed to return to Arizona. At that point, Crook‘s counsel requested, and the Government provided, Casey‘s contact information, but attempts to serve him were unsuccessful.
The Government asserts that it never guaranteed that Casey would testify and that Crook never asked that Casey be kept in Monroe until Crook could speak with him. Additionally, the Government asserts that Crook never requested that the Government facilitate service of Crook‘s subpoena on Casey, never requested a continuance when he learned that Casey had returned to Arizona, and never sought the court‘s assistance in having Casey subpoenaed. All that was requested was Casey‘s contact information, which was promptly provided.
The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right “to have compulsory process for obtaining witnesses in his favor.”30 “This right proscribes ‘the government‘s making a witness unavailable. . . .‘”31 When the Government makes a witness unavailable, the defendant “must at least make some plausible showing of how [the witness‘s] testimony would have been both material and favorable to his defense.”32
Here, the Government did not make Casey unavailable, and therefore the Government‘s conduct did not rise to the level of a constitutional violation.33 The Government simply permitted a witness whom it had subpoenaed to return home after it was determined that his testimony would not be required at trial. Although Crook asserts that his counsel informed the Government that he intended to call Casey as a witness and had been unable to locate him, Crook does not assert that he asked the Government to keep Casey in Monroe for his use at trial. Additionally, Crook never asked for help from the Government or the district court in obtaining Casey‘s presence. What the record shows is that the Government was fully cooperative when Crook actually asked for its assistance; Casey‘s contact information was provided promptly when it was first requested. The fact that Crook‘s attempts at service were unsuccessful is not attributable to the Government.
The next claim of error raised by Crook concerns the district court‘s exclusion of bank documents, which Crook sought to offer into evidence. We review the district court‘s evidentiary rulings for abuse of discretion, subject to harmless-error analysis.34 “A trial court abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment of the evidence.”35 An evidentiary ruling is reversible error only if it affects the defendant‘s substantial rights.36 “An error affects substantial rights only if it affected the outcome of the district court‘s proceedings.”37
Crook argues that the district court erroneously excluded two bank documents, which he claims reveal that the bank forgot about the assignment of the equipment to the FSA, that the bank thought, at one time, that it had the first lien on the equipment, and that Crook believed that the bank had the first lien on the equipment. At trial, the Government objected on the grounds that Crook had not established that the documents were admissible under the business-record exception to the hearsay rule, the documents contained inadmissible third-party hearsay, and the information in the documents was irrelevant. The district court sustained the Government‘s objection, concluding that the documents were irrelevant because the bank‘s state of mind was irrelevant. On appeal, the Government renews the arguments it made below and argues that Crook was not harmed by exclusion of the evidence.
Although the district court based its exclusionary ruling on a clearly erroneous assessment of the evidence, the error was harmless and did not affect Crook‘s substantial rights. While the district court‘s ruling that evidence of the bank‘s state of mind was irrelevant was not an abuse of discretion, the documents also included statements indicating that Crook believed the bank had the first lien position. These statements are relevant because they tend to make it less probable that Crook acted with the intent to defraud;38 Crook‘s defense to counts three through eight was that he lacked the intent to defraud because he acted in good-faith belief that it was within his rights to pay the proceeds from the equipment sales to the bank because he believed the bank had the first lien position.
A closer call is whether this error was harmless. On balance, we conclude that exclusion of the documents was harmless because they would have been cumulative of other evidence that was introduced to show that Crook thought the bank had the first lien position.39 The other evidence that was introduced included testimony from Crook‘s farm manager, Givens, that Crook had told him that the bank had a first lien position, and the FSA had a second lien position, Crook‘s own testimony that he believed the bank had the first lien position and a November 2003 letter
VIII
Lastly, Crook argues that insufficient evidence was admitted at trial to support his convictions. On appeal, “review of the sufficiency of the evidence is ‘highly deferential to the verdict.‘”40 “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”41 “The evidence is viewed in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences made by the trier of fact which tend to support the verdict.”42 “We must ensure that our inquiry is ‘limited to whether the jury‘s verdict was reasonable, not whether we believe it to be correct.‘”43 “Finally, ‘[i]t is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt,’ and any conflict in the evidence must be resolved in favor of the jury‘s verdict.”44
A
In light of the standard of review, a rational jury could have found the essential elements of counts one and two beyond a reasonable doubt. Counts one and two allege that Crook “knowingly made a material false statement or report for the purpose of influencing the action of the Secretary of Agriculture, acting through the [FSA], the successor to the [FHA],” in violation of
The following evidence supporting Crook‘s conviction on count one was admitted at trial: (1) the CLDAP application indicating 29,106.94 hundredweight of rice production for CFP, which was signed by Crook; (2) a contract with Morehouse Rice & Grain, LLC (Morehouse) for the sale of 45,000 hundredweight of rice, which was signed by Crook on behalf of CPC; (3) the testimony of Terrell Hawkins, the operator of Morehouse at the time in question, along with exhibits, indicating that CFP actually satisfied the Morehouse contract and was paid $345,134.76 for doing so; (4) Hawkins‘s testimony that Crook, along with his father, picked up the check for $345,134.76; (5) the testimony of Sivils that the 45,000 hundredweight of rice was not included in the numbers on the documents; (6) Exhibit 1029, which reflects all deliveries to Morehouse; and (7) Exhibit 2,
A rational jury could have found that the false-statement-or-report element of
Crook argues that it would have been impossible for him to have picked up the check from Hawkins in Mer Rouge, Louisiana, because a hospital log and his testimony indicated that he was working the 7:00 AM to 7:00 PM shift in Shreveport on that day, but a rational jury could have concluded from other evidence that Crook knew that 45,000 hundredweight of rice had been sold to Morehouse.
Crook signed the Morehouse contract, and the 45,000 hundredweight of rice for the contract accounted for 51% of the combined total production for CFP and CPC. Based on Crook‘s involvement with the contract and the significant amount of rice involved, a rational jury could have found that Crook would have known that the numbers he provided were false. This evidence supports a rational jury‘s finding that the knowledge element was proven beyond a reasonable doubt. Crook‘s argument that he did not act knowingly because he merely relied upon numbers provided by Sivils also fails because of this evidence that he knew the numbers were false.
Crook asserts that it was not possible that all of the 45,000 hundredweight of unreported rice delivered to Morehouse came from CFP acreage. First, he argues that the Government‘s alleged production totals result in an impossible rate of production for CFP when compared to CPC because all of the CFP acreage experienced disastrous conditions while the majority of the CPC acreage, which was in a different parish, did not. Second, he argues that, if the correct production total is used, the number on the CLDAP application is not far off and the rate on the Certification of Disaster Losses actually over-reports CFP‘s production. These arguments were before the jury at trial, it was the jury‘s obligation to resolve questions of fact, and on appeal, we are highly deferential to the jury‘s verdict.45 The jury could have resolved the actual CFP production totals in several ways—the jury could have accepted the Morehouse records on their face; the jury could have determined that, of the rice indicated as coming from CFP in the Morehouse rec-
B
We also conclude that a rational jury could have found the essential elements of counts three through eight beyond a reasonable doubt. Counts three through eight—involving
with the intent to defraud the United States Secretary of Agriculture, acting through the [FSA], did knowingly conceal, remove, dispose of and convert to his own use or to that of another property in excess of $1,000, mortgaged or pledged . . . to the United States Secretary of Agriculture, acting through the [FSA].
Each count involves a separate piece of equipment. On appeal, both Crook and the Government agree that the only issue at trial was whether Crook acted with the requisite intent to defraud.
Crook‘s defense at trial was that he was acting within his rights to sell the equipment and give the proceeds to the bank because he thought the bank had the first lien position while the FSA had a second lien position. He claims that he was never informed that the bank assigned its first lien position to the FSA. On appeal, he argues that his convictions on counts three through eight should be overturned because the Government presented no evidence at trial to prove that he knew the FSA had the first lien position.
In concluding that there was sufficient evidence admitted at trial to support Crook‘s convictions on counts three through eight, we again emphasize the standard of review governing this issue on appeal; our review must be highly deferential to the verdict and we must view the evidence in the light most favorable to the verdict, accepting all credibility choices and reasonable inferences that tend to support the verdict.46 We do not judge whether the jury‘s verdict was correct, only whether it was reasonable.47
Although the Government‘s evidence of intent was circumstantial, we cannot say that it was insufficient. First, the jury was presented security agreements, signed by Crook, which did not list the bank as a prior lienholder, and a rational jury could have viewed this evidence as indicating that Crook knew the FSA would be the only secured party after the emergency loan was used to pay the bank. Second, when Crook sold the equipment he did not indicate that the FSA had a second lien, and he did not notify the FSA of the sales. Crook‘s defense was not that he believed the FSA had no lien when he sold the equipment, instead he claimed that he believed he was entitled to sell the equipment and tender the proceeds to the bank
Additionally, a rational jury could have viewed Crook‘s actions after the equipment was sold as an indication that he never in good faith believed that he had the right to sell the equipment and give all the proceeds to the bank as he claimed. After the equipment was sold, Crook thwarted the FSA‘s efforts to inspect the equipment by failing to respond to letters and calls from Thurman and by denying his farm manager the authority to conduct a full inspection with the FSA. A rational jury could have concluded that someone who believed in good faith that he had the right to sell the equipment would have simply told the FSA that he no longer possessed the equipment. Accordingly, we also will not disturb Crook‘s convictions on counts three through eight.
*
*
*
For the foregoing reasons, we AFFIRM Crook‘s convictions on all counts.