United States v. Vernon Owen Vannerson (85-1507), and Lorena Gleason Stevens Vannerson (85- 1518)United States v. Vernon Owen Vannerson (85-1507), and Lorena Gleason Stevens Vannerson (85- 1518)
Dеfendants appeal from a conviction by a jury in a criminal case. Defendant Vernon Vannerson (Vernon) was convicted of theft of money from a federally insured bank, in violation of
I.
On December 12, 1979, a bag of money containing $63,060 in $100 and $50 dollar bills was taken from an armored truck operated by Wolverine Dispatch. The truck was operated by Jedd Gerken, an emрloyee of Wolverine, and defendant Vernon was working as a contract guard on the truck being employed part time by Annand Security. During the course of the
Subsequent to the theft, the FBI maintained surveillance on Gerken, Vernon, and Lorena. Gerken’s surveillаnce revealed nothing unusual. However, the surveillance of both Vernon and Lorena proved fruitful. Right after the robbery, both Vernon and Lorena started making substantial cash purchases and bank deposits involving $50 and $100 bills. Prior to the theft as well as thereafter, neither defendant had any substantial demonstrable sources of income. 2
In the spring of 1984, both defendants were interviewed again and confronted with the information that the FBI now had on their inсomes and recent expenditures. Both defendants gave stories which were inconsistent and which proved to be false in part. On December 6, 1984, both defendants were indicted, and on February 20, 1985, both defendants were found by а jury to be guilty as charged. At trial the evidence against both defendants was largely circumstantial, and the government relied heavily on the income and expenditure histories of the defendants. Both defendants testified and offered explanations for the source of the money they spent.
On appeal, defendants raise the following specific issues: (1) in this “net worth” prosecution, the government failed to show its agents made reasonable and feasible efforts to investigate innocent explanations for the defendants’ increase in worth; (2) the trial court improperly admitted evidence of Vernon’s failure to file state income tax returns аnd of his cash purchases; (3) the trial court erred in admitting evidence of Lorena’s purchases and banking transactions when there was no substantial evidence linking her to the theft; and (4) the government failed to producе sufficient evidence to support beyond a reasonable doubt a finding of guilty. These issues will be considered seriatim.
1. In this “net worth” prosecution, the government failed to show its agents made reasonable and feasible efforts to investigate innocent explanations for the defendants’ increase in worth.
Defendants’ arguments are predicated upon the proposition that this was a “net worth” prosecution and rely for support on
Holland v. United States,
When the Government rests its case solely on the approximations and circumstantial inferences of a net worth computatiоn, the cogency of its proof depends upon its effective negation of reasonable explanations by the taxpayer inconsistent with guilt. Such refutation might fail when the Government does not track down relevant leads furnished by the taxpayer — leads reasonably susceptible of being checked, which, if true, would establish the taxpayer’s innocence.
This admonition was pronounced in the context of a tax prosecution. It is not necessary to reach a determination as to whether it is applicable in other criminal prosecutions by analogy because, here, although both defendants offered explanations for whеre they got the money they were spending, such explanations were largely inconsistent and demonstrably false.
3
The government did refute most of defendants’ stories, with the possible exception of Vernon’s income frоm playing in a band. As to the alleged band income, the FBI did ascertain that no income was reported to the government and, at trial, Vernon and several of his musician friends testified on this issue. The jury heard the testimony and disbelieved it, so it was not a matter not brought to its attention.
4
In fact, the falseness of both defendants’ explanations was further evidence as to consciousness of guilt, and the jury was so instructed.
United States v. McDougald,
2. The trial court improperly admittеd evidence of Vernon’s failure to file state income tax returns and of his cash purchases.
The failure to file income tax returns was probative relative to Vernon’s income prior to the alleged theft of the money. It was one of the ways the government negated Vernon’s claim of income from playing in bands.
United States v. Hinton,
3. The trial court erred in admitting evidence of Lorena’s purchases and banking transactions when there was no substantial evidence linking her to the theft.
Lorena’s argument here is based upon her contention that “[tjhеre simply was no evidence which placed her at the scene of the taking of the bank money or implicated her in a substantial way.” (Def. Lorena Vannerson’s Brief at 16.) This contention . misperceives the elements of the offense of which she was convicted. Unlike her husband, Lorena was not charged with the theft but only receiving, concealing, or disposing of the stolen bank funds. There is no need to place her at the “scenе of the taking,” although, in fact, she did
4. The government failed to produce sufficient evidence to support beyond a reasonable doubt a finding of guilty.
This last argument of defendants is little more than a reprise of their other arguments. A defendant claiming “insufficiency of the evidence bears a very heavy burden.”
United States v. Soto,
Here the jury was presented with ample evidence from which they could conclude beyоnd a reasonable doubt defendants’ guilt. Vernon was on the truck and was one of only two persons who could have taken the money. The other person was cleared by subsequent investigation, while Vernon and his girlfriend, Lorena, went on a cash spending binge with bills in the exact denominations of the bills which were stolen. Neither defendant had any past substantial income and both offered inconsistent and false explanations for the source of their funds. The trial court correctly refused to grant defendants’ motions for acquittal made at the close of the government’s case and after the jury verdict.
The jury verdict of guilty is affirmed as to both defendants. 4 5
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APPENDIX B
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Notes
. The two defendants married in 1982.
. The government’s summary charts showing defendants’ income and expenditures for the relevant period are reproduced as Appendices A, B, and C to this opinion.
. For example, Vernon said some of his money came frоm illegal marijuana sales but then later changed his story and said he had not sold any marijuana since the birth of his last child in 1977. Similarly, Lorena stated she received an $8,000 personal injury settlement, that she had money in savings and cheсking accounts and bonds, and $3,700 from a house sale. The facts were that she had insufficient funds in any account to cover her purchases until after the theft, her bonds totalled $300.00, she only received initially $1,000 of the alleged $8,000 injury settlemеnt, and the house sale was two to three years after the theft.
. This is not to suggest, however, that any lapse in the government’s proofs would be cured by defendants’ evidence, since defendants moved for a judgment of aсquittal at the close of the government’s case, and it is at this point in time that the sufficiency of the government's proofs have to be measured. It should also be noted that the government did subpoena the musician friends of defendant Vernon, although it did not call them to testify, so that it is clear that these persons were interviewed by the FBI.
. It should also be noted, in connection with the issues raised by defendants in this appeal relative to the introduction of evidence relating to their financial transactions, that there were no trial objections to such evidence. Under such circumstances, the defendants must demonstrate plain error, which they have failed to do.