U.S. v. Wingate

• Decision Date: 05 November 1997
• Docket Number: No. 96-4035,96-4035
• Citation: 128 F.3d 1157
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dale K. WINGATE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1157

128 F.3d 1157

UNITED STATES of America, Plaintiff-Appellee, v. Dale K. WINGATE, Defendant-Appellant.

No. 96-4035.

United States Court of Appeals,

Seventh Circuit.

Argued Sept. 19, 1997.

Decided Nov. 5, 1997.

Richard C. Pilger (argued), Department of Justice Criminal Division, Public Integrity Sect., Washington, DC, for Plaintiff-Appellee.

M. Jacqueline Walther (argued), Kielian & Walther, Chicago, IL, George P. Lynch, Lisle, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

Dale Wingate, a Special Agent employed by the United States Immigration and Naturalization Service (INS), was indicted for depriving the INS of his honest services. Wingate was accused of providing unauthorized governmental benefits to persons who previously, or might in the future, assist Wingate to adopt children. A jury convicted Wingate on one count each of mail fraud, wire fraud, and harboring an illegal alien, and two counts of transporting an illegal alien. Wingate appeals his conviction; we affirm.

I.

The facts drawn from the record in this jury trial and all reasonable inferences therefrom we view in a light most favorable to the government. United States v. Katalinich, 113 F.3d 1475, 1480 (7th Cir.1997). Dale Wingate began his career in the INS in 1976 as a Special Agent, and during his career at the INS, he was promoted to Special Agent in the Chicago office of the fraud unit of the investigation branch of the INS. Prior to that, he served in the Vietnam War, and remains an army reservist. Special Agents are law enforcement officials: they carry badges; they work with informants and other information sources to discover illegal aliens; and they make arrests of persons violating U.S. immigration law.

In 1989, Wingate and his second wife, Susan, went to Lima, Peru, and adopted twin girls from a Peruvian national named Martha Oncebay. The Wingates then returned to the United States with their new daughters. Two years later, Oncebay was expecting another child, and the Wingates provided her with a round-trip airline ticket to come to the United States. On October 20, 1991, Susan Wingate admitted Oncebay to an Indiana hospital. On October 21, 1991, Wingate arrived in Indiana from California, where he was serving in the military due to Desert Storm, and went to the hospital. He showed his badge as identification, represented to the admitting clerk that his wife Susan was having a baby, and sought insurance coverage for the delivery. The hospital later discovered that Oncebay, not Susan Wingate, was having the baby, and changed the medical records to reflect this. That same day, Oncebay delivered a baby boy. The Wingates adopted this baby.

After the adoption Oncebay stayed in the United States, residing in Miami, Florida for a time. In July 1993, after her visa had expired, she returned to Indiana, where Wingate provided additional help to her. He and his family members transported Oncebay to her daily job at the Oneida Mexican Restaurant in Valparaiso, Indiana. Without proper authorization, Wingate provided Oncebay with a Voluntary Departure Notice, known as an I-210 form, which purported to authorize her to remain in the United States until July 11, 1994. Oncebay lived with the Wingates for at least part of the summer in 1993.

While in Miami, Oncebay had obtained a restricted Social Security card that did not authorize her to work in the United States. During the summer of 1993, Wingate accompanied Oncebay to the Social Security Administration Office in Hammond, Indiana to obtain a replacement Social Security card. Wingate displayed his badge to an SSA employee, and stated that Oncebay was entitled to a new Social Security card authorizing her to work. ¹ The agent processed the request for the replacement Social Security card, which included the provision that Oncebay was authorized to work in the United States. The agent then directed the card to be mailed in Oncebay's name to the Wingates' home address. Oncebay was not legally authorized to work, and without the replacement card, no employer could hire her.

In late summer 1993, while on a family vacation, Wingate transported Oncebay to Moline, Illinois, in an attempt to secure employment for her at the IBP meat processing plant. Upon arriving in Moline, the Wingates and Oncebay met with Father Manuel Munoz, a Catholic priest. Many of Munoz's congregation worked at IBP. Wingate, Oncebay, and Munoz all went to IBP, but only Wingate and Oncebay actually went to the interview.

Wingate filled out the application for Oncebay, filling in the information that he knew and asking her for other information. Randy Kundert, the employment manager, questioned the INS documentation and work authorization papers which Wingate had previously provided to Oncebay. At that point, Wingate identified himself as a Special Agent of the INS, displayed his badge, and represented that Oncebay was a legal alien and authorized to work in the United States. After completing the application process and interview, Wingate left Oncebay with Munoz and returned to Indiana. Shortly thereafter, Munoz called the Wingate residence and told Susan that Oncebay was not hired by IBP. Oncebay then returned to Chesterton, Indiana.

Because Kundert remained suspicious of the documentation produced by Oncebay and Wingate, he contacted the INS. This led to Oncebay's arrest and the eventual indictment of Wingate on five counts: wire fraud (the telephone call from Munoz to the Wingate residence); mail fraud (the mailing of the Social Security card to Oncebay at Wingate's address); harboring an illegal alien; and two counts of transporting an illegal alien.

Wingate also abused his authority with regard to other illegal aliens. In early March, 1993, Wingate improperly provided Marcela Burgos, an Ecuadorian national, a memorandum stating that she was authorized to remain and work in the United States. On September 8, 1993, Burgos faced deportation proceedings. Wingate convinced the attorney prosecuting the deportation that Burgos was an INS informant, which she was not. ² The attorney requested that the immigration judge close the case without deporting Burgos, which the judge did. After Wingate and Burgos left the courtroom, Wingate commented that he wanted to bring some girls from Ecuador.

Wingate also abused his position and influence with the INS with respect to Jorge Diaz, a Peruvian national. Diaz entered the United States illegally in 1989, and was subsequently arrested and scheduled for deportation. Diaz obtained Wingate's business card through a friend with the Peruvian juvenile police, who got the card around the time Wingate adopted two children in Peru. Diaz contacted Wingate, and Wingate obtained a work authorization card for Diaz. testified that he did not provide the information attributed to him and found in Diaz's informant records prepared by Wingate. Nevertheless, Diaz's work authorization card was renewed from 1990 until 1993.

Attorney Roderick F. Mollison represented Wingate from the beginning of the case through his first trial. Prior to the first trial, Mollison entered into a written stipulation with the government which stated that the INS's records would show that Oncebay did not claim to be a U.S. citizen, that she entered the United States from Peru on October 6, 1991, on a visitor's visa for the purpose of pleasure, and that the visa would expire on April 5, 1992. This stipulation was entered without objection in the first trial. The jury in the first trial deadlocked, and the district court declared a mistrial.

Wingate retained new counsel, George P. Lynch, for the second trial. Prior to the second trial, the defendant brought a motion to dismiss the indictment because it was barred by the Double Jeopardy clause of the Fifth Amendment. He claimed that the INS had already punished him by suspending him without pay, and that a criminal conviction would be a second punishment for the same offense. The district court denied the motion, holding that INS's suspension and termination of Wingate after the indictment was remedial, and did not constitute punishment in the constitutional sense. At the end of the first day of the second trial, Wingate's attorney objected to the entry of the stipulation regarding the contents of the INS file on Oncebay. The district court held its ruling in abeyance overnight to allow Wingate's attorney to research the question of why Wingate should be released from the stipulation. Counsel did not offer any further argument the next morning, and the district court declined to release Wingate from the stipulation.

The jury convicted Wingate on all counts, and the district court sentenced Wingate to 15 months' incarceration and two years' supervised release on each count, to run concurrently. Wingate appeals, claiming the district court abused his discretion in admitting the stipulation, that the mailing and telephone call did not further the scheme alleged, and that the conviction is barred by the Double Jeopardy clause. Wingate does not challenge the sufficiency of the evidence establishing the one count of harboring an alien or the two counts of transporting an alien.

II.

A.

At trial, Wingate argued that entering the stipulation denied him the right to confront witnesses under the Sixth Amendment. The district court allowed the stipulation to be entered over Wingate's objection. After trial, Wingate moved for post-trial relief and presented an affidavit stating that Mollison entered into the stipulation despite Wingate's objection to it.

"[O]nce made, a stipulation is binding unless relief from the stipulation is necessary to avoid 'manifest injustice' or the stipulation was entered into through inadvertence or based on an erroneous view of the facts or law." Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir.1989). The district court's decision to hold the...