U.S. v. Gartmon

• Decision Date: 14 July 1998
• Docket Number: No. 96-3102,96-3102
• Parties: UNITED STATES of America, Appellee, v. Richard Lamont GARTMON, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1015

146 F.3d 1015

331 U.S.App.D.C. 74

UNITED STATES of America, Appellee, v. Richard Lamont GARTMON, Appellant.

No. 96-3102.

United States Court of Appeals,

District of Columbia Circuit.

Argued Sept. 9, 1997.

Decided July 14, 1998.

Appeal from the United States District Court for the District of Columbia (No. 95cr00271-01).

Paul L. Knight, appointed by the court, argued the cause and filed the briefs for appellant.

James E. Boasberg, Assistant U.S. Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, John R. Fisher, Roy W. McLeese, III, Katherine Winfree, and Douglas F. Gansler, Assistant U.S. Attorneys, were on the brief.

Before: EDWARDS, Chief Judge, HENDERSON and GARLAND, Circuit Judges.

GARLAND, Circuit Judge:

Appellant Richard Gartmon was convicted of interstate transportation of securities obtained by fraud and of money laundering in connection with a scheme to defraud the George Washington University Health Plan. Gartmon challenges his convictions on the grounds that: (1) the trial court improperly admitted evidence of his physical and verbal intimidation of a confederate; (2) the prosecution made improper statements during closing arguments; (3) the trial court erred in not declaring a mistrial after federal agents spoke with an excused alternate juror who subsequently was re-empaneled; and (4) the evidence was insufficient to establish venue in the District of Columbia on most of the money laundering counts. He also contends, and the government agrees, that the sentence he received on the money laundering counts exceeds the maximum permitted by statute. We affirm Gartmon's convictions against all of his challenges and remand the case for correction of the sentence.

I

On December 11, 1995, a grand jury in the District of Columbia indicted Gartmon, Donna Rouse, and Pamela Glascoe on charges of interstate transportation of securities taken by fraud, in violation of 18 U.S.C. § 2314, and of money laundering, in violation of 18 U.S.C. § 1956(a)(1). ¹ Gartmon and Rouse proceeded to trial, while Glascoe pled guilty and testified for the United States.

According to the government's evidence, Pamela Glascoe first met Richard Gartmon in November 1994. At the time, Glascoe worked as a secretary in the marketing and sales department of the George Washington University Health Plan (GWUHP or George Washington), a health maintenance organization located in Bethesda, Maryland. Among other activities, Glascoe's department sponsored various health-related special events.

Gartmon and Glascoe soon began dating. The morning after their first date, Gartmon asked Glascoe for money to invest, and shortly before Christmas she gave him $850. When she asked him to return some of the money in order to buy her daughter Christmas presents, he told her she was not a "woman of execution" and asked her whether there was a way she could get more money for him. Glascoe then told Gartmon about the special events GWUHP sponsored, and Gartmon proposed the idea of a "hair show"--a competition between hair salons. When Glascoe was unable to secure GWUHP's sponsorship of such an event, Gartmon again criticized her failure of "execution." On her own, Glascoe then submitted a forged request to GWUHP for a $12,500 check, payable to Gartmon, for a fictitious "run-a-thon." George Washington's finance department cut the check and Glascoe delivered it to Gartmon.

Although Glascoe told Gartmon she did not want to submit any more fraudulent check requests to GWUHP, in early January he again told her he needed money to invest. Gartmon provided the names of suggested payees including codefendant Rouse--all former or current girlfriends of his, with the exception of one payee who was a cousin--and Glascoe forged the authorizing signatures on the check requests. After the initial "run-a-thon" check, Glascoe submitted eight more check requests from January to March 1995, in amounts ranging from $3,600 to $8,600. After receiving the checks, she delivered them to Gartmon, who in turned delivered them to the payees. The payees cashed the checks--one at a bank in the District of Columbia, the rest at banks in the suburbs--and gave the money to Gartmon.

Gartmon and Glascoe also developed a second scheme to defraud George Washington. Gartmon procured blank invoices from a printing company called Underground Printing, and Glascoe filled out and submitted the invoices requesting payment from George Washington for the performance of fictitious printing services. Pursuing this scheme from January to March, 1995, Glascoe obtained eight additional GWUHP checks, in amounts ranging from $16,825.80 to $84,603.40. At Gartmon's instruction, Glascoe made Rouse the payee on all of the checks. Glascoe delivered the checks to Gartmon, and all were deposited in a bank account in Rouse's name. One of the checks was deposited in the District of Columbia; the rest were deposited in the suburbs. All of the GWUHP checks involved in both schemes were drawn on an account GWUHP maintained with Riggs National Bank of Washington, D.C., which processed all checks cashed outside of the District of Columbia at its operations center in the District.

In late February 1995, in the midst of these schemes, Glascoe called Gartmon from work and told him she did not want to continue defrauding her employer. Gartmon asked her to leave work and come to his house because he was sick and needed medicine. According to her testimony, when she arrived and entered his bedroom, Gartmon "told me to take off my clothes and lay down in the bed with my head at the foot of the bed.... [H]e ... told me to open up my legs and he put a gun up my vagina.... He told me that I will listen to everything he says and do as he says." Trial Tr. 353-54 (Mar. 14, 1996). Thereafter, Glascoe continued to submit fraudulent check requests to GWUHP.

Gartmon used the money obtained from George Washington to purchase a hair salon, three sports cars, and a Jacuzzi and gazebo for his house--putting title in the names of other people or using checks drawn on the Rouse account. He also used two Rouse checks to loan $30,000 to an acquaintance, Sandra Yates, in exchange for cash repayment (with $4,500 in interest) within two months. Some time later, Yates met with Gartmon in a parking lot to discuss another loan. He told her to get in his car, and then drove away so quickly as to frighten her. When they reached Gartmon's home, he asked her to lift her skirt so he could determine whether she was wearing a "wire" for recording the conversation. He then warned her that if she were setting him up, he would kill her.

In March 1995, George Washington fired Glascoe after discovering that she was forging check requests. After speaking with the FBI, Glascoe agreed to tape-record telephone conversations with Gartmon. In the taped conversations, Gartmon implicated himself and used profane and abusive language. Eight of the conversations were admitted into evidence and played to the jury.

Gartmon did not testify in his own behalf. Instead, he called two employees from the hair salon he purchased, who testified that in the spring of 1995 they recalled meeting with a woman from GWUHP regarding health insurance. Gartmon also called a comedian who testified that he performed at a hair show in Maryland in late 1994 or early 1995, and that he heard the show was sponsored by GWUHP. Finally, Gartmon called his mother and sister to testify that they had seen Glascoe in the presence of three of Gartmon's children. The latter testimony was offered to impeach Glascoe who had testified that she thought Gartmon had only one child. In closing argument, defense counsel contended that Gartmon did not know Glascoe had obtained the GWUHP checks by fraud, and that Glascoe perpetrated the fraud on her own in order to benefit from the money Gartmon received.

II

Gartmon challenges the trial court's admission of Glascoe's testimony regarding the gun incident in his bedroom, and its admission of the telephone conversations tape-recorded by Glascoe. Admission of this evidence, he contends, violated Federal Rule of Evidence 403, which states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." The standard of review applicable to these determinations by the district court is abuse of discretion. See Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 647 n. 1, 651 n. 7, 136 L.Ed.2d 574 (1997). It is a standard we apply "most deferentially." United States v. Rezaq, 134 F.3d 1121, 1137 (D.C.Cir.1998), petition for cert. filed, Rezaq v. U.S., No. 97-9019 (May 7, 1998). We find no such abuse here.

A

With respect to the gun incident, Gartmon contends both that the court never conducted any balancing of the incident's probative value and prejudice, and that if it had, admission of Glascoe's testimony would have come out on the short end of such a balance.

Gartmon's first contention is wrong on the facts because the district court plainly did conduct a balancing. Prior to trial, Gartmon filed a motion in limine seeking to exclude this evidence on the ground that it violated Rule 403, as well as on the ground that it violated Federal Rule of Evidence 404(b), which bars evidence of other crimes offered to prove a defendant's character "in order to show action in conformity therewith." The district court conducted a hearing, which explored both the Rule 404(b) question and the question of the incident's probative value and potential prejudicial effect under Rule 403. Citing our decision in United States v. Allen, 960 F.2d 1055, 1058 (D.C.Cir.1992), the district court ruled that the evidence did not fall within the coverage of Rule 404(b) because it was not an "other crime," but instead was "inextricably intertwined" with the conduct charged in the indictment. See Mem. Order at 2, 6. ² With respect...