United States v. Turner

• Decision Date: 12 May 1999
• Docket Number: No. 99-1134,N,99-1134
• Citation: 189 F.3d 712
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLEE, v. ROBERT TURNER, APPELLANT. UNITED STATES OF AMERICA, APPELLEE, v. GUINN KELLY, APPELLANT. o. 99-1136 Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 712

189 F.3d 712 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLEE, v. ROBERT TURNER, APPELLANT.

UNITED STATES OF AMERICA, APPELLEE, v. GUINN KELLY, APPELLANT.

No. 99-1134, No. 99-1136

U.S. Court of Appeals, Eighth Circuit

Submitted: May 12, 1999

Filed August 12, 1999

Rehearing and Rehearing En Banc

Denied Sept. 20, 1999

Appeals from the United States District Court for the Eastern District of Missouri. [Copyrighted Material Omitted] Before Loken, Hansen, and Morris Sheppard Arnold, Circuit Judges.

Hansen, Circuit Judge.

A jury convicted former St. Louis, Missouri, police officers Robert Turner and Guinn Kelly on charges stemming from a scheme to defraud a low-income housing project funded by the United States Department of Housing and Urban Development (HUD). The district court¹ sentenced Turner to 18 months of imprisonment, and Kelly received a 24-month sentence. Turner and Kelly appeal their convictions, and we affirm.

I. Background

Cochran Gardens is a low-income housing project located in St. Louis, Missouri, that receives substantially all of its funding from the federal government via HUD. The housing project supplemented its security forces with off-duty police officers. One of the officers hired by Cochran Gardens to supplement its security forces was Guinn Kelly, a sergeant with the St. Louis Police Department. In September 1993, Robert Turner, Kenny Givens, and Rodney Brunson, all of whom were also St. Louis police officers, joined Kelly at Cochran Gardens. Turner and Givens were also partners in the intelligence division of the St. Louis Police Department. Although many other off-duty policemen worked at Cochran Gardens, Kelly, Turner, Givens, and Brunson comprised a special, plainclothes unit charged with investigating drug trafficking, weapons violations, and gathering intelligence. Almost immediately after Kelly, Turner, Givens, and Brunson started working together at Cochran Gardens, the four men began submitting false time cards that overstated the number of hours they worked at the housing project.

The scheme was uncovered in the Spring of 1994, and shortly thereafter Brunson pleaded guilty and agreed to cooperate with authorities investigating the matter. A federal grand jury eventually indicted Kelly, Turner, and Givens, and the three men stood trial together. On the fourth day of the trial, the district court declared a mistrial with respect to all of the defendants when it appeared that Givens's attorney might have to testify to impeach a government witness. After the district court denied defense motions to dismiss the indictment on double jeopardy grounds, Turner, Kelly, and Givens appealed. See United States v. Givens, 88 F.3d 608 (8th Cir. 1996). In that case, we concluded that although a mistrial was manifestly necessary with respect to Givens because it was his attorney who might have to testify, there was no manifest necessity for declaring a mistrial with respect to Turner and Kelly. See id. at 613-14. We held, therefore, that double jeopardy considerations barred a retrial of Turner and Kelly on the charges contained in the indictment. See id. at 614.

After our decision in the first appeal, Givens pleaded guilty and agreed to cooperate with authorities. A superseding indictment was filed against Turner and Kelly, which the defendants moved to dismiss on double jeopardy and res judicata grounds. The district court denied the motion, and, with the exception of one count against Kelly, we affirmed. See United States v. Turner, 130 F.3d 815, 820 (8th Cir. 1997), cert. denied, 118 S. Ct. 2071 (1998).

Turner and Kelly's second trial commenced in late September 1998. Brunson and Givens testified for the government and explained how the four officers clocked each other in and out at Cochran Gardens and submitted false time cards so that they would be paid for work they did not perform. Brunson testified that the men actually worked only about 40 percent of the hours reflected on their time cards. Givens testified that the men were required to be at Cochran Gardens at approximately 10 p. m., but that requirement often conflicted with their police duties because they were frequently assigned to work the 6 p. m. to 2 a. m. shift. According to Givens, "we wanted to keep both [jobs], so we showed up and clocked in anyway and as soon as we had a chance, we'd go back to the police department and work." (Trial Tr. Vol. 2 at 162.)

Aside from the testimony of Brunson and Givens, the government presented substantial documentary evidence showing overlaps between the times Turner and Kelly were on duty with the police department and the times they also claimed to be working at Cochran Gardens. In particular, the government submitted the relevant police department duty rosters and corresponding Cochran Gardens time cards. This evidence showed, for example, that between September 23, 1993, and March 11, 1994, Kelly's time overlapped on some 58 occasions, and Turner's time overlapped on 38 occasions. During one seven day period in December 1993, Kelly's overlaps were so large that it appeared as if he worked an average of 22 hours per day, and that he twice worked more than 24 hours in a single day. The government also presented payroll records showing that Turner and Kelly were paid for the time reflected on their Cochran Gardens time cards.

Turner and Kelly offered various explanations for the overlaps between the police department duty rosters and the Cochran Gardens time cards. For example, the defendants maintained that the police department duty rosters were unreliable because they did not reflect the use of an unofficial form of compensatory time (comp time) that was allegedly used to compensate officers for unpaid overtime. According to the defendants, a police officer could submit an overtime slip, take time off, and then the slip would be destroyed upon the officer's return to work.² Such a practice, if it existed, would undermine the accuracy of the police department duty rosters because the rosters would show that an officer was on duty when in fact he was not. The government, however, offered evidence showing that although the duty rosters were not infallible, they were generally an accurate reflection of the times police officers were on duty. Furthermore, the government offered direct and circumstantial evidence- unrelated to the duty rosters- showing that the defendants did not work at Cochran Gardens all of the hours reflected on the time cards. For example, Givens and Brunson testified that all four men routinely clocked in and then left Cochran Gardens. In fact, the government produced evidence showing that Turner was clocked in at Cochran Gardens even though he was out of town at a football game.

Kelly faced an additional problem in his attempt to establish the unreliability of the police department duty rosters. As a sergeant, Kelly was ineligible for overtime, so he could not claim that he received unofficial comp time in lieu of overtime pay. When pressed on this matter during cross-examination, Kelly offered several, often confusing, explanations. Eventually Kelly claimed that his position with the police department allowed him to come and go as he pleased without permission from any supervisor. (See Trial Tr. Vol. 5-A at 48-50.) Kelly also maintained that Cochran Gardens gave him a secret bonus of 25 hours per week to compensate him for his service to Cochran Gardens when he was not officially on duty at the housing project.

Aside from the asserted unreliability of the police department duty rosters, the defendants also suggested that the time cards did not accurately reflect the hours they worked at Cochran Gardens, and that there was physically no way they could have falsified the time cards. For example, they claimed that the time cards were locked up and out of their control. This argument, however, was seriously undercut by Brunson's and Givens's testimony. Both Brunson and Givens testified that the time cards were not always stored in a secure location, and in any event, Kelly had a key that allowed the men to gain access to the time cards. Brunson further testified that when the men could not get access to the time cards because Kelly was sick, Kelly later recorded the times by hand. Givens testified that he also had a key, and because he lived near Cochran Gardens, he was often tasked with returning to the housing project, early in the morning, to clock the men out.

Although Turner and Kelly testified at trial and maintained their innocence, the jury found both men guilty of multiple counts of making false statements to HUD, in violation of 18 U.S.C. 1001, aiding and abetting Kenny Givens in making false statements to HUD, in violation of 18 U.S.C. 1001 and 2, and stealing HUD funds, in violation of 18 U.S.C. 641. Turner and Kelly both appeal and contest certain evidentiary rulings, as well as the sufficiency of the government's evidence against them. Additionally, Turner contends that he is entitled to a new trial due to several alleged instructional errors, and that Givens's and Brunson's testimony should have been excluded pursuant to 18 U.S.C. 201(c)(2) (antibribery statute).

II. Discussion

A. Cross-Examination of Kenny Givens

During its case-in-chief, the government questioned Kenny Givens about the accuracy of the police department duty rosters. Givens testified that with the exception of a few isolated incidents, the duty rosters accurately reflected the times police officers worked. On cross-examination, Turner's counsel attempted to elicit testimony regarding comp time. In particular, Givens was asked if he knew of a practice whereby an officer would submit an overtime slip, take a day off, and then the slip would be destroyed upon the officer's return. Givens testified that he was not aware of any such practice in the intelligence division, the division where he and Turner were partners. In an attempt to impeach Givens's...