U.S. v. Wainright, 02-3819.

• Decision Date: 09 December 2003
• Docket Number: No. 02-3819.,02-3819.
• Parties: UNITED STATES of America, Appellee, v. Jerry Wade WAINRIGHT, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

351 F.3d 816

UNITED STATES of America, Appellee, v. Jerry Wade WAINRIGHT, Appellant.

No. 02-3819.

United States Court of Appeals, Eighth Circuit.

Submitted: September 9, 2003.

Filed: December 9, 2003.

COPYRIGHT MATERIAL OMITTED

Robert L. Depper, Jr., El Dorado, AR, argued, for appellant.

Mark W. Webb, Asst. U.S. Attorney, Fort Smith, AR, argued, for appellee.

Before LOKEN, Chief Judge, and McMILLIAN and HANSEN, Circuit Judges.

McMILLIAN, Circuit Judge.

Jerry Wade Wainright ("defendant") appeals from a final judgment entered in the United States District Court¹ for the Western District of Arkansas upon a jury verdict finding him guilty of interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314, 2. The district court sentenced him to 24 months imprisonment, three years supervised release, restitution in the amount of $15,016.92,² and a special assessment of $100.00. For reversal, defendant argues that the district court erred in (1) admitting an investigation summary (Government Exhibit 40) into evidence, (2) admitting defendant's bank statements into evidence (Government Exhibits 28, 30, 31, 32, 34, and 36), (3) denying defendant's motion for judgment of acquittal, (4) calculating loss in regard to defendant's total offense level, and (5) applying a two-level enhancement for more than minimal planning. For the reasons discussed below, we affirm the conviction and sentence.

JURISDICTION

Jurisdiction in the district court was proper pursuant to 18 U.S.C. § 3231. Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The notice of appeal was timely filed pursuant to Rule 4(b) of the Federal Rules of Appellate Procedure.

BACKGROUND

Between December 1995 and December 1997 defendant contracted to cut and haul timber in Arkansas and Louisiana for several different landowners or managers. These contracts were on a pay-as-cut basis. Pay-as-cut means a per unit price is agreed upon and the contractor pays as he or she cuts and hauls the timber, usually on a weekly or bi-weekly basis.

Under the Government's theory of the case, defendant would cut particular tracts of timber on a pay-as-cut basis and would agree to pay for all loads of timber removed from said tracts on a weekly basis. Defendant agreed to haul the loads to specific mills, but would cause some of the loads to be delivered to unauthorized mills and turn in the loads under his name or someone else's name, instead of the name of the actual owner. Defendant would use the name of a legitimate timber dealer or timber company to disguise the source and true owner of the timber so that he would receive the full value for the timber. Defendant received direct payment from the timber mills for all the loads turned in under his contracts. Defendant would then give the landowners or timber managers checks and the scale tickets for timber he represented he had cut and hauled from timber tracts. As a result of his scheme, defendant received in excess of $350,000.00.

In October 1997, Jim Baldwin, an investigator with the Louisiana Department of Agriculture and Forestry, received a timber theft complaint from Mark David Burnside regarding property he owned in Louisiana. Burnside stated that in November 1996 he hired defendant to log some of his property on a pay-as-cut basis. Defendant began working on Burnside's property in November 1996 and concluded in January 1997. Burnside claimed that defendant did not pay him for timber he removed from Burnside's property. Baldwin collected the scale tickets and checks that Burnside received from defendant. Burnside pointed out that one of the scale tickets defendant gave him had the name Deltic Land and Timber Company ("Deltic") on it, which led Burnside to believe the timber did not come from his land.

During November and December 1997, Baldwin went to various mills and wood-receiving facilities in Louisiana and Arkansas and found tickets that had Burnside's name or address on them. Baldwin also found tickets that had been turned in with defendant's name and which had been paid in total to defendant. Baldwin and FBI Special Agent Charles Fields began a joint investigation into defendant's logging activities from December 1995 through December 1997. They contacted numerous landowners, mills, wood-receiving facilities, and wood dealers in Arkansas and Louisiana. The investigators obtained scale tickets, settlement sheets, checks, and logging records involving defendant, his company Wainright Trucking, and Circle J Logging. The investigators were able to identify 541 loads that had been stolen by defendant. These stolen loads had a value of $369,329.07. Of the 541 stolen loads, 157 had been transported in interstate commerce and had a value of $107,977.26.

In January 2002, a federal grand jury charged defendant in a superceding indictment with six counts of mail fraud and two counts of interstate transportation of stolen property. Defendant's jury trial commenced on June 10, 2002. During the trial, the district court admitted into evidence Government Exhibit 40, a summary of defendant's logging activities prepared by Baldwin over defendant's objection. The district court also admitted into evidence Government Exhibits 28, 30, 31, 32, 34, and 36, which were summaries of defendant's bank accounts in a spreadsheet format. These bank account summaries, admitted over defendant's objections, showed that defendant had written several checks with insufficient funds. The district court denied defendant's motion for judgment of acquittal.

The jury found defendant guilty of interstate transportation of stolen property, in violation of 18 U.S.C. §§ 2314, 2 (count 7). The jury found defendant not guilty on six counts of mail fraud and an additional count of interstate transportation of stolen property. The presentence report recommended an 11-level enhancement in offense level because the loss was in excess of $350,000.00 and a 2-level enhancement for more than minimal planning. Defendant objected to the enhancements. The district court denied the objections. The district court sentenced defendant to 24 months imprisonment, three years supervised release, restitution in the amount of $15,016.92, and a special assessment of $100.00. This appeal followed.

DISCUSSION

Logging Summary

Defendant argues on appeal that the district court abused its discretion in admitting Government Exhibit 40, a summary of defendant's logging activities from December 1995 to December 1997 containing information from already admitted evidence. The summary included the date, time, product, mill, landowner, location or origin of loads, and whether the landowner had been paid. Defendant objected to Government Exhibit 40 at trial. The district court admitted the summary and gave a limiting instruction, pursuant to United States v. Jennings, 724 F.2d 436 (5th Cir.), cert. denied, 467 U.S. 1227, 104 S.Ct. 2682, 81 L.Ed.2d 877 (1984). A summary must be accurate and nonprejudicial.³ See United States v. Modena, 302 F.3d 626, 633 (6th Cir.2002), cert. denied, 537 U.S. 1145, 123 S.Ct. 950, 154 L.Ed.2d 845 (2003). Defendant argues that Government Exhibit 40 impermissibly contained Baldwin's conclusions and assumptions as to payments. Defendant also argues that the prejudicial nature of a summary cannot be overcome by a limiting instruction.

"The use of summary charts, diagrams, and other visual aids is generally permissible in the sound discretion of the trial court." United States v. Preciado, 336 F.3d 739, 745 (8th Cir.2003) (quoting United States v. Crockett, 49 F.3d 1357, 1360 (8th Cir.1995)). Thus, we review the admission of the summary under an abuse of discretion standard.

Summary exhibits that fairly summarize the evidence are authorized by Rule 1006 of the Federal Rules of Evidence.⁴ See United States v. Orlowski, 808 F.2d 1283, 1289 (8th Cir.1986), cert. denied, 482 U.S. 927, 107 S.Ct. 3210, 96 L.Ed.2d 697 (1987). Summary charts may be used when they help in understanding testimony already introduced and the preparing witness is subject to cross-examination with all documents used to prepare the summary. See United States v. Caswell, 825 F.2d 1228, 1235 (8th Cir.1987). Charts or summaries may include assumptions and conclusions, but said assumptions and conclusions must be based upon evidence in the record. See United States v. Lewis, 759 F.2d 1316, 1329 n. 6 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). When a district court sends a chart or diagram admitted under Rule 1006 to a jury, a limiting instruction is appropriate. See United States v. Possick, 849 F.2d 332, 339 (8th Cir.1988).

At trial, Baldwin explained in detail how he developed the summary from the voluminous records of the various victims, mills, wood-receiving facilities, and wood dealers in Arkansas and Louisiana. These voluminous records had previously been introduced into evidence. Baldwin also explained how he determined whether a load was stolen. Baldwin's summary was fair, accurate, correct and nonmisleading. Defense counsel cross-examined Baldwin about the summary. The district court gave the jury a limiting instruction on the use of the summary. Therefore, upon careful review, we cannot say that the district court abused its discretion in admitting the summary.

Bank Records Summaries

Defendant also argues that the district court abused its discretion in admitting Government Exhibits 28, 30, 31, 32, 34, and 36, which were summaries of defendant's bank records put into a spreadsheet format. These exhibits were prepared from Government Exhibits 27, 29, 33, and 35, which had previously been introduced into evidence by stipulation. Defendant argued that some of the bank records noted insufficient fund checks, and that such notations made the summaries more prejudicial than probative. The district court denied defendant's objection and admitted the exhibits. Defendant argues that jurors...