527 F.3d 1235 (11th Cir. 2008), 06-15318, United States v. Williams

Docket Nº:06-15318.
Citation:527 F.3d 1235
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alma WILLIAMS, Defendant-Appellant.
Case Date:May 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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527 F.3d 1235 (11th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alma WILLIAMS, Defendant-Appellant.

No. 06-15318.

United States Court of Appeals, Eleventh Circuit.

May 16, 2008

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James G. Tunison, Jr. , John Gee Edwards , Valdosta, GA, for Williams.

Dean S. Daskal , Columbus, GA, for U.S.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT , HULL and WILSON , Circuit Judges.

WILSON , Circuit Judge:

Alma Williams (“Williams" ) appeals her convictions for five counts of wire fraud and one count of theft concerning programs receiving federal funds [hereinafter “federal funds theft" ], in violation of 18 U.S.C. §§ 1343 and 666 , and the resulting 33-month sentence imposed by the district court. On appeal, Williams argues that her convictions violate the Double Jeopardy Clause. Williams also argues that the evidence at trial was insufficient to support a conviction, and that the district court constructively amended the indictment, improperly admitted evidence, and improperly applied three sentencing adjustments. For the following reasons, we affirm Williams's convictions, but vacate her sentence and remand this case back to the district court for resentencing consistent with this opinion.

I. BACKGROUND

Williams was the Executive Director and Chief Financial Director of Eastside Training Academy (“ETA" ) in Valdosta, Georgia. ETA, a non-profit organization incorporated in the State of Georgia, primarily provides pre-kindergarten child care and infant daycare. Williams's husband, Bunnis Williams, was the Chief Executive Officer and President of the Board of Directors of ETA.

In late 2000, Williams agreed to manage two federal programs, the Foster Grandparent Program and the Retired Senior Volunteer Program, under ETA's sponsorship. To that end, Williams applied for and received federal grants from the Corporation for National and Community Service (“CNCS" ). CNCS is an independent federal agency that administers and dispenses federal grant funds to support local programs fostering volunteer and community service activities. CNCS granted funds to ETA for the limited purpose of organizing senior volunteers to engage in community service in schools, hospitals and museums.

During 2001, CNCS wired approximately $320,000 in federal grants to ETA's account for its management of the Foster Grandparent Program and the Retired Senior Volunteer Program. ETA's use of the grant funds was limited to the direct costs of managing these programs, including mileage reimbursements and small stipends to low-income senior volunteers, and salaries for a full-time project director, full-time coordinators, and a part-time bookkeeper. CNCS also authorized ETA to spend grant funds on certain administrative overhead costs that CNCS had pre-approved and built into the budgets for each program. Grant rules prohibited service providers such as ETA from using

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grant funds to pay for administrative overhead or indirect costs not pre-authorized by CNCS through a separate line-item budget.

As we describe in further detail later in this opinion, ETA spent federal grant money on unauthorized items such as Williams's salary, checks made payable to Bunnis Williams, general ETA operating expenses, rent and utilities for facilities not being used by the federal grant programs, and plumbing work for one of Williams's separate rental properties. Despite CNCS restrictions, ETA spent approximately one-third, or $101,000, of grant funds on unauthorized expenditures.

A federal grand jury charged Williams and her husband with seven counts of wire fraud, one count of federal funds theft, and aiding and abetting each other thereto, pursuant to 18 U.S.C. §§ 1343 , 666 , and 2 . At trial, the government showed that Williams had primary authority over ETA finances and that she had direct control over the bookkeepers who managed the federal grant funds. The evidence showed how the bookkeepers, following Williams's orders, charged unapproved, personal expenditures to the federal grant programs using a percentage-based formula that Williams devised. In support of her good faith defense, Williams testified that she was unaware that her use of the grant funds was improper and that she did not intend to defraud the government. The jury convicted Williams on five counts of wire fraud and on the federal funds theft count, but it acquitted Bunnis Williams of all charges.

To determine Williams's advisory guideline sentence, the district court applied four upward adjustments to Williams's base offense level: (1) a two-level aggravating role adjustment; (2) a two-level abuse of trust adjustment; (3) a two-level obstruction of justice adjustment; and (4) an eight-level adjustment for the amount of loss. After applying these adjustments, the district court sentenced Williams to thirty-three months imprisonment, the bottom of the applicable guidelines range.

II. DISCUSSION

A. Double Jeopardy

Williams first contends that her separate convictions for wire fraud and federal funds theft violate the Double Jeopardy Clause of the Fifth Amendment because the factual basis of her theft conviction is “part and parcel" of the scheme to defraud underlying her conviction for wire fraud. She also asserts that her convictions on multiple counts of wire fraud constitute double jeopardy.

We review claims of constitutional error de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.2004) . Where a defendant fails to assert a double jeopardy claim before the district court, however, she has forfeited that claim. United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir.2007) (en banc). We nonetheless review such forfeited claims under the plain error standard of Federal Rule of Criminal Procedure 52(b) . Lewis, 492 F.3d at 1222. As the Supreme Court explained in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) , the defendant's “[m]ere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b) ." Id. at 733, 113 S.Ct. at 1777 .

Williams did not raise her double jeopardy arguments to the district court. Although she failed to raise the claims, Williams made no affirmative steps to voluntarily waive them. See Lewis, 492 F.3d at 1221-22 (finding that defendant did not waive, but rather forfeited, double jeopardy claim when raising it for the first time on appeal). Consequently, Williams's failure

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to raise these claims did not result in her intentional relinquishment of a known right, and we review these forfeited claims for plain error.

As a threshold matter, “[w]e will correct a plain error when (1) an error has occurred, (2) the error was plain, and (3) the error affected substantial rights." Lewis, 492 F.3d at 1222. “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings." United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted) (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) ); Lewis, 492 F.3d at 1222 .

We analyze issues of double jeopardy under the test set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) . United States v. Hassoun, 476 F.3d 1181, 1185 (11th Cir.2007) . Under Blockburger, when a single, completed criminal transaction violates two or more criminal statutes, the Double Jeopardy Clause does not shield a defendant against prosecution under one or more of the applicable statutes so long as “each statute requires proof of an additional fact which the other does not ...." Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. The Blockburger test is one of statutory interpretation in which we examine the elements of each offense to determine whether Congress intended to authorize cumulative punishments. Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981) ; Hassoun, 476 F.3d at 1185 .

1. Convictions for Wire Fraud and Federal Funds Theft

Under 18 U.S.C. § 1343 , wire fraud requires proof beyond a reasonable doubt that (1) the defendant participated in a scheme or artifice to defraud; (2) with the intent to defraud; and (3) used, or caused the use of, interstate wire transmissions for the purpose of executing the scheme or artifice to defraud.1 Under 18 U.S.C. § 666 , federal funds theft requires proof beyond a reasonable doubt that (1) the defendant was an agent of an organization; (2) the organization receives more than $10,000 from a federal grant program in one year; (3) the defendant embezzled, stole, obtained by fraud, or otherwise without authority knowingly converted or intentionally misapplied property valued at $5,000 or more that was under the organization's care, custody, or control.2

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The elemental analyses of §§ 1343 and 666 demonstrate that Williams's convictions for wire fraud and federal funds theft satisfy the Blockburger test. Wire fraud requires neither proof of the defendant's agency relationship to an organization receiving federal funds, nor proof of theft. Federal funds theft requires no proof of the use of interstate wire transmissions during a purported scheme or artifice to defraud. Contrary to the contention implicit in Williams's argument, the use of wires in interstate commerce is a...

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