United States v. William A. Croft

$130,991 proposal and Croft’s forwarded COFFEY, Before PELL and Circuit grant funds to Office of Research Ad- DUMBAULD, Judges, and Senior District ministration at the of Wisconsin- Judge.* held the funds in Madison. (UW special EPA account Fund Account COFFEY, Judge. Circuit 144-Q386) agreed with the Number Croft, defendant-appellant, William only EPA to disburse those funds for ex- appeals his conviction for one count of penses during the course of the incurred converting, unlawfully knowingly and two-year project. EPA The EPA research of the of value” designated “principal his own as the investi- Croft (the Agency project, ser- gator,” Protection or coordinator of the re- Environmental Johnson), supervising contributing of 18 sponsible in violation vices of Laurel research, submitting expert as well as affirm. We U.S.C. 641 * Dumbauld, nia, sitting by designation. Senior Dis- Edward The Honorable Pennsylva- Judge District Western trict reports to progress microscope, the EPA. under an and counting semi-annual electron See, Following particles 30.135-19. the number e.g., appearing 40 C.F.R. of asbestos funds, receipt upon University’s January slide. Between began immediately Caplenas performed search for a March of Croft water analyzed to assist him in EPA chemistries specialist various water count, study. samples for including their asbestos preliminary samples some that Croft later, in January Some five months obtained from the town Weston. separate in a Croft involved became addition, Caplenas visited numerous meat completely independent asbestos research packing throughout Wisconsin, facilities project. visiting his While hometown obtaining samples of cancerous cattle tis- Crivitz, Wisconsin, learned that town testing sue and them for mesothelioma. Weston, nearby officials Wisconsin were possible prob- again In March concerned about asbestos traveled to Weston, system. Wisconsin; lem in water The time to meet the Weston with Department proposal town’s of Public Works had the town board and discuss his for underground pipe, measuring evidence that the water the level of asbestos in the asbestos, supply. made corrod- town’s of cement and water Croft assured the ing releasing and asbestos fibers into We- board that in he was well-trained asbestos supply. arranged capable performing ston’s Croft research and of water meeting highly counting attorney process the Weston and the technical of asbes- particles. to tos director of Public Works discuss Croft further informed twenty-three pipe permission miles of concrete board that he had received superiors University carried the residents of his of water to Weston. at the Wiscon- meeting, At the Croft informed the Weston sin-Madison to conduct the Weston re- representatives experience project search University’s of his asbes- and to use the facilities, ability per- research and his to advanced on the tos-related research condi- form tion that he for highly technical scientific ex- reimburse the school their month, periments expenses. following needed to ascertain in April the asbestos The 1981, the supply. content in the town’s water town hired Croft at a fee board of hour, complete thorough test $75.00 month, January In that same Croft of the asbestos content in the Weston wa- completed project specialist his search for a supply ter by September The study, hiring Nijole on the Ca EPA-funded attorney requested per- town's that Croft plenas, graduate a recent from the Univer sonally perform the research all of sity of degree with a Masters Wisconsin procedures scientific in the because event medicine, aid him microbiology in collect against pipe of a lawsuit the concrete man- ing analyzing two-year data for the ufacturer, Corp., Johns-Manville Croft project. Caplenas’ initially duties consisted expert would data substantiate performing (including chemistries water samples’ and account for the water chain of factor, pH alkalinity, tests for the hard custody at trial. ness, index) aggressiveness and learn ing Following proper analyzing meeting April method of water with the samples board, returned to determine their count.1 Weston town Croft asbestos detailed, time-consuming process in- Wisconsin-Madison and Caplenas, project special- formed counting filter the EPA asbestos fibers involves the ist, ing through samples of a alcohol additional water would sample water be arriving from for her to paper, coating analyze. soaked Weston filtration carbon (burning Caplenas responded paper slide, ashing busy that she was ex- onto a the slide amining residue), slide cancerous cattle away placing the tissue the. unwanted causing the calculate release of asbestos fibers aggressiveness 1. The is used to into the index system. concrete will corrode water the rate at which water asbestos, thereby pipes consisting of cement tests, his asbestos as the residents suits of did not have the time to aware and were fearful of the chemistries or the water Weston perform either the carcinogenic problem in the town’s project. possible for the Weston counts asbestos See, Herald, supply. e.g., Daily period, April time water During this same Wausau-Merrill, Wis., February employed the James services Croft study. explained in the EPA that his test results also assist at 19. Croft Williams to Williams, journalism stu- delayed personally because he had to assigned on an working time-consuming for Croft had been water filtra perform dent who project that was near- research each unrelated and asbestos count for water tion periodi- scientific ing completion, complete to review sample. Croft failed to the We articles. 1,1981 studies and September cals for asbestos dead project by the ston line, following during months Johnson, an under- Laurel June attorney September and October town animal sciences graduate in the student requested provide that Croft repeatedly Illinois-Cham- program at the reports. Finally, progress town board Madison, living in Wiscon- paign who was water Croft submitted October summer, contacted Croft con- for the sin samples, of 134 water asbestos chemistries obtaining research- cerning her interest samples, twenty-three of those counts According to employment. related summer data, pertinent to the town and other Johnson, explained that he had an Included in the data submitted board.2 perform opening for a research assistant pages chemistry of water Croft were five analyze water sam- chemistries and per had calculations that Laurel Johnson Weston, John- ples taken from Wisconsin. samples during water formed on Weston em- accepted Croft’s offer and was son employment.3 her summer 1981, mid-August to of ployed from June performed water during which time she month, following in November samples, on the Weston water chemistries forced to withdraw James Williams was count of those sam- analyzed the asbestos to a recur- position, his research due from the results in a laborato- ples, and recorded a result of his ring physical illness. As ry log early August In Croft book. Croft, Williams earned employment with if remain in Madi- asked Johnson she would $13,685.00 according during 1981 and to in upcoming fall semester order son for payroll of Wisconsin might complete her research on that she records, pay- of a substantial amount samples. water Johnson de- the Weston special EPA ac- ment was made from to the clined the offer and returned Univer- during count. the fall of Sometime Following Illinois-Champaign. sity of telephoned at the Croft Laurel Johnson Illinois, Croft directed return to Johnson’s Illinois, asking “if had University of [she] himself in the to educate James Williams by anyone contacted from the Univer- been techniques re- procedures and scientific [Regarding sity Wisconsin] [of perform chemistries and quired to ____” responded summer work Johnson According to the Univer- counts. asbestos that she had informed an auditor records, payroll Johnson sity of Wisconsin she “had of Wisconsin that been $1,988.45 special EPA from the received doing for the summer for Dr. Croft.” work research, assist- account for her summer February Nijole Caplenas resigned In research asbestos ance on Weston project specialist position from her as the project. might study in order that she for the EPA objectives. According pursue the We- career new Throughout the summer payroll University of Wisconsin for the re- to the pressured Croft ston officials trial, asked Croft whether on October 3. At the Government claimed 2. At Croft he, fact, calculations to submitted Johnson’s sixty-six in asbes results of he submitted replied, board. Croft "I do not Weston town board. Weston town tos tests to the got there.” know how use, records, $14,176.85 Caplenas verting, received dur- his own per- to services portion of ing 1981 and a substantial Laurel Johnson paid formed for special was drawn from the EPA ac- sura On funds. November count. year to one imprison- Croft was sentenced $5,000, ment, pay fined ordered to res- the EPA officials aware of became Once $2,955.13 amount titution in the private asbestos for the Croft’s United States Government. appeal, On Weston, they town commenced inves- contends initially Croft that the services tigation into whether or not EPA funds are not research on Laurel Johnson payment disbursed value” § during project. phrase The evidence as that used obtained U.S.C. 641. investigation alternative, to presented a Fed- Croft claims that 2, 1983, Jury, Grand and on March eral indictment was because it insufficient Jury indict- Grand returned a three-count allege specific failed to the element of in- against knowingly ment Croft for convert- required prosecution tent that is under performed to his ing, own the services 641. Finally, 18 U.S.C. Croft contends Johnson, Williams, James Laurel admitting that the court district erred in Caplenas Nijole on the Weston research payroll records, evidence of the account funds, paid project and for with EPA failing properly jury instruct on pled of 18 U.S.C. 641. violation Croft’s defense the elements of a sec- guilty to all three counts of the indictment. offense, failing tion 641 and in provide later, 27, 1983, two April Some months jury transcripts requested Jury superseding Grand filed a three- testimony. alleging count indictment that Croft know- ingly unlawfully converted servic- II Williams, Johnson, Caplenas es of use violation of 18 U.S.C. A. OF “THING VALUE” UNDER 18 August the Government filed a On § 641 U.S.C. particulars clarify the indictment bill initially contends that his ac notify and Croft that the relevant time purview tions fall do not within the of 18 period during the frame included which § 641, provides pertinent U.S.C. which in Williams, Johnson, Caplenas “worked part: the direction under the defendant knowingly “Whoever converts his ... to [Croft], during the defend- which time any thing own use ... of value ... services____” ant converted The [their] United ... fined not States be [s]hall proceeded claimed, to trial and case Croft $10,000 imprisoned more than or defense, a that the water chemistries as years, both; more ten or if than but the performed by the and asbestos counts property value of such does not exceed research assistants on the Weston three $100, he sum of shall be fined not training proce- samples simply were $1,000 imprisoned more than not more that allowed the to refine dures students year, or than one both.” techniques required for successful completion project. of the EPA Croft, According to services of Laurel that none of claimed the research assist- Johnson do not constitute a of val- products calculations nor ants’ work phrase is ue” as that used in 18 U.S.C. board. forwarded Weston town § support position, this 641. To Croft re- However, cross-examination, upon reasoning upon lies the Ninth Circuit explain presence unable to of John- was States, Chappell in United 270 F.2d 274 in son’s calculations the data submitted to (9th Cir.1959) ”), (“Chappell where a ser- the town board. geant in Air Force was section prosecuted ordering under 641 for upon presented

Based evidence at paint apartments, on airman to jury guilty found Croft one of owned indictment; sergeant, during eon- three counts airman’s normal §of provide is purpose to Chappell stated “the The court duty hours. § intentional conduct 641 was to which purpose of 18 U.S.C. sanction that the “stealing, larceny, misappropriates either or obtains place person crimes such one cate- equivalents” advantage into wrongful government its variants were never gory offenses Bailey, property.” “[s]uch by one man mak- committed thought (7th Cir.1984) to be (emphasis add- of another’s servant ing of the services Morissette, use ed) (citing 342 U.S. at at reimbursing the master.” Id. without 254) ”). (“Bailey S.Ct. plain held that court thus 276. The “[i]t § scope The broad of 18 U.S.C. 641 as language of in the there is no warrant analyzed by Supreme in Moris- Court the Govern- to sustain U.S.C. 641] [18 Bailey and this court in has been sette treat the services and attempt ment’s interpreted by the Federal circuits to in- thing of value.” as a labor airman] [the knowing intangible clude the conversion of at 276. Id. “things example, of value.” For United claim under 18 analysis of Croft’s Our (8th Cir.1980) F.2d 186 May, States Supreme begins with the U.S.C. Adjutant (“May”), a former General decision Morissette v. Court’s seminal used National Guard the National Guard States, United aircrafts, fuel, personnel for “his own (1952) (“Morissette”). 96 L.Ed. 288 rather than that of the Nation- convenience prose- hunter a civilian deer was general al Guard.” Id. at 188-89. knowingly 641 for con- cuted under section knowing convicted for conversion of was verting, discarded simulat- property States violation of 18 hunting on United ed he found while bombs § 641, argued appeal U.S.C. property. The issue Air Force be- States Chappell “any as to the under evidence Supreme Court was whether fore intangibles, specifically the sala- value required prove the de- was Government servicemen, impermissible.” ries of was property to intent to convert such fendant’s Eighth May, 625 F.2d at 191. Circuit Court, According to the Con- his own use. rejected argument, holding enacting gress’ purpose 18 U.S.C. ’ “ ordinarily subject ‘valuables not from scattered sources “to collect may conversion nevertheless be sub- tort belong in one cate- crimes so kindred as to ject to criminal conversion under section of these had been gory. Not one [crimes] added). (emphasis Id. The court 61/1.” interpreted to a crime without intention be statutory ‘thing reasoned that “the words between purpose and no to differentiate value,’ scope of broaden the section 641 is disclosed.” them in the matter of intent beyond subject matter of the common Thus, 266-67, 72 S.Ct. at 251-52. Id. at foundation.” law torts which are its Id. Congress not seek concluded that did Court Thus, language in the court adhered to the offense,” any intent from “to eliminate applies to acts Morissette that section 641 641, including in section know- enumerated “larceny or embezzlement at common at 72 at 255. ing conversion. Id. S.Ct. into those law and also acts which shade Following thorough legisla- review which, considered, strictly crimes but most § 641, history of 18 the Court tive U.S.C. might not be found to fit their fixed defini- § that, history of 641 demon- added “[t]he Morissette, (quoting 342 at tions.” Id. U.S. apply it to acts which strates that was to 28). 269 n. 72 S.Ct. at 253 n. at larceny constituted or embezzlement Girard, In 601 F.2d 69 which shade common law and also acts (2d Cir.1979), denied, 444 cert. U.S. which, strictly most those crimes but into (1980) (“Gir 100 62 96 S.Ct. L.Ed.2d considered, be might not fit 28, found ”), agent a DEA undercover retrieved ard 269 n. Id. at their definitions.” fixed added). computer file and information from a DEA (emphasis 72 S.Ct. at 253 n. ring. The reasoning in sold it to members of a narcotics Court’s Supreme line agent knowing conver- has determined was convicted for Morissette, court 641____ § property in sion of States violation tion of Much can be said in § 641, argued appeal of 18 government’s U.S.C. argument favor of applied tangible only the statute States, Chappell v. United supra, property; intangible not information from is interpretation inconsistent computer disk. The Second Circuit re- Supreme by the Court in Moris- sette____” legislative history of section 641 viewed impressed by that “we are Con- stated added). (emphasis Id. The Third gress’ repeated phrase ‘thing use of the upon language Circuit relied the same predeces- in section value’ 641 and its quoted by Eighth in May, Circuit sors____ ‘thing’ The word notwithstand- applies “larceny 18 U.S.C. 641 to acts of ing, phrase generally construed to or embezzlement at common law and also intangibles tangibles.” cover as well as Id. acts which shade into those crimes but at 71. court thus concluded that which, considered, strictly might most not “[although writing the content of a is an found fit be their fixed definitions.” Di- thing intangible, it is nonetheless a of val- Gilio, (quoting Morissette, 538 F.2d at 978 ue____ property Government has a [T]he 28). 342 U.S. at 269 n. at 253 n. S.Ct. private its records interest certain of also Truong See Dinh may protect by thing statute as a which (4th Cir.1980). Hung, 629 F.2d by It has done this the enact- of value. present In the improperly ment of section 641.” Id. converted to his own use a of val DiGilio, Similarly, in United States v. ue,” specifically the services of Laurel (3d Cir.1976), clearly Johnson. The record reveals that 50 L.Ed.2d 749 Johnson, supervision under Croft’s and di (1977)(“DiGilio ”), the defendant was con rection, performed water chemistries on procuring copies unauthorized victed of samples, analyzed the Weston water FBI file documents in violation of 18 U.S.C. samples, compiled asbestos count of those appeal, argued the defendant 641. On calculations, detailed and recorded the data copies the unauthorized of records that was later transmitted to the Weston “records,” were not themselves and thus According town board. he could not be convicted under section 641 attorney, paid Weston’s the town board converting, to his records of $40,000 $50,000” Croft “between re United States. Government project. conduct Weston research At sponded misappropriation that “the of in attempt did to establish that formation falls within 641’s sanction.” paid he Laurel her Johnson for services at 977. The Third held that Id. Circuit with the funds received from the Weston the defendant’s actions constituted because Rather, records, town board. the uncontradicted larceny an actual there was testimony and no need to reach the issue of whether a evidence reveal that the ser performed by testing conversion of the information contained on vices Johnson in fact, had, samples recording those occurred. The records Weston water added, however, log court that: laboratory paid results in a book were in full the EPA.4 As a result of not, resting upon “We do the narrow- payment performed larceny EPA’s services ground er that a technical has by project, research proved, imply rejection a Johnson on the Weston been intend EPA interest in those government’s interpreta- has a financial broader Thus, pur 4. The record reveals that Laurel Johnson's ser- over the funds in that account. paid poses analysis, paid special EPA ac- of our the EPA for John vices were for out of the Mitchell, by 625 of Wiscon- son’s services. See United States count established denied, 158, Cir.1980), (7th According in the F.2d 160-61 cert. 449 to the conditions set forth sin. 984, 402, (1981); agreement regulations L.Ed.2d 247 enumerated 101 S.Ct. 66 Maxwell, 568, EPA, F.2d seq., execu- 588 570-74 in 40 C.F.R. 30.100 et an § 877, Government, (7th Cir.1978), 100 agency 444 U.S. tive 163, (1979). 106 supervision control 62 L.Ed.2d maintains substantial 1362 protect it is entitled to as a B. “KNOWING CONVERSION” UN-

services that § § under 18 U.S.C. “thing of value” 18 641 DER U.S.C. analysis in According to this court’s Croft next claims if his that even § purpose of 641 ... is to Bailey, “the purview fall within the actions of 18 U.S.C. for intentional conduct provide a sanction § 641, the indictment was insufficient be person misappropriates either by which a only charged “knowing cause it Croft with wrongful advantage or obtains unlawfully” converting ly services property.” 734 F.2d at 304. government of Laurel Johnson to his own use. As we wrongful It is evident that Croft obtained noted, previously Supreme Court advantage by converting misappropri language interpreted in Morissette ating the services of Laurel Johnson for his § 641 to 18 U.S.C. include an element of project allowing personal research while phrase intent. Croft contends that paid by to be the EPA. those services “knowingly unlawfully” does not suffi of Johnson’s services for Croft’s conversion ciently clearly set forth this element of use, just of intan as conversion pur intent as it has been construed for gible May and the conversion of services Thus, poses of section 641. Croft reasons Girard, intangible information is one of that the insufficient indictment renders the by Supreme those referred to acts fatally conviction based thereon defective. into the Court that shades crimes of larce See, Denmon, e.g., United States v. 483 which, ny or “but most embezzlement (8th Cir.1973). F.2d considered, strictly might not be found Morissette, fit their fixed definitions.” Watkins, In United States v. U.S. at 269 n. 72 S.Ct. at 253 n. 28. We Cir.1983) (7th (“Watkins”), this court limited, disagree the Ninth Circuit’s acknowledged that an indictment under 18 narrow, interpretation and unrealistic § it, first, alleg- U.S.C. 641 is “sufficient if Chappell intangible not services do charged es the elements of the offense phrase of value” as that constitute a fairly charge informs a defendant of the Rather, adopt is used in section 641. we her, and, second, against him or enables logical construction of section 641 man plead acquittal the defendant to or con- by Supreme dated Court in Morissette prosecutions.” viction in of future bar Bailey, and this court in and hold that the (citing F.2d at 478 Hamling v. United services rendered Laurel Johnson on the States, 94 S.Ct. project research do Weston constitute (1973)). According 41 L.Ed.2d 590 “thing of value” under 18 U.S.C. 641.5 Eighth “specific Circuit in May, intent States, Accord Burnette necessary alleged is a element that must be (6th Cir.1955) (per curiam) in the indictment” under section but no (United Army States officer convicted un “particular required. formula” is verbal “convertpng] 641 for der 18 U.S.C. to his Watkins, 625 F.2d at 190. also See own use the services and labor of two (“no particular phras- F.2d at 478 words States”). Indeed, employees of the United es must be used” an indictment under reasoned, aptly Holmes has so as Justice 641). section The relevant case law demon- agree generalities to all the about “[w]e particular strates that no verbal formula or supplying they criminal laws with what required talismanic combination of words omit, against using there is no canon but properly allege specific the element of construing saying common sense laws intent in an indictment under 18 U.S.C. obviously they mean.” Roschen v. what Morissette, Supreme 641. In Court Ward, 279 U.S. approved charg- a section 641 indictment L.Ed. concurring opinion appears opinion, state in the text of the our narrow to miscon- 5. The holding holding emphatic with its is that "the services rendered Laurel strue our statement property, are not Johnson on the Weston research do con- “services least since slavery.” ‘thing abolished we stitute a value' under 18 U.S.C. 641.” Amendment As 13th alia, Thus, the ing, inter that defendant “did the of its services. we hold unlawfully, wilfully knowingly con and that the indictment in this sufficiently case 342 U.S. at vert to his own use.” alleges specific the intent element of 18 hand, the other S.Ct. at 253. On number by U.S.C. as defined the court in held that of Federal circuit courts have the Morissette, accurately and informs-Croft of “wilfully knowingly” and is suffi phrase charged. the crime allege specific intent cient to element Croft further contends that the in apprise section 641 and the defendant of dictment is insufficient it because failed to charged. the crime United States v. See inform him of the “services” that were (D.C.Cir.1982); Baker, 693 F.2d converted. A of the record review reveals 189; May, O’Malley 625 F.2d at v. United this claim is likewise without merit. States, (1st Cir.1967), 378 F.2d Government, response to Croft’s 571, 19 pre-trial indictment, motion to dismiss the L.Ed.2d 606 Neither our research particulars filed a clarifying bill of parties’ any nor the briefs reveal Federal particularizing that the relevant time frame construing phrase circuit law “know of the period indictment was the that Wil unlawfully” ingly and as used the sec liams, Johnson, Caplenas “worked un presently tion 641 indictment before this der the [Croft], direction of the defendant for review. court during which time the defendant con sufficiency examination of the Our verted services.” The Government [their] guided by indictment in this case is explained further that the services consist Supreme analysis in Court’s Morissette ed of “laboratory Johnson’s work “knowing requires conversion more personal project defendant’s with the Town knowledge taking than that defendant was of Weston” and the “research and laborato property possession. into his He must ry spent by Caplenas time” Williams and knowledge facts, though have had personal “on the defendant’s with law, necessarily that made the tak- the Town of Weston.” The detailed infor ing 270-71, a conversion.” 342 U.S. at provided mation within the Government’s According Court, at S.Ct. 253-54. particulars clearly bill of informed Croft of charge the section 641 indictment must type of services converted to his own defendant with “criminal intent to ... use, indictment, and thus we hold that the convert, is, knowingly wrongfully to amended, was more than sufficient to deprive possession property.” another charge Croft awith violation of 18 U.S.C. (emphasis origi- at at Id. Watkins, 641. Accord 709 F.2d at 478. nal). Wilson, also See (8th Cir.1980). In the C. TRIAL ALLEGED ERRORS 2, 1983, original indictment of March Croft next the district contends Jury charged knowingly Grand with admitting court computer print- erred converting, the services outs, containing of Wiscon- Williams, performed Johnson, and Ca- records, payroll sin’s into evidence and in plenas paid the EPA. In the denying pro- computer Croft access superseding April indictment of gram. At the Government elicited Jury charged the Grand Croft with know- Laufenburg, from Richard Di- converting ingly unlawfully those Payroll rector of and Benefits Services “knowingly and phrase same services. The Wisconsin-Madison, charges with more than unlawfully” computer printouts Williams, question knowingly taking the services “individual income tax Johnson, charges summary him detail Caplenas; year taking those ... calendar 1981 which knowingly services in reflects sum, payment phrase the individual made law. to all individu- violation of unlawfully” properly through payroll system.”- als Accord- “knowingly depriving ing Laufenburg, wrongfully computer-gener- these charges Croft 1364 Annot., 8, 7 (1978); 15 A.L.R.4th payroll of the 1981 compilations

ated this regular According court in in the course United States v. kept records were (7th Cir.), of Wisconsin- 698 F.2d cert. Chappell, of the 308 business computer denied, office. The payroll 77 Madison 103 S.Ct. contemporaneously made printouts (1983), were 304 records are L.Ed.2d business payments the time or near the with they “if in kept are the course admissible payroll data became and the were made regularly activity, of a conducted business Laufenburg the added available. regular practice if it was the of that payroll accurately the reflected printouts records, activity to the make business di under his maintained data and were testimony by the of the custodian or shown Moreover, Lau supervision. rection and qualified witness.” 698 F.2d at 311. other his staff reviewed fenburg testified that note, however, the important It is data contained on payroll the and audited are “if the business records inadmissible accuracy, on a printouts for computer the information or the method or source of throughout year. the Based regular basis preparation indicate a circumstances evidence, adequate foundation upon this pur lack trustworthiness.” Id. For the properly admitted the district court review, guided by poses of we are the as business records computer printouts clearly rule of established law that hearsay exception of Fed. that satisfied in “trial court has broad discretion ascer 803(6).6 contends that R.Evid. taining admissibility of business admitting in the com court erred district records, ruling and its should be disturbed puter printouts because Government only that discretion is abused.” when entered prove that the information failed Bros., Inc., 728 Young v. United States accurate and reli computer was into the Collins, (quoting Rosenberg v. F.2d at 694 Croft, court’s deci According to able. 665); Vela, 624 F.2d at Weatherspoon, v. sion United Statesh (5th Cir.1982). F.2d Cir.1978) (“Weather (7t 581 F.2d 595 es requires that Government spoon”), present In the the evidence input proce accuracy of the tablish computer printouts that the establishes computer printout can be dures before supervised question were maintained and evidence. introduced into by Payroll and Benefits the Director University of Services at the Wisconsin- computer data It is well-settled Laufenburg. Richard Ac Madison—one may constitute business compilations Laufenburg, printouts cording to were 803(6) Fed.R.Evid. purposes records for contemporaneously with or near the made proper if a may at trial be admitted available, payroll time data became foundation is established. United States kept regular printouts (5th Inc., Bros., F.2d Young - business, regular and it was the course of U.S.-, Cir.), denied, 105 S.Ct. cert. practice of the of Wisconsin- (1984); Rosenburg v. 83 L.Ed.2d printouts. to make such More (5th Cir.1980); Madison Collins, over, regard reliability Scholle, payroll data infor Cir.1977), 434 trustworthiness (8th 1124-25 computer and com- entered into the 300 mation L.Ed.2d regularly 803(6) part: business ac- provides, pertinent course of a conducted 6. Fed.R.Evid. regular practice tivity, of that and if it was the following the hear- are not excluded “The memorandum, activity rule, business to make say though is avail- declarant even record, compilation, report, all as or data able as a witness: activity. (6) regularly conducted the custodian or Records of shown record, memorandum, witness, com- report, or data A qualified the source of unless other acts, events, form, any condi- pilation, tions, information, circumstances or the method or near opinions, diagnoses, at or made preparation trustworthi- indicate lack of by, transmitted time or from information ness.” kept by, knowledge, in the person if Laufenburg printouts, computer Instead, in piled program. the testified the relevant performed of his staff “vari- that members payroll simply evidence was transferred throughout reviews and audits ... the ous payroll computer data sheets to a disk Laufenburg year.” further asserted that storage for in computer convenient the and input payroll in the infor- if errors occur of easy retrieval on computer printouts. In mation, pick up.” reviews these “should light of the the fact that actual computer Laufenburg impor- Finally, stressed the program any importance was little of if precautions by tance of the taken his staff present the we no hold that error was accuracy printouts, the of to ensure these committed when the district court failed to upon by which are relied the of allow Croft program. access to the complete 60,- Wisconsin the more than Croft next claims jury that the instruc- employee annually 000 W-2 payroll forms tions concerning theory his of defense were processed by the the Inter- institution for incomplete improper. and thus The district nal Revenue Service. court jury: the instructed The record reveals that defense counsel “It is theory the defendant’s of this thoroughly Laufenberg cross-examined case that he per- intended that the work concerning accuracy the of computer the upon formed the samples input procedures. and the Weston water According to Williams, evidence, James computer the uncontroverted the Laurel Johnson and printouts Nijole Caplenas were reviewed and for audited for purpose was the of accuracy on regular throughout basis the instructing technique them in the of fil- year upon by and also relied the tering samples, preparing them for complete of Wisconsin-Madison to tax analysis and counting fiber fi- asbestos the forms for Internal Revenue ’’Service. bers. The theory defendant’s additional evidence, This when with the fact combined is this case the Environmental that performed the by Laufenburg’s that audits Agency Protection not did lose the servic- “picked up” any staff should have errors Williams, es of James Laurel Johnson input payroll information, sufficient Nijole Caplenas. ly reliability establishes the and trustwor Now, the defendant has no burden to computer printouts. Thus, thiness of the prove government these theories. The totality in view of the of the circumstances guilt has the proving burden of that we hold the district court did not beyond defendant reasonable in admitting print abuse its discretion doubt....” hearsay excep outs into evidence under the that contends district court 803(6).7 tion of Fed.R.Evid. We further jury should further informed printouts that the present note in the case consequences acquittal, of an that simply computer compilations pay were training permitted Croft believed was un- print roll data information 1981. The grant, outs contained no der the EPA calculations studies and that Croft believed upon a complex that relied he intricate did not submit the calculations and work Weatherspoon, comput- this finding court held that a foundation sufficient to warrant a that printouts properly er were evi- admitted into trustworthy oppos such information is following proof dence the Government's ing party given opportunity is ... [an] to in were, input procedures "what ... that quire accuracy computer into the and its input procedures printouts were accurate input Liebert, procedures____” United States v. percent, computer within ... was two (3d denied, Cir.), 519 F.2d cert. 423 U.S. programming tested for internal errors aon (1975) (citing 46 L.Ed.2d 301 basis, monthly printouts Georgia, v. De States 893 n. made, maintained relied on ... in the ordi- (9th 1969)). Cir. See also United States v. nary course of ... business activities.” 581 F.2d (5th Cir.1975); Fendley, 522 F.2d Unit Although computer at 598. the evidence of in- Russo, (6th ed States v. put procedures present is as case 1973), Cir. thorough all-encompassing L.Ed.2d 109 evidence, nonetheless, "lays Weatherspoon; Williams, Johnson, and performed es research assistants product of his erroneously Caplenas. Croft asserts board. Weston town jury to court failed to allow the the district cir law is well-settled ques- ownership issue as a determine entitled to have defendant cuit that “[a] court instructed tion fact. The district theory jury instructed purposes of 18 U.S.C. jury supported by the defense is if the defense required the Government States and the evidence.” United law prove, beyond reasonable doubt: (7th 485, 493 684 Cir. F.2d Martin-Trigona, Grimes, 413 1982) v. (citing United States That defendant converted “1. the (7th Cir.1969)). also 1376, See 1378 F.2d $100, in excess of thing of value worth Moore, 830, F.2d 832- v. 627 United States use; services, to employee’s his own an denied, Cir.1980), (7th 450 U.S. cert. 33 be- 2. That the services involved 1360, (1981). 916, L.Ed.2d 342 67 101 S.Ct. longed to the States Government United case, he admits that the instant Croft In having employee of been by virtue the Williams, Johnson, Caplenas and directed paid money. federal samples. water analyze the Weston to That conversion was done 3. the that he claims as a defense simply Croft unlawfully.” knowingly and faith, believing that his ac good acted in The on the issue of “ser court added that not constitute a proper and did tions were Government, Federal belonging to the short, vices de law. In Croft’s violation of the University of the Wisconsin he when of his that lacked fense consists belief employee man pay to an in a funds specific required intent to be convicted draws the grant the thing “a Federal converting, to his of ner that debits a of EPA, drawn, University is of U.S.C. the the violation 18 of funds value” of amount this According to rule of agent the law of the United States acting as circuit, determining propriety of the funds of the United the funds so drawn are “[i]n they are viewed as a instructions to be properly This latter instruction States.” whole, long treat as the instructions law, and as that, jury as a matter of informed the accurately fairly they will the issues special from the the funds drawn appeal.” be interfered with on United EPA, belonged an executive account 1116, (7th 683 F.2d 1127 Ray, States the United States Government. agency of 1091, Cir.), denied, U.S. 103 S.Ct. cert. 459 regulations 40 the of According to detailed 578, (1982) (citing 74 L.Ed.2d 938 seq., the EPA exercises C.F.R. 30.100 et 381, Patrick, (7th F.2d 389 542 States v. over supervision and control substantial 931, denied, Cir.1976), 430 U.S. 97 cert. funds, by the those held grant such as (1977)). 1551, The L.Ed.2d 775 S.Ct. 51 Wisconsin-Madison, and thus University of defense instruc theory district court’s of do, law, belong to of the as a matter funds fairly the of clearly jury informed tion Mitchell, the EPA. United States See good that acted faith Croft’s belief he (7th Cir.1980), cert. 625 F.2d 160-61 his EPA research assist he directed when denied, 66 S.Ct. samples. analyze ants to the Weston (1981); v. Max L.Ed.2d 247 Thus, jury review of the instructions upon Cir.1978), (7th well, 571-74 whole, including the as a Government’s denied, 444 U.S. cert. ele proving specific the intent burden of (1979). jury, guided by The L.Ed.2d belief Croft’s ment section required principle, properly legal was law, the we hold that the he did not violate the the factual issue whether decide instruction, theory recited of defense Johnson, Williams, Caple services court, proper. district the Thus, we hold EPA. belonged nas the in court did not err district that the district next contends jury as to the Government’s jury structing instructing court erred EPA funds. ownership ownership of the servic- EPA’s issue (1976). finally court claims that the district See also McCoy, failing grant jury’s request (7th Cir.), erred in Laurel complete testimony to “hear the 46 L.Ed.2d 127 Johnson; testimony of Mr. Croft the instant the trial court employment.” regarding Laurel Johnson’s judge suggestions solicited par jury requested The record reveals properly weighed ties and the interest of a.m., at 12:52 some five maintaining sequestered jury to reach a began deliberations. hours after against providing verdict the interest of jury the testimony court informed the jury transcripts requested testi was not available time and that mony. upon involved, Based the factors sequester arrangements would be made to including inability to contact the free jury. parties agreed and the court reporters, logistical court prob lance reporters to contact free-lance court sequestering jury lems for an ex order them who attended time, period very tended and the real testimony possi- transcribe the as soon as exposing jurors likelihood of to adverse The some ble. court reconvened ten hours publicity if sequestration the order of were a.m., later, at 10:45 and at that time the lifted, we hold that the district court’s deci judge parties trial informed the sion does not rise to an of abuse discret reporters who free-lance were transcribe ion.8 forty-five minutes of Johnson’s testimo- ny and three of testimony hours Croft’s Ill light dilemma, were unavailable. In of this We affirm the conviction of William judge the trial that: reasoned knowingly unlawfully Croft for con- sequester “I think to jury a for several verting, a of value” days in inappropriate. this matter is I EPA, of the in violation of 18 U.S.C. 641. publicity also believe that because be, may very there well we DUMBAULD, Judge, Senior District con- certainly I wouldn’t want them or think curring. it would not be towise have them outside I solely concur on the basis of stare sequestration or six five or three my judgment decisis. 18 U.S.C. 641 many or four or how days might take interpreted has been in this Circuit as cov- up to round the transcripts____” ering per- “intentional a conduct which Accordingly judge the trial informed the son either misappropriates or obtains a jury reporters that the free-lance were una- wrongful advantage government from “that it vailable and would not be in order property.” U.S. v. Bailey, F.2d appropriate preparation nor to await the (7th Cir.1984). quoted If the words transcripts.” that, judge these added the statute I should have no trou- jurors, you requested are to render “[a]s ble at all. But I integra strongly as res your upon your verdict based recollection they meaning doubt that same given of all the which has been by Congress words used in 18 U.S.C. provid- all the exhibits which have been embezzles, steals, pur- 641: “Whoever ed.” loins, or knowingly to his converts use ... record, voucher, The law is in any money thing well-established guilty this circuit “it within discretion value of the United States” is of a (Italics portions of the trial court whether to read supplied). interpre- crime. the On transcript jury provision trial generally back to at its tation of this see Moris- Kuta, request.” U.S., 246, 272, v. sette U.S. (7th Cir.1975), 96 L.Ed. 288 So substan- L.Ed.2d 385 tial an extension conduct condemned Times, public page, Capitol 8. The record reveals that was of this trial headline article in the Madison, subject importance newspaper. had been the front- local Wisconsin However, reasoning is made this course of ordinarily to be ought as criminal by judi- previously quoted lan- than rather foreclosed only by Congress, Bailey, I conform guage from cial construction. previously established this Cir- precedent charges defendant indictment cuit. ser- conversion wrongful and unlawful de- vices, performed to wit the labor (testing advantage wa-

fendant’s financial govern- paid by samples) by persons

ter different funds to work

ment tissues). ob- Defendant thus

(testing cattle indirectly, advantage, wrongful

tained a property, wit government helpers. pay defendant’s

funds used to of services conversion But I doubt whether LEWIS, Ray Plaintiff-Appellant, § 641, are because services is a violation since the 13th amend- property, least at slavery. ment abolished LOCAL UNION NO. 100 OF THE LA- Utility Sales As noted in Contractor BORERS’ INTERNATIONAL UNION Co., Corporation, Inc. v. Certain-Teed AMERICA, AFL-CIO, OF NORTH De- (7th Cir.) interpretation fendant-Appellee. the case to the Government favorable No. 83-3095. bar a novel form of would seem to be Appeals, United States Court of dogma “liberty of con- discredited now Seventh Circuit. right. Roscoe property tract” 95-96, (1959) I, Pound, Jurisprudence Argued June 1984. As Holmes remarked 425. Justice 18, 1984. Decided Dec. “By calling a subject: business you land ... make it seem like ‘property’ may no doubt

An established business commonly is pecuniary value and against unjusti-

protected by various law you give it injuries. But cannot

fied calling it a definiteness of contour conduct____” It

thing. is course Corrigan,

Truax (1921). 66 L.Ed.

S.Ct. may con-

Similarly, of services conversion misconduct, activity, or wrongful

stitute property. obligation, but

breach “by calling property it

You cannot make thing.” therefore, charged, is not

The offense §of Un- proscriptions

covered statute, de-

der construction of stand, for it cannot

fendant’s conviction con-

elementary cannot be that a defendant charged in the for an offense not

victed States, 361

indictment. Stirone 4 L.Ed.2d

Case Details

Case Name: United States v. William A. Croft

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Feb 12, 1985

Citation: 750 F.2d 1354

Docket Number: 83-3168

Court Abbreviation: 7th Cir.