U.S. v. Robinson, s. 84-1939

• Decision Date: 31 October 1985
• Docket Number: 84-1940 and 84-1948,Nos. 84-1939,s. 84-1939
• Parties: UNITED STATES of America, Appellee, v. H. Wesley ROBINSON, Leo W. Wilson, and Irwin W. Milliken, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 261

774 F.2d 261

UNITED STATES of America, Appellee, v. H. Wesley ROBINSON, Leo W. Wilson, and Irwin W. Milliken, Appellants.

Nos. 84-1939, 84-1940 and 84-1948.

United States Court of Appeals,

Eighth Circuit.

Submitted May 15, 1985.

Decided Sept. 30, 1985.

Rehearing Denied Oct. 31, 1985 in Nos. 84-1939 and 84-1940.

Ann Fitzgibbons, and David Shinkle, Des Moines, Iowa, John L. Timmons, Ames, Iowa, for appellants.

Robert C. Dopf, Asst. U.S. Atty., Des Moines, Iowa, for appellee.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

H. Wesley Robinson, Irwin W. Milliken, and Leo W. Wilson appeal from a final judgment entered by the district court ¹ on a jury verdict finding them each guilty of mail fraud in violation of 18 U.S.C. Sec. 1341. Robinson and Wilson were found guilty on each of the fifteen counts of mail fraud with which they were charged, while Milliken was found guilty on each of the nine counts with which he was charged. Each of the fifteen indictment counts refers to a separate loan applicant. The district court sentenced Robinson to three years in prison on each of counts 1 through 7 of the indictment, and to five years probation for each of counts 8 through 15 of the indictment, all of these sentences to run concurrently. The court sentenced Wilson to one year and one day in prison on each of counts 1 through 7, and to five years probation on counts 8 through 15, again with these sentences to run concurrently. The court sentenced Milliken to one year and one day in prison on each of counts 7 through 11, and to five years probation on each of counts 12 through 15, all to run concurrently. For reversal the appellants make many allegations of error; not all appellants join in each argument. Finding none of appellants' arguments to be of merit, we affirm the judgment of the district court.

I. BACKGROUND

Harley S. Troutman and James G. Liverca were originally indicted along with Robinson, Milliken, and Wilson. Troutman died prior to trial and was thus dismissed as a defendant. Because Liverca had agreed to cooperate with the investigation and testify in exchange for a plea of guilty to a single count of mail fraud, the Government moved to sever Liverca from the other defendants. The court granted the motion to sever and accordingly set Liverca's trial date for June 18, 1984, three weeks after Robinson's, Milliken's, and Wilson's trial was to begin. On June 15, 1984, however, following the jury's return of guilty verdicts against Robinson, Milliken, and Wilson, the Government moved to dismiss the indictment against Liverca citing the absence of criminal intent on his part. The court granted the motion and dismissed the charges against Liverca on July 2, 1984.

The indictment charged appellants with knowingly participating in a scheme or artifice to defraud. Under this scheme, potential borrowers were informed that foreign--European, Middle Eastern, and Mexican--sources were seeking to make enormous amounts of money available to American investors. Because of international legal restrictions, however, the sources could not lend the money directly to American corporations. Instead, the loans would be made to individuals, who would serve as conduits. The individuals could obtain collateral security agreements, through the help of the appellants, from major American corporations. The collateral security agreement would be the corporation's guarantee to pay the principal and interest on the loans. The individual would benefit by receiving a commission for his role as the nominal borrower. The individual would not be responsible for paying the money back, and at most would have to pay a gift tax.

The roles of the individual defendants in the scheme varied. Robinson was basically the "mastermind" behind the scam, having originated the idea and recruited the other players. Robinson represented himself to the other defendants to be an investment banker and financial counselor, experienced in international loan placement. He initially described the "over-borrow" concept to Troutman and Liverca, who in turn promoted the plan to others, including Wilson, through a corporation named T-Plex, Inc. Robinson received an advance fee of $3,500 for each application that Troutman and Liverca submitted to him. Robinson in turn "kicked back" $1,000 of each advance fee to Troutman and Liverca.

Wilson first learned of the loan-finding scheme through Troutman and Liverca, and thereafter promoted the scheme in meetings with prospective borrowers. When a prospective borrower actually applied for a loan, Wilson would help him fill out the necessary papers, and would collect the $3,500 fee to be forwarded through Troutman and Liverca to Robinson. Wilson later began charging $1,000 per application for his own services.

Milliken was first told of the loan-finding plan by Wilson. Wilson informed clients of his accounting and bookkeeping service that he could, for a fee, direct them to people who could arrange enormous international loans. Milliken charged applicants first $1,000 and then $1,500 for introducing them to Wilson.

Between June 1980 and mid-August 1980, over 100 people paid various fees to appellants ranging from $3,500 to over $12,000 each. All together, appellants received over $720,000 in fees during this time period. No loans were ever obtained.

II. DENIAL OF MOTION TO SEVER

We address first Robinson's and then Milliken's arguments that the district court erred in denying their individual motions to sever, made prior to and during their trial. Robinson and Milliken do not claim that their initial joinder was impermissible under Fed.R.Crim.P. 8(b) ², but instead assert that the prejudice resulting from the joinder mandated severance under Fed.R.Crim.P. 14. ³ Specifically, Robinson alleges that the admission of certain evidence, which if he had been tried alone would not have been admissible, prejudiced his case. The evidence about which Robinson is concerned consists of his conviction for mail fraud in federal district court in Ohio and his suspension from the Ohio Bar Association. Although the district court originally ruled in limine that the conviction and the suspension were inadmissible, it later ruled that the Ohio conviction would be admissible. Robinson argues that the license suspension was impermissibly admitted when Milliken's defense counsel conducted cross-examination of Tam Ormiston, Assistant Attorney General of Iowa.

We think Robinson's severance argument is without merit. Generally, persons charged in a conspiracy or jointly indicted on similar evidence from the same or related events should be jointly tried. See, e.g., United States v. Bostic, 713 F.2d 401 403 (8th Cir.1983) (quoting United States v. Jackson, 549 F.2d 517, 523 (8th Cir.), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977)); United States v. Phillips, 607 F.2d 808, 810 (8th Cir.1979). This court has repeatedly held that a motion to sever is addressed to the sound discretion of the district court, and a denial of severance is not grounds for reversal unless great prejudice and an abuse of discretion are shown. United States v. Nabors, 762 F.2d 642, 651 (8th Cir.1985); United States v. Miller, 725 F.2d 462, 467 (8th Cir.1984) (citing United States v. Burchinal, 657 F.2d 985, 994-95 (8th Cir.), cert. denied, 454 U.S. 1086, 102 S.Ct. 646, 70 L.Ed.2d 622 (1981)). See also United States v. Brim, 630 F.2d 1307, 1310 (8th Cir.1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981); United States v. Swarek, 656 F.2d 331, 337 n. 4 (8th Cir.), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1981); United States v. Boyd, 610 F.2d 521, 525 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1052, 62 L.Ed.2d 777 (1980).

An individual defendant shoulders a heavy burden in trying to establish that the denial of a severance motion was an abuse of the district court's discretion. United States v. Graham, 548 F.2d 1302, 1310-11 (8th Cir.1977). Robinson falls far short of carrying such a burden here. The district court ultimately ruled that evidence of Robinson's Ohio conviction was admissible under Fed.R.Evid. 404(b) against Robinson, as proof of plan, knowledge, absence of mistake, and preparation. As such, the conviction also would have been admissible in a separate trial of Robinson, and thus the admission of the conviction in the joint trial could not have rendered the joinder prejudicial to Robinson. As for the license suspension, Robinson errs in contending that this evidence was brought out by Milliken's defense counsel on cross-examination of Ormiston. The suspension was not mentioned; indeed, the district court reiterated its ruling that the license suspension could not be brought up at all.

In support of his argument that his motions to sever were erroneously denied, Milliken proffers more reasons than does Robinson, all of which we find equally meritless. Milliken argues variously that: 1) evidence of other crimes and bad acts of his co-defendants, which was not admissible against Milliken, prejudiced his case; 2) evidence of crimes and bad acts of his co-defendants performed subsequent to the time period in the indictment heightened the chance of jury confusion and prejudice to Milliken; 3) Robinson's failure to testify prevented Milliken from exercising his constitutional right to confrontation with regard to Robinson's prior conviction and his other crimes and bad acts; 4) the "confession" by Liverca as to his plea bargain and his intent to plead guilty to one of the fifteen counts prejudiced Milliken; 5) evidence of inculpatory statements made by Robinson and Wilson, which would not have been admissible against Milliken alone, prejudiced Milliken; 6) the existence of antagonistic defenses among the defendants warranted severance; 7) Milliken was charged with only nine of the fifteen...