*1 e of the district judgment post-trial Th an award' of amount of “The the sound dis court is affirmed. fees rests within attorneys’ we will not disturb the court cretion of of that discretion.” clear abuse
it absent Steel, Contractors, Gen. Inc./Malco. Walton Inc., 111 Forming, F.3d Chicago v.
Inc. (8th Cir.1997); Medal v. 1376, 1385 Raffel Inc., Minnesota, 139 F.3d Kitchens
lion
Cir.1998)
(7th
(applying Illi
1142, 1146-47
law).
“a
Additionally, while there is
nois
America,
UNITED STATES
is
prevailing party
that
presumption
Appellee,
costs,”
Casey’s
v.
Gener
Bathke
entitled
(8th
Inc.,
Cir.
Stores,
64 F.3d
al
v.
also has substan
1995),
the district
WOUND, Appellant.
BAD
John
awarding costs. Greaser
discretion
tial
Corrections,
State,
145 F.3d
Dept.
No. 99-1550.
—
denied,
(8th Cir.),
U.S.
cert.
Appeals,
States Court
620,
prevailing party in excess of the
penses, and costs far
$150,000 by the district figure awarded However, ignores the Computrol
court. afforded rea Agreement that the
fact Additionally, Rule attorneys’ fees.
sonable
54(d) terms and permissive phrased discre court the grants federal generally
tion, in favor of to tax to refuse costs Fitting v.Co. party. prevailing Crawford 441-42, Gibbons, Inc., U.S.
J.T.
(1987).
2494,
107 S.Ct court characterized
The district “relatively straightforward
this case as was unduly
breach of contract case” by Computrol’s painstakingly
protracted presentation of the complicated
slow is in a better The district
evidence. Appeals as
position than the Court of litigation course of the
sess by the attor performed of work
quality Chicago Transit
neys. McNabola v.
Auth., 501, 519 are convinced
Accordingly, we its discretion
district court did abuse $150,000 Computrol it awarded
when costs, fees, expenses under
attorneys of this case.
the circumstances *2 Holmes, Atty.,
Dennis R. Asst. U.S. Pierre, SD, Seiler, argued (Randolph J. brief), Asst. Atty., U.S. on the for Appel- lee. Palmer, SD,
J. Rapid City, Crisman ar- brief), gued (Marty Jackley, J. on the Appellant. WOLLMAN,
Before Judge, Chief ROSS LOKEN, Judges. Circuit personally In October WOLLMAN, Judge. Chief Ter- supply companies, one of the created from appeals his A. Bad John ' (Territorial), which ritorial Office Products resulting offenses for various conviction legitimate busi- some engaged at least to de- in á scheme participation from *3 College through June with the ness (the College) College Lakota Oglala fraud Wound, at the Minko-Bad direction 1993. supply phony office the use of through others, Wound, Rapid two created of Bad resulting sen- the and from companies, Greenway. (Rapid) and Products Office court. We imposed the tence Territorial, unlike companies, These two convictions, vacate his affirm from their of fraud mere conduits were resentencing. sentence, for and remand and September in formations respective I. Overall, and Bad of 1992. October received personally Minko-Bad federally funded institu- a College The $174,488.92 funds fraudulently in obtained education located on post-secondary tion of companies. through their three in Ridge Reservation Pine Indian 1996, to 1990 Bad Dakota. From South 1997, co- early Bad Wound and his In associated with professionally was unraveled, and of deceit conspirators’ web In capacities. 1990 College in various on numerous violations they were indicted per- 1991, periodically Bad Wound and charged Bad Wound was federal law. for consulting work financial formed 371, § theft U.S.C. conspiracy, 18 with employment College, but had consistent 18 organization, Indian tribal from an in changed This Jan- relationship with it. funds, 1163, 18 § theft of federal U.S.C. 1992, College hired Bad when the uary of 666, transportation § of stolen U.S.C. depart- accounting manage its to 2314, money § launder- money, 18 U .S.C. n until capacity this He served in ment. U.S.C; 1956(a)(1), transacting § ing, 18 1995, pro- at time he which March activity, 18 from unlawful derived property affairs, vice-president of business moted evasion, § tax 26 U.S.C. U.S.C. departure until his that he held position a forfeiture, § 18 and criminal U.S.C. College 1996. from guilty not pleaded Bad Wound Bad asso point during Wound’s At some trial, the Following four-day a all counts. in College, he became ciation with all guilty a verdict of on jury returned initially scheme fraudulent volved counts, Bad Wound was sentenced and Knudsen, by Arlynn in 1991 hatched three years imprisonment 151 months’ vice-president affairs College’s business supervised release. scheme, 1991 to 1995. Under from Knudsen, Wound, and several other II. individuals, Minko- Margaret including challenges his first convic- Wound, out held whom Bad Wound tion, court erred arguing the district wife, supply phony formed nine be his testimony of Minko-Bad admitting gen companies, These companies. Prior to Wound at trial. erally legitimate conducted no business tes- Minko-Bad Wound’s moved to exclude only, as bank accounts billed existed spousal timony of the adverse on the basis re supplies never College . sought He also testimony privilege. through acting The College, ceived Wound out of question Knudsen, for the non-exis issued checks regarding her awareness jury’s presence deposited then supplies, which were tent whether she wished of the businesses, phony accounts of the bank mo- The denied both the assert it. conspira ultimately for the benefit trial, Bad Wound request. At tion and the College paid From 1991 to tors. it was once but objection, renewed his $2,657,032.06 conspirators to the total of Wound,.,with again denied. Minko-Bad through companies. the fraudulent reluctance, apparent then offered testimo- finding of a voluntary waiver of the testi ny defense, harmful to Bad Wound’s stat- monial privilege. We do agree. ing part illegal he was scheme First Circuit recently suggested that a opened Rapid that she had and broadly phrased consent to full discovery Greenway pursuant accounts to his di- contained within plea agreement might rection. constitute a waiver of the spousal adverse testimony privilege. See United States v. review the district court’s ad We Yerardi, (1st 1999). Cir. mission of for an abuse of dis suggestion This is consistent with our rec cretion. See United Fregoso, States v. ognition that a plea agreement that states F.3d Because in general terms the obligation defendant’s we find that Wound waived .Minko-Bad *4 to cooperate government with the can con her privilege, testimonial we affirm the stitute a waiver of the defendant’s Fifth ruling. court’s privilege Amendment against self-incrimi recognize Federal courts two dis nation. See United v. States Lawrence privileges tinct marital under Rule 501 of (8th 68, Cir.1990); 918 F.2d 72 see also the Federal Rules of Evidence: the mari (2nd Resto, 22, United States v. 74 F.3d 27 tal confidential communication privilege Cir.1996). If a broadly phrased plea and the spousal testimony adverse privi agreement effectively can waive a constitu lege. Jackson, See United v. States 939 right, tional we are satisfied it can (8th Cir.1991). 625, F.2d 627 Under the also waive an evidentiary privilege based spousal testimony adverse privilege, the purely policy considerations, on such as- privilege case, at issue an individual at Trammel, one issue here. See 445 “may compelled be neither testify nor at U.S. 100 (discussing S.Ct. 906 testifying” against foreclosed from per policy rationale underlying the adverse son whom he or she is married at the spousal testimony privilege). States, time of trial.1 Trammel v. United 40, 53, 906, 914, 445 U.S. 100 S.Ct. 63 With respect to the voluntariness (1980); Jackson, L.Ed.2d 186 see also waiver, of the we note that Minko-Bad F.2d at 627. The therefore rests represented by counsel with testifying spouse, who may waive throughout the plea negotiations and that the privilege without the consent of the plea agreement itself advised her that Trammel, spouse. defendant See 445 U.S. by entering into the agreement she would 53, 100 at S.Ct. 906. be “waiving statutory certain and constitu
Minko-Bad tional rights Wound entered into a to which she is otherwise plea agreement following her indictment entitled.” We conclude that these are sub for her involvement in the supply company stantial indicia of voluntariness. See Wal scheme. Under the terms of agree Corrections, lin v. Dep’t Minn. 153 F.3d ment, Minko-Bad pleaded guilty (8th Cir.1998); 689-90 Pilon v. Univ. charged six counts return for the Minn., (8th 710 F.2d 467-68 Cir. dismissal of remaining counts and her 1983). Accordingly, find that we Minko promise provide “complete and truthful validly waived her testimonial testimony trial, grand juries, before at and privilege, finding that is not by vitiated at other proceedings required.” as the district court’s denial of Bad Wound’s request argues agreement question that the Minko-Bad Wound out specificity lacks the necessary support jury’s presence regarding privi 1. The record is unclear any spousal privi- whether Bad Wound waived adverse legally and Minko-Bad Wound were married lege may possessed, that she have we assume under South Dakota law at the time of purposes appeal of this that she and Bad largely validity marriage because the of their legally Wound were married at the time of challenged was never at the district court trial. level. holding Because of our that Minko- $174,- companies, three loss caused v. Jack in United States Although
lege.
488.92,
considered
determin-
should be
sequestered
the witness’s
quoted
son we
under
level enhancement
finding
ing
proper
that the
testimony
upholding
2Sl.l(b)(2).
disagree.
privi
§
We
voluntarily waived
U.S.S.G.
witness had
that such
not hold
lege, we did
guidelines provide
sentencing
finding of voluntariness.
to a
is essential
“jointly undertaken
in the case of
625, 627
F.2d
See 939
responsi
activity,” a defendant is
criminal
evidence of
Here,
is non-testimonial
there
...
reasonably foreseeable acts
“all
ble for
entered
plea agreement
voluntariness —a
un
jointly
in furtherance
of others
was not
counsel—that
aid of
into with the
activity.”
U.S.S.G.
dertaken
in Jackson.
present
lB1.3(a)(l)(B). Accordingly, a defen-
sum,
court did not abuse
In
properly
dant convicted
admitting
its discretion
reasonably fore-
for all
held accountable
testimony.
Wound’s
advancing
co-conspirators
seeable acts
v. Mo-
States
conspiracy.
See United
III.
(8th Cir.1999);
lina,
his sentence.
challenges
Bad Wound also
Brown,
F.3d
States
Bad Wound to
court sentenced
The district
*5
(8th Cir.1998).
to
relevant
1008
“Factors
imprisonment,
terms of
three concurrent
the defen-
include whether
foreseeability
months—-was
longest
which-—151
the
of
co-conspirator’s
from his
benefited
dant
convictions for
Bad Wound’s
based on
he
and whether
demonstrated
activities
transacting
prop-
laundering and
money
to the con-
of commitment
substantial level
activity.2 In
illegal
from an
erty derived
Id.;
v.
also
States
see
United
spiracy.”
for
sentence
Bad Wound’s
determining
(8th Cir.1997).
Fairchild,
122 F.3d
offenses,
to Bad
court
these
the
attributed
conspir-
of
was convicted
$2,657,032.06,
represents
the
Wound
College through the
the
ing to defraud
all nine of the
by
caused
combined loss
The evi-
companies.
supply
of phony
use
Relying on this
bogus
companies.
supply
that Bad Wound
dence demonstrates
enhance-
added a six-level
figure, the court
co-
benefited,
indirectly, from his
albeit
base offense level
to
Wound’s
ment
to advance this
conspirators’ activities
2Sl.l(b)(2)(G),
§
pursuant
to U.S.S.G.
did not
Although Bad Wound
scheme.
an
for
for such
enhancement
which calls
the
directly from
gain
realize financial
involving
laundering convictions
money
control,
not
his
phony companies
under
$2,000,000. “We review
of
funds
excess
in furtherance of
acts
co-conspirators’
his
findings for
the
court’s factual
district
him
re-
overall scheme enabled
the
error,
the sen-
application
its
of
clear
compa-
own
through his
ceive illicit funds
de novo.” United
tencing guidelines
nies,
benefitting
substantial-
him
thereby
Hunt,
1192, 1195-96
v.
171 F.3d
States
checks
Knudsen issued
ly.
example,
For
(8th Cir.1999).
each
the
College
the
behalf of
on
A.
including Bad
companies,
bogus
nine
was
Wound’s,
College
that
knowing
that
first
contends
Also, co-con-
nothing in return.
receiving
$2,657,032.06was er
court’s attribution
Banuelos, an accountant
spirator Daniel
by the six
the loss caused
roneous because
perform
audits
by
hired
Knudsen
by his co-
companies formed
phony supply
accounts,
in the Col-
buried
College’s
from the loss
conspirators was distinct
in-
all
reports
transactions
lege’s financial
by
companies.
his three
brought about
companies so
volving the nine
Thus,
Bad Wound asserts
convictions,
funds,
and 120
evasion
al
tax
also
2. Bad
was
sentenced
transportation of stolen mo-
for his
conspiracy,
months
his
imprisonment
months’
nies conviction.
organization,
of feder-
theft
theft from a tribal
College’s administrators would
detect
in determining
considered
the proper level
any missing
2S1.1(b)(2).
funds.
§
enhancement under U.S.S.G.
suggests
The evidence also
that Bad
person
“[A]
cannot be held liable
substantially
to the
committed
for the
losses caused
other conspirators
just
overall
and not
as it related to
scheme
in the
prior
scheme
to the
person
time the
”
three companies.
his
Most
Knud-
notably,
conspiracy.
entered the
States
sen testified that
in 1995' he and Bad
1016, 1026 (8th
Oseby,
Cir.1998);
about the possibility
conversed
1B1.3,
see also U.S.S.G.
application note
destroying
checks
canceled
'¶8.
2, We applied
principle
in United
any
and vendor
to cover
remaining
records
Cain,
States v.
a case similar to this one.
vestiges of their scheme.
Cir.1997). There,
Finally, similarities between sale conspiracy existed froni Atkins, December of this case and United States v. 1992 to December of and that which we found that the acts aof co- defendant a late comer” “was to the con conspirator were reasonably foreseeable spiracy. Nonetheless, Id. at 1252. the defendant because the defendant a,close money all of the attributed co-conspirator obtained working shared during the conspiracy to the defendant for relationship and because acts of fraud sentencing purposes. reversed, Id. We by each individual were re- committed concluding' because the record con similar. markably See 25 F.3d tained evidence that Both defendant of these elements joined July before also exist here. From 1992 to erred attributing Knudsen in the same worked the defendant Wound, any fraudulent department and Bad sales made the words *6 Knudsen, prior of to that time. Id. at “right was his ... to hand operations, make accounting, sure the Here, the finding district made no structure, specifically, was maintained.” regarding precise the time that Bad addition, In Bad Wound and the other joined the conspiracy. Wound The court conspirators employed nearly identical Knudsen, Banuelos, found that Jerry and means defraud all College: the used Godfrey began supply the company phony supply companies, checks received 12,1991, scheme on or June about and that Knudsen, by issued and had Banuelos con- join Bad Wound did not until a later time. ceal the in College’s transactions the finan- specific The court finding regard- made cial records. date, ing the latter and there is insufficient sum, In the acts of co-conspirators his in evidence the record from we which can reasonably were to Bad precisely foreseeable determine when Bad Wound en- in Wound and were of the furtherance conspiracy. tered working the The close supply company Accordingly, scheme. the relationship Bad between Wound and district court did not err that finding the in may Knudsen that Bad suggests Wound by loss caused co-conspirators’ compa- the already joined conspiracy have the in Jan- independent was not nies from caused that uary by when he was hired the by companies. Bad Wound’s College. Alternatively, there is evidence may that Bad Wound not have entered the
B. September scheme until he when that, argues Bad also even if Wound the and Minko-Bad Wound' formed Rapid. by companies again, loss caused his Then generally is evidence that Bad there by indistinct from the loss may initially caused the oth- Wound have formed Rapid ers, portion a Greenway knowledge substantial the combined and without prior loss occurred to his joining the Knudsen’s scheme and that Bad Wound illegal mid-1994j join scheme therefore should not did not conspiracy be the until into when she entered testimony privilege he and a conversation
following promised she plea agreement which profits the illicit to share agreed Knudsen “complete government provide companies. from I am testimony required.” ... as truthful finding regarding aof In the absence two conclusion for with this uncomfortable joined Bad Wound at which the time First, from the not clear reasons. the lack of rec- light of and in conspiracy that Minko- plea agreement face of date, it that is not to establish ord evidence knowingly waived this rather Bad Wound whether us to determine for possible the record does privilege, obscure correctly attributed privilege was discussed whether the reveal by the con- caused total loss Wound negotiations. Sec- during plea agreement joined conspir- If Bad spiracy. a serious ond, analysis ignores the court’s being by hired immediately after acy of this prior waiver question loss of the total —whether College, the attribution trial, at as may be withdrawn privilege error, because harmless constitute would Fifth Amendment testimoni- waiver the commencement from was withdrawn Stevens privilege al hiring College paid until Bad Wound’s Marks, 86 S.Ct. 383 U.S. supply compa- $400,992 phony only (1966). ad- Assertion of the L.Ed.2d subtracting this sum from nies. After may well spousal verse to Bad $2,657,032, attributable the loss cooperate, but agreement to plea breach a $2,000,000 and exceed would still concluding as that is not the same six-level the court’s thus support would not be may waiver with- plea agreement finding A enhancement. drawn, promise to spouse’s so July of conspiracy until join the did not specifically enforced. testify can be con- however, significant have would Wound, by that date for Bad sequences view, not resolve these my In we need $2,072,622 to the paid College had issues because troublesome Wound. operated companies not The adverse preserve them. failed loss from the Subtracting this sum total belonged to testimony privilege spousal to Bad attributable a loss result would Wound, not defendant Bad $584,410,which war- would Therefore, proposed she when Wound. enhancement only a three-level rant at adversely to Bad testify *7 a level of with in an offense result was whether she only legitimate concern only 108-135 months. sentencing range voluntarily waiving knowingly was filed at that time. Accordingly, vacate we pro- proposed he in limine and remand additional motion sentence the time at which outside the question Minko-Bad Wound ceedings to determine and, joined jury regarding waiver presence Bad Wound determination, cryptically the amount on this district court denied based issue. to him under again attributed prior loss that should be when this motion 281.1(b)(2). know from renewed at We U.S.S.G. trial. was unwilling was rulings the court these
IV. Bad Wound to evidentia- pursue allow jury, presence ry affirmed. The sen- outside are issue The convictions dis- vacated, clearly within court’s broad ruling and the ease is remanded tence factual inquire for further did not to the district cretion. resentencing accor- permitted have findings and for whether would itself) (or therewith. voir dire Minko- dance conducted testimony adverse prior to her LOKEN, concurring. Judge, Circuit ad- understood the clarify whether she testimony privilege and spousal Min- verse II, concludes In Part the court Thus, Bad Wound voluntarily waiving it. spousal her adverse ko-Bad Wound waived standing waived the issue he had
raise, admissibility and his attack on the Wound’s must be
rejected. join
I opin- remainder of-the court’s
ion and its ; decision affirm.
AMERICAN FEDERATION OF MU AFL—CIO, SICIANS, 2-197, LOCAL intiff-Appellant,
Pla
The ST. LOUIS SYMPHONY
SOCIETY, Defendant-
Appellee.
No. 99-1281.
United States Court of Appeals,
Eighth, Circuit.
Submitted Dec. 1999.
Decided Feb. Werner, Louis, MO,
Charles A. St. ar- *8 (Loretta- gued Haggard, brief), K. on the Plaintiff-Appellant. Jaudes, Louis, MO, E. Richard St. ar- ' (Carrié gued L. Hope Schierer and K. Abramov, brief), on the for Defendant Appellee.
Before S. RICHARD ARNOLD HANSEN, Judges, Circuit n MELLOY,1 Judge. District Iowa, Melloy, sitting Michael J. by designation. Honorable Judge States District for the District Northern