UNITED STATES OF AMERICA, Plaintiff - Appellee, v. BUCK LEON HAMMERS, Defendant - Appellant.
No. 18-7051
United States Court of Appeals for the Tenth Circuit
November 12, 2019
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
BUCK LEON HAMMERS, Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA (D.C. No. 6:17-CR-00033-RAW-1)
Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Defendant-Appellant.
Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Robert A. Wallace, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.
BALDOCK, Circuit Judge.
Defendant-Appellant Buck Leon Hammers used to be the Superintendent of the Grant-Goodland Public School District in Grant, Oklahoma. That is, until he was charged with conspiring with his secretary to commit bank fraud and embezzle federal
On appeal, Defendant asserts: (1) the district court erred in excluding Ms. Keeling‘s suicide note; (2) the Government did not present sufficient evidence to obtain a conviction; (3) the Government committed prosecutorial misconduct; and (4) the district court committed procedural error at sentencing. Exercising jurisdiction under
I.
In August 2001, Defendant became the Superintendent of Grant Schools. Eight years later, Grant Schools consolidated with the Goodland School District, creating the Grant-Goodland Public School District (“Grant-Goodland“). Beginning in 2011, the auditing firm for Grant-Goodland noticed deficiencies in Grant-Goodland‘s invoicing process. Although the firm noted the deficiencies in Grant-Goodland‘s audit and made recommendations for improvement, the deficiencies persisted through subsequent audits in 2012, 2013, and 2014.
By 2014, the continued deficiencies raised more serious concerns as auditors began to suspect fraud at Grant-Goodland. Initially, the auditors were concerned with fourteen large purchase orders totaling $386,211. The auditors were troubled by the fact that the purchase orders did not have “actual original invoices with letterhead and normal business information.” In light of their concerns, the auditors examined all checks issued to the vendors identified in the fourteen large transactions. The auditors determined the checks to these vendors were written as a group together, each month, on the same date. Each of the checks was endorsed by both the vendor, and then, a school official. The checks were cashed within minutes of each other, at the same bank, on the same day they were issued. Because many of these vendors were located out of town, the auditors found it unlikely the checks could have been issued, mailed, and cashed in such a short amount of time. Having validated their suspicions, the auditors notified the United States Department of Education Office of Inspector General Investigation Services (“OIG“), which initiated the federal investigation in this case.
On January 28, 2016, agents from the FBI and the OIG executed a search warrant at Grant-Goodland‘s administrative office and seized 36 boxes of documents as well as electronic files. Sometime thereafter, Ms. Keeling informed Jimmie Sue Miller—who was her aunt and the school board treasurer—she intended to tell authorities she “did it.” On February 1, 2016, the Grant-Goodland school board suspended Defendant and Ms. Keeling for their alleged roles in the scheme to defraud the district by
Before taking her own life, Ms. Keeling left four suicide notes laying on a bible—three to her family and one “to whom it may concern” at Grant-Goodland. The letter to whom it may concern at Grant-Goodland read as follows: “I Pam Keeling take full responsibility for everything at Grant School. No vendor nor Mr. Hammers had anything to do with what happened. I am truly sorry and pray for forgiveness.”
II.
Prior to trial, the Government filed a motion in limine to exclude the suicide note from evidence, arguing the note is inadmissible hearsay. In response, Defendant argued the note qualifies as a statement against interest and is also admissible under the residual exception to the hearsay rule. See
In making its decision, the district court reasoned the suicide note was not a statement against interest because “penal interest is of no interest—is of no moment to a dead man.” The court further held the note was not “corroborated by circumstances clearly indicating its trustworthiness.” Having determined the note was not corroborated by circumstances clearly indicating its trustworthiness, the district court also held the note could not be admitted under the residual exception.
Despite its decision to exclude the note, the district court permitted defense counsel to question Ms. Keeling‘s aunt, Jimmie Sue Miller, regarding Ms. Keeling‘s confession that she “did it.” The district court admitted the confession pursuant to the statement against interest exception because there were corroborating circumstances with respect to Ms. Keeling‘s statement to her aunt, in contrast to the suicide letter. Specifically, the district court found Ms. Keeling‘s statement that she “did it” was corroborated by the Government‘s evidence, which was “very much based upon Ms. Keeling‘s involvement.” Although defense counsel originally intended to call Ms. Miller to testify regarding Ms. Keeling‘s confession, counsel ultimately determined calling Ms. Miller would not be in Defendant‘s best interest.
After the Government rested its case, Defendant moved for a judgment of acquittal on all counts, which the district court denied. Subsequently, Defendant testified in his own defense. At the close of all evidence, Defendant renewed his motion. The district court denied the motion on the same grounds finding, in the light most favorable to the Government, a rational trier of fact could find every element of the crimes charged beyond a reasonable doubt. After nearly seven hours of deliberation, the jury returned a guilty verdict on counts one and two, charging conspiracy to commit bank fraud and conspiracy to embezzle federal program funds. The jury acquitted Defendant on counts three through nine, alleging bank fraud and embezzlement.
Following the trial, the United States Probation Office prepared a presentence report (“PSR“). In the final PSR, the United States Probation Office recommended the
The district court also considered Defendant‘s motion for a downward variance and the Government‘s motion for an upward departure at sentencing. After consideration, the court granted the Government‘s motion in part and imposed a two-level upward departure. Based on that departure, the district court calculated an adjusted guideline range of 87 to 108 months. Ultimately, the district court imposed a sentence at the high end of the guideline range, sentencing Defendant to 108 months on both counts 1 and 2 to run concurrently. The district court also imposed a three-year term of supervised release on each count to run concurrently.
III.
Defendant raises four issues on appeal. First, he argues the district court erred in excluding Ms. Keeling‘s suicide note. Next, he maintains the Government did not present sufficient evidence to obtain a conviction. Third, he alleges the Government committed prosecutorial misconduct. Finally, he contends the district court committed procedural error at sentencing. We address each issue in turn.
A.
First, Defendant argues the district court erred in excluding Ms. Keeling‘s suicide note at trial. Defendant further argues the exclusion of the note violated his constitutional right to present a defense. We review the district court‘s evidentiary
1.
Turning first to whether the district court abused its discretion in excluding the suicide note, Defendant argues the district court should have admitted the suicide note as a statement against interest pursuant to
Under
In this case, only the portions of the suicide note specifically inculpating Ms. Keeling are eligible for analysis under
Undertaking such analysis here,
To determine whether a reasonable person in the declarant‘s position would not have made the statement unless she believed it to be true, courts consider “the statement in context and the circumstances under which it was made.” United States v. Lozado, 776 F.3d 1119, 1125 (10th Cir. 2015). If evidence of the declarant‘s state of mind is available, and the declarant subjectively believed the statement would not expose her to criminal liability, it is not a statement against interest. Id. at 1128.
The district court found the statement was not against Ms. Keeling‘s penal interest because “penal interest . . . [is] of no moment to a dead man.” See United States v. Lemonakis, 485 F.2d 941, 956 n.24 (D.C. Cir. 1973). We conclude the district court did not abuse its discretion in so holding. Ms. Keeling appears to have written the note
Even assuming Ms. Keeling‘s inculpatory statement was sufficiently against her penal interest to meet the requirements of
Here, the district court questioned whether Ms. Keeling was in a rational state of mind shortly before committing suicide.1 The district court also noted Ms. Keeling had been dishonest and untrustworthy in committing the charged fraud, and therefore,
Even if Ms. Keeling‘s statement was not admissible under
In this case, the district court decided to exclude the suicide note under the residual exception because the note did not offer guarantees of trustworthiness. We do not find the district court abused its discretion in so holding. As already discussed, Ms. Keeling and Defendant had a close relationship, which potentially motivated Ms.
Nevertheless, Defendant argues a note, voluntarily written, in close proximity to one‘s death has an “indicia of reliability” because “the sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of oath.” See Miller v. Stovall, 742 F.3d 642, 650 (6th Cir. 2014) (citing Idaho v. Wright, 497 U.S. 805, 820 (1990)). While Defendant‘s reasoning may be persuasive, it is not dispositive. Although reasonable minds may differ, the district court‘s factual findings were supported by the record and its legal conclusions were not contrary to the established law. Therefore, we find the district court did not abuse its discretion in declining to admit the suicide note under the residual exception.
2.
Next, we turn to Defendant‘s second argument—that is, that the exclusion of the note violated his right to present a defense. While a defendant has a Fifth and Sixth Amendment right to present a defense, that right is not absolute. Dowlin, 408 F.3d at 659. “The right ‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.‘” Rock v. Arkansas, 483 U.S. 44, 55 (1987)
To demonstrate his right to present a defense was violated, Defendant must show: (1) the district court abused its discretion in excluding the evidence at issue; and (2) the excluded evidence was “of such an exculpatory nature that its exclusion affected the trial‘s outcome.” United States v. Tapaha, 891 F.3d 900, 905 (10th Cir. 2018) (citing Dowlin, 408 F.3d at 659). Because we find the district court did not abuse its discretion in excluding the note, we need not address whether the excluded evidence was of such an exculpatory nature that its exclusion affected the outcome of the trial. In either case, the district court did not violate Defendant‘s right to present a defense.
B.
Next, Defendant argues the Government presented insufficient evidence to convict him of conspiracy to commit bank fraud in violation of
To prove conspiracy to embezzle federal program funds under
Here, resisting Defendant‘s suggestion that we weigh conflicting testimony or evaluate the credibility of the witnesses, we conclude the Government presented sufficient evidence to support a guilty verdict on both conspiracy counts. This evidence is as follows. Defendant is well-educated and trained in school financial administration. Along with being the superintendent, Defendant was the purchasing
Although Grant-Goodland‘s auditors did not immediately realize the school was producing fraudulent purchase orders, the auditors did identify specific problems with Grant-Goodland‘s purchasing process starting in 2011. The auditors informed Defendant of those deficiencies, and in fact, Defendant was listed as the contact person on Grant-Goodland‘s corrective action plan. Despite Defendant‘s training in school financial administration and knowledge of the deficiencies in the school‘s purchasing process, the problems identified in 2011 persisted through the 2014 fiscal year.
In that time, Grant-Goodland produced hundreds of fraudulent checks based on the fraudulent purchase orders—purchase orders that were allegedly, and should have been, approved by Defendant. Despite being written to primarily out-of-town vendors, the fraudulent checks were cashed at local banks, and many of the checks bore Defendant‘s signature as the last endorser. While Defendant contests the endorsements reflect his genuine signature, the bank vice president testified, per bank policy, the checks should not have been cashed unless Defendant, as the last endorser, was
While Defendant testified in his own defense and urged Ms. Keeling acted alone, the jury could have found his testimony less than credible when he, for example, disclaimed knowledge of $28,000 worth of fraudulent checks approved at the same school board meeting where he recommended laying off two teachers and combining classes due to negative balances. A reasonable jury could have rejected Defendant‘s explanation that he trusted Ms. Keeling completely and overlooked the hundreds of thousands of dollars spent on non-existent school improvements. Based on all the evidence, a reasonable juror could infer Defendant: (1) specifically agreed to commit bank fraud and embezzle federal program funds; and (2) acted in furtherance of that agreement. Consequently, Defendant‘s conviction must stand.
C.
Third, Defendant argues he was denied due process due to prosecutorial misconduct. Specifically, Defendant identifies six statements made by the Government which he alleges constitute reversible prosecutorial misconduct.
A prosecutor‘s misconduct may render a trial “so fundamentally unfair as to
Turning to the first prong, “courts have struggled to determine when a prosecutor‘s statements are improper.” Id. While any improper comments should be examined in context, courts have recognized prosecutorial comments may be improper when they refer to matters not in the evidence or distort the record by misstating the evidence. Id. at 824-25. Once the court finds the prosecutor made an improper comment, the court then “assesses whether the comment affected the jury‘s verdict.” Id. at 825. To determine whether comments affected the jury‘s verdict, courts consider the trial in its entirety, including “the extent of the misconduct, and the role of the misconduct within the case,” as well as “[t]he prevalence and degree of improper statements.” Id. at 826 (citing United States v. Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996)). “Absent prejudice, a prosecutor‘s improper statements alone will not require a new trial.” Christy, 916 F.3d at 826 (citing United States v. Sorensen, 801 F.3d 1217, 1242-43 (10th Cir. 2015)).
Defendant objected to each of the six alleged improper statements, and the district court overruled each objection. Therefore, we conduct a de novo review for
1.
Here, Defendant first argues the Government misstated the evidence during cross examination of Defendant when the prosecutor stated:
- Corey Dawson “recognized your signature” on the forged checks;
- “Your signature appears on all of those checks according to [Corey Dawson]“;
- Sandy Storie “has seen your signature all over the place and she says that‘s your signature on that check“; and
- Sandy Storie “said that looked like your signature to her,” to which Defendant responded, “it‘s not my signature,” and the prosecutor stated, “that‘s not what she said.”
In each of these statements, Defendant argues the Government implied Corey Dawson and Sandy Storie knew it was Defendant‘s signature on the checks, when in fact they testified it appeared to be Defendant‘s signature. Both Corey Dawson and Sandy Storie testified they could not say with certainty Defendant signed the checks at issue. Nevertheless, we do not find the Government misstated the evidence in this cross examination. The Government need not qualify each of the above statements with “alleged” or “purported” signature.
Moreover, even if the Government‘s cross examination slightly misconstrued the witnesses’ testimony, it is inconceivable to suggest these misstatements influenced the jury‘s verdict. These minor misstatements occurred during the cross examination
2.
Next, Defendant argues the Government misstated the evidence when the prosecutor stated Nancy Hughes “testified that the MAS system is Cloud based, which means you could reach it from any computer.” Defendant argues the Government‘s statement mischaracterized the evidence because Ms. Hughes testified the MAS system had only been Cloud-based for “the last couple years.” Because Defendant was not working at Grant-Goodland in the last couple years, Defendant argues the Government‘s statement is a material misstatement of the evidence.
Although we find the Government‘s statement was misleading to the extent that no Cloud-based MAS program existed during Defendant‘s tenure with Grant-Goodland, we also conclude Defendant suffered no prejudice by the mischaracterization. In the course of a three-and-a-half-day trial, this single comment does not affect the overwhelming weight of the evidence. Moreover, when defense counsel objected to the misstatement he also provided his characterization of the evidence—that is, defense counsel stated in front of the jury that Ms. Hughes testified
3.
Finally, Defendant argues the Government‘s statements during closing arguments were improper when the prosecutor stated:
Did [Defendant] leave at noon? Yep. He took a check, left at noon, went to the bank and cashed it and went to the ranch. Look at the time stamps on the checks. They are not all in the afternoon, but most of them are. He told you what he did. Left the school with a check, went to the bank and cashed it.
Defendant argues these statements reflect the Government‘s opinion and are not supported by evidence in the record.
While we recognize the Government is entitled to “a reasonable amount of latitude in drawing inferences from the evidence” during closing arguments, this latitude “does not extend to improper suggestions, insinuations or assertions.” United States v. Manriquez Arbizo, 833 F.2d 244, 247 (10th Cir. 1987). In this case, we need not decide whether the Government‘s statement was improper because, either way, the
D.
Finally, Defendant argues the district court committed procedural error in sentencing. Specifically, Defendant argues the district court erred in applying: (1) the obstruction-of-justice enhancement; and (2) the disruption-of-governmental-function upward departure. When a defendant challenges the district court‘s application of the sentencing guidelines, “we review legal questions de novo and factual findings for clear error, giving due deference to the district court‘s application of the guidelines to the facts.” United States v. Mollner, 643 F.3d 713, 714 (10th Cir. 2011) (citing United States v. Munoz-Tello, 531 F.3d 1174, 1181 (10th Cir. 2008)).
1.
First, Defendant argues the district court erred in applying the obstruction-of-justice enhancement based on his alleged perjury at trial. Under the obstruction-of-justice enhancement, if a defendant willfully obstructs or impedes the administration of justice with respect to the prosecution of the charged offense, the district court must increase the offense level by two levels.
Here, the district court explained its decision to apply the obstruction-of-justice enhancement as follows:
The defendant‘s testimony regarding the presence of his signature on numerous checks used to carry out the fraud conspiracies in this case was directly contradictory to testimony of other witnesses and the evidence presented in this case. His denial of any involvement in the scheme to defraud Grant Public Schools was a willful attempt by the defendant to obstruct justice in this case and not a result of confusion, mistake, or faulty memory. Therefore, the Court finds by a preponderance of the evidence that the defendant was appropriately given a two-level enhancement for obstruction.
Upon the Government‘s inquiry, the district court clarified its findings and specifically stated Defendant lied with respect to: (1) his signature on the checks; (2) his receipt of embezzled funds; and (3) his blatant denial of any involvement in the scheme to defraud. The district court also indicated “it‘s pretty much the whole kit and kaboodle.” While it is not entirely clear what this last statement means, it seems to indicate the district court believed the entirety of Defendant‘s testimony was perjured.6
Nevertheless, Defendant argues no factual basis exists for the district court‘s findings. Reviewing the district court‘s factual findings for clear error, we find the record adequately supports the district court‘s determinations. While no one witness could say with 100% certainty Defendant signed the checks, numerous witnesses testified the signature appeared to be Defendant‘s based on their familiarity with Defendant‘s signature generally. While the handwriting expert‘s findings were inconclusive, the handwriting expert explained he could not make a determination because the checks were photocopies rather than original documents. With respect to receipt of embezzled funds, although the Government could not trace the proceeds to Defendant directly, a bank teller testified Defendant cashed at least some checks, and his bank account number was written on the back of a fraudulent check for $2,900.
2.
Finally, Defendant argues the district court erred in applying the disruption-of-governmental-function upward departure. Guideline section 5K2.7 provides “[i]f the defendant‘s conduct resulted in a significant disruption of a governmental function, the court may increase the sentence above the authorized guideline range to reflect the nature and extent of the disruption and the importance of the governmental function affected.”
In this case, Defendant argues disruption of a government function is inherent in the offense of conviction—embezzlement of federal program funds. Defendant cites no authority for his proposition, and although we have not directly addressed the issue, other circuits have applied the enhancement in similar cases. See United States v. Gunby, 112 F.3d 1493, 1500 (11th Cir. 1997) (applying section 5K2.7 to convictions for tax fraud); United States v. Khan, 53 F.3d 507, 518 (2d Cir. 1995) (applying section 5K2.7 to Medicare fraud). We are persuaded by the logic those courts applied.
Specifically, the Sentencing Commission explicitly excluded the application of section 5K2.7 to bribery and obstruction of justice offenses. If the Commission wanted to preclude the application of section 5K2.7 to embezzlement offenses, it could have done so. It did not. See Gunby, 112 F.3d at 1500. Furthermore, Defendant was
Nevertheless, Defendant argues even if application of section 5K2.7 is generally proper, the record does not support the factual basis underlying the departure in this case. Reviewing the district court‘s factual findings for clear error, we find the district court adequately supported its application of 5K2.7. The district court reasoned:
The conspiracies for which the defendant was convicted resulted in significant monetary loss to the school district. As a result, the defendant‘s actions led to state intervention by the Oklahoma State Department of Education on March 24, 2016. The State Department of Education memorandum dated June 23, 2016 specifically cites their road to intervention began due to the financial mismanagement of Grant Public Schools, which would be attributed to the actions of the defendant. Further, the order granting state intervention was based upon the district‘s failure to meet financial requirements . . . . The state‘s intervention was after the defendant‘s fraudulent conduct in this case which resulted in excess of $1 million loss to the school district from June 2010 to January 28, 2016. Therefore, based on the evidence in this matter, the defendant‘s fraudulent scheme was significant in the board‘s decision to annex Grant Goodland‘s Public Schools into the Hugo Public School System. The defendant‘s conduct did far more than simply contribute to the closing of a school. It caused the loss of employment and morale of the teachers and staff at Grant Public Schools. It damaged the local school patrons’ confidence in the function of local government. The consolidation of Grant Public Schools into the Hugo Public School system disrupted the function of the Hugo Schools and required them to accommodate additional students into its system. The nature and extent of the disruption caused by the defendant in this case was significant as it caused permanent damage to Grant Public Schools, Hugo Public Schools, and all of its teachers, students, and staff, as well as the confidence of the community in their local government functions.
***
For the reasons provided herein, Defendant‘s conviction and sentence are affirmed.