U.S. v. Hickok

• Decision Date: 28 February 1996
• Docket Number: No. 95-1619,95-1619
• Citation: 77 F.3d 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James P. HICKOK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 992

77 F.3d 992

UNITED STATES of America, Plaintiff-Appellee, v. James P. HICKOK, Defendant-Appellant.

No. 95-1619.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1995.

Decided Feb. 28, 1996.

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division, No. 94 CR 84; Rudy Lozano, Judge.

Andrew B. Baker, Jr. (argued), Office of the United States Attorney, Dyer, IN, for U.S.

John Maksimovich (argued), Griffith, IN, for James P. Hickock.

Before BAUER, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

On August 18, 1994, a federal grand jury charged the defendant, James P. Hickok, with one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 371, and two counts of mail fraud, in violation of 18 U.S.C. § 1341. Hickok entered a plea of not guilty to all three charges, and a jury trial commenced on November 7, 1994. Among the Government witnesses at Hickok's trial was Robert DeWitt, the defendant's former business associate and co-conspirator, who testified pursuant to a plea agreement in which he agreed to cooperate with the Government in exchange for a lighter sentence. At the close of the Government's case, Hickok moved for a judgment of acquittal. The court denied the motion, and the defense presented evidence, including Hickok's testimony. The defendant did not renew his motion for a judgment of acquittal at the close of all the evidence and thereafter, on November 9, the jury convicted Hickok on the three counts contained in the indictment. The defendant was sentenced to thirty-three (33) months imprisonment and three years of supervised release on each count, with the prison terms and the periods of supervised release to run concurrently.

Hickok appeals his conviction and his sentence, asserting that the district court: (1) erroneously denied his motion for an acquittal, because there was insufficient evidence upon which to convict him of any of the three counts, and (2) improperly enhanced his offense level by two points, based on a finding that he obstructed justice by committing perjury during his trial. We AFFIRM.

I. BACKGROUND

A. James Hickok and Robert DeWitt 1990-1992

Far from being a dry, dull example of white-collar crime, this case tells the story of how the defendant, James P. Hickok, exploited a business associate, Robert DeWitt, for his own personal gain. It is the story of how DeWitt and Hickok, through a pattern of conduct nearly a year in duration, looted and defrauded the United States Cellular Corporation ("USC" or "the company"), a provider of cellular telephone services headquartered in Chicago, Illinois.

In August of 1990, DeWitt, then twenty-seven years old, assumed the position of "market manager" for USC in Casa Grande, Arizona and the surrounding area. In this capacity, he had substantial responsibility for the company's regional operations and was subordinate only to a handful of top executives within the company. One of DeWitt's first decisions as market manager was to hire the appellant, Hickok, fifty-one years of age, as a salesman, with a base salary of $1,000 a month, plus commissions and other benefits. Hickok's job required him to sign up as many customers as possible for the cellular telephone services provided by USC. ¹ At the time of his hiring, Hickok was provided with a copy of the company's Code of Conduct, and required to acknowledge that he had read and understood the document. The Code of Conduct prohibited, among other things, the unauthorized sale of company equipment or any "misuse or waste [of] Company property, such as by using it or permitting others to use it for personal gain or some other unethical or unlawful purpose."

After a little more than a year of working successfully as a USC salesman, Hickok encountered difficulty meeting his monthly sales quotas and found himself on the verge of being terminated by the company. ² DeWitt averted Hickok's firing by approaching his superiors at USC and suggesting that Hickok be allowed to continue to work with the company as an independent sales agent, rather than as a salaried employee. Under this proposed arrangement, which USC approved, Hickok would no longer work directly for the company; instead, he would sell the services of USC on the company's behalf and receive a commission for each new customer he signed up or "activated." Hickok agreed to this arrangement and resigned from USC in November of 1991, going into business shortly thereafter as Central Arizona Cellular ("CAC"). DeWitt permitted Hickok to use spare office space at USC for the new venture.

In January of 1992, DeWitt approached Hickok and told him that he was experiencing personal financial problems. According to DeWitt, Hickok responded by saying "I have a solution for your problem." Hickok's solution was to pay $1,000 to DeWitt personally if DeWitt would take certain used cellular telephones and equipment belonging to USC and transfer them to Hickok. This equipment (which, according to DeWitt's testimony, was worth approximately $1,800) consisted of demonstration models, trade-ins, and other used or slightly damaged equipment that was not carefully inventoried by USC. Obtaining this equipment cheaply had two advantages for Hickok: first, he could sell the equipment at a profit, and second, he could obtain commissions from USC for "activating" new customers who purchased the equipment. DeWitt agreed to the exchange proposed by Hickok, and brought the equipment to him at CAC. The defendant gave DeWitt an envelope, which DeWitt later discovered contained $1,100 in cash. When DeWitt questioned Hickok about the extra $100, Hickok replied: "Well, go ahead and keep it; I'm sure there will be used phones in the future." DeWitt replied "Yes, you're right." Indeed, this was not the last time that Hickok would take advantage of DeWitt's financial difficulties and his position with USC to obtain equipment and other benefits (e.g., sales commissions) to which he was not entitled. Just a few weeks later, DeWitt transferred a second, smaller quantity of used equipment to Hickok, again receiving cash in exchange.

In March 1992, USC offered DeWitt a transfer to the company's office in Logansport, Indiana and a raise in annual salary of $10,000. This posed a problem for DeWitt because his departure might lead to the discovery of a $9,800 inventory shortfall in Casa Grande. DeWitt testified that this shortfall was caused by poor bookkeeping, mismanagement, and unrecorded "give-aways" of equipment (to charity or to USC customers) and that the problem was largely unrelated to his dealings with Hickok. DeWitt also testified that it would have been difficult for him to "come clean" about these inventory matters because he had been filing false inventory reports with his superiors at USC in order to cover up the sloppy bookkeeping and inventory control in his office. When DeWitt discussed the situation with Hickok in mid-April, Hickok (according to DeWitt) stated "That's not your problem, that's our problem." Hickok then "immediately" asked about the possibility of securing an agent contract in the Logansport, Indiana region, similar to the one he obtained in Arizona after leaving the employ of USC. DeWitt told him that the prospects of arranging such a contract were "very good." The meeting ended with Hickok pledging to make efforts to borrow or somehow obtain the $9,800 on DeWitt's behalf. In the next several weeks, according to DeWitt, he and Hickok had "a couple" of more conversations in which DeWitt made it clear that he desperately needed to receive "a payment from [Hickok/CAC] showing the sale on paper to CAC for the approximately $9,800 worth of [unaccounted for] equipment."

Although he had not yet resolved the shortfall problem, DeWitt accepted his employer's offer of promotion and transfer in April of 1992. He assumed responsibility for the Logansport office immediately, but remained in Arizona until mid-July, travelling to and from Indiana as necessary (sometimes accompanying Hickok, who was scouting the area in anticipation of being awarded an agent's contract). In early May, Hickok was granted an agent contract for the Logansport area under the name Central Indiana Cellular ("CIC"). By the end of June, Hickok had not yet obtained the money he promised DeWitt, so DeWitt, still working out of the office in Casa Grande, figured out a way to make a "paper transfer" of the problematic shortfall from the Casa Grande office to the Logansport office. In effect, he managed to take the problem with him and thus "buy time" during which Hickok could acquire the needed funds.

While still in Arizona, DeWitt fell $800 behind on his personal utility bill and incurred a $4,000 debt to an Arizona travel agency for business air travel (instead of using his travel re-imbursement checks from USC to pay the travel agency, DeWitt had used the checks for other purposes). DeWitt asked Hickok for help with these personal debts, and Hickok obliged by providing him with money for the utility bill and the unpaid travel expenses.

In mid-July, DeWitt moved to Logansport. Shortly thereafter, Hickok was at last able to receive a loan to cover DeWitt's $9,800 shortfall. ³ After Hickok obtained the funds, he complied with DeWitt's wishes and issued a check in the amount of $9,800, representing payment for the purported "sale" of used USC telephone equipment to CIC.

Now that DeWitt really "owed him one," the defendant began to take full advantage of DeWitt's position at USC. Hickok used his influence over DeWitt in a variety of ways, but the basic pattern was always the same: whenever Hickok asked DeWitt for special favors or concessions, he would first remind DeWitt that he was re-paying the loan that he incurred on DeWitt's behalf, or mention that he had just given DeWitt money to help him with his personal debts.

The first special favor sought by Hickok was the ability to obtain...