United States v. Hammers, 18-7051

• Decision Date: 12 November 2019
• Docket Number: No. 18-7051,18-7051
• Citation: 942 F.3d 1001
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Buck Leon HAMMERS, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

942 F.3d 1001

UNITED STATES of America, Plaintiff - Appellee,

v.Buck Leon HAMMERS, Defendant - Appellant.

No. 18-7051

United States Court of Appeals, Tenth Circuit.

FILED November 12, 2019

Ryan A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray, Tulsa, Oklahoma, for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney (Brian J. Kuester, United States Attorney, and Robert A. Wallace, Assistant United States Attorney, with her on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee.

Before TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant-Appellant Buck Leon Hammers used to be the Superintendent of the Grant-Goodland Public School District in Grant, Oklahoma. That is, until he was charged with conspiring with his secretary to commit bank fraud and embezzle federal program funds. Prior to trial, the Government moved to exclude a suicide note written by Defendant’s secretary and co-conspirator, Pamela Keeling. In that note, Ms. Keeling took full responsibility for the fraud and exculpated Defendant of any wrongdoing. The district court granted the Government’s motion and prohibited Defendant from introducing the note at trial. The jury subsequently convicted Defendant of conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349 and conspiracy to embezzle federal program funds in violation of 18 U.S.C. § 371. The jury acquitted Defendant on the seven substantive counts of embezzlement and bank fraud.

On appeal, Defendant asserts: (1) the district court erred in excluding Ms. Keeling’s suicide note; (2) the Government did not present sufficient evidence to obtain a conviction; (3) the Government committed prosecutorial misconduct; and (4) the district court committed procedural error at sentencing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

In August 2001, Defendant became the Superintendent of Grant Schools. Eight years later, Grant Schools consolidated with the Goodland School District, creating the Grant-Goodland Public School District ("Grant-Goodland"). Beginning in 2011, the auditing firm for Grant-Goodland noticed deficiencies in Grant-Goodland’s invoicing process. Although the firm noted the deficiencies in Grant-Goodland’s audit and made recommendations for improvement, the deficiencies persisted through subsequent audits in 2012, 2013, and 2014.

By 2014, the continued deficiencies raised more serious concerns as auditors began to suspect fraud at Grant-Goodland. Initially, the auditors were concerned with fourteen large purchase orders totaling $386,211. The auditors were troubled by the fact that the purchase orders did not have "actual original invoices with letterhead and normal business information." In light of their concerns, the auditors examined all checks issued to the vendors identified in the fourteen large transactions. The auditors determined the checks to these vendors were written as a group together, each month, on the same date. Each of the checks was endorsed by both the vendor, and then, a school official. The checks were cashed within minutes of each other, at the same bank, on the same day they were issued. Because many of these vendors were located out of town, the auditors found it unlikely the checks could have been issued, mailed, and cashed in such a short amount of time. Having validated their suspicions, the auditors notified the United States Department of Education Office of Inspector General Investigation Services ("OIG"), which initiated the federal investigation in this case.

On January 28, 2016, agents from the FBI and the OIG executed a search warrant at Grant-Goodland’s administrative office and seized 36 boxes of documents as well as electronic files. Sometime thereafter, Ms. Keeling informed Jimmie Sue Miller—who was her aunt and the school board treasurer—she intended to tell authorities she "did it." On February 1, 2016, the Grant-Goodland school board suspended Defendant and Ms. Keeling for their alleged roles in the scheme to defraud the district by falsifying invoices and check endorsements. Ms. Keeling committed suicide the next day.

Before taking her own life, Ms. Keeling left four suicide notes laying on a bible—three to her family and one "to whom it may concern" at Grant-Goodland. The letter to whom it may concern at Grant-Goodland read as follows: "I Pam Keeling take full responsibility for everything at Grant School. No vendor nor Mr. Hammers had anything to do with what happened. I am truly sorry and pray for forgiveness."

II.

Prior to trial, the Government filed a motion in limine to exclude the suicide note from evidence, arguing the note is inadmissible hearsay. In response, Defendant argued the note qualifies as a statement against interest and is also admissible under the residual exception to the hearsay rule. See Fed. R. Evid. 804(b)(3) ; Fed. R. Evid. 807. At the pretrial hearing, the district court granted the Government’s motion in limine but left its decision open to reconsideration depending on the evidence presented at trial. At trial, defense counsel revisited the issue and the district court reiterated its decision to exclude the note.

In making its decision, the district court reasoned the suicide note was not a statement against interest because "penal interest is of no interest—is of no moment to a dead man." The court further held the note was not "corroborated by circumstances clearly indicating its trustworthiness." Having determined the note was not corroborated by circumstances clearly indicating its trustworthiness, the district court also held the note could not be admitted under the residual exception.

Despite its decision to exclude the note, the district court permitted defense counsel to question Ms. Keeling’s aunt, Jimmie Sue Miller, regarding Ms. Keeling’s confession that she "did it." The district court admitted the confession pursuant to the statement against interest exception because there were corroborating circumstances with respect to Ms. Keeling’s statement to her aunt, in contrast to the suicide letter. Specifically, the district court found Ms. Keeling’s statement that she "did it" was corroborated by the Government’s evidence, which was "very much based upon Ms. Keeling’s involvement." Although defense counsel originally intended to call Ms. Miller to testify regarding Ms. Keeling’s confession, counsel ultimately determined calling Ms. Miller would not be in Defendant’s best interest.

After the Government rested its case, Defendant moved for a judgment of acquittal on all counts, which the district court denied. Subsequently, Defendant testified in his own defense. At the close of all evidence, Defendant renewed his motion. The district court denied the motion on the same grounds finding, in the light most favorable to the Government, a rational trier of fact could find every element of the crimes charged beyond a reasonable doubt. After nearly seven hours of deliberation, the jury returned a guilty verdict on counts one and two, charging conspiracy to commit bank fraud and conspiracy to embezzle federal program funds. The jury acquitted Defendant on counts three through nine, alleging bank fraud and embezzlement.

Following the trial, the United States Probation Office prepared a presentence report ("PSR"). In the final PSR, the United States Probation Office recommended the court apply a two-level obstruction of justice enhancement based on Defendant’s alleged perjury at trial. At sentencing, the district court found by a preponderance of the evidence Defendant committed perjury and applied the enhancement over Defendant’s objection.

The district court also considered Defendant’s motion for a downward variance and the Government’s motion for an upward departure at sentencing. After consideration, the court granted the Government’s motion in part and imposed a two-level upward departure. Based on that departure, the district court calculated an adjusted guideline range of 87 to 108 months. Ultimately, the district court imposed a sentence at the high end of the guideline range, sentencing Defendant to 108 months on both counts 1 and 2 to run concurrently. The district court also imposed a three-year term of supervised release on each count to run concurrently.

III.

Defendant raises four issues on appeal. First, he argues the district court erred in excluding Ms. Keeling’s suicide note. Next, he maintains the Government did not present sufficient evidence to obtain a conviction. Third, he alleges the Government committed prosecutorial misconduct. Finally, he contends the district court committed procedural error at sentencing. We address each issue in turn.

A.

First, Defendant argues the district court erred in excluding Ms. Keeling’s suicide note at trial. Defendant further argues the exclusion of the note violated his constitutional right to present a defense. We review the district court’s evidentiary rulings for an abuse of discretion. United States v. Dowlin , 408 F.3d 647, 659 (10th Cir. 2005). When a defendant alleges the district court’s evidentiary ruling deprived him of his constitutional right to present a defense, we review the constitutionality of the ruling de novo. Id.

1.

Turning first to whether the district court abused its discretion in excluding the suicide note, Defendant argues the district court should have admitted the suicide note as a statement against interest pursuant to Federal Rule of Evidence 804(b)(3) or, in the alternative, under the residual exception pursuant to Federal Rule of Evidence 807.

Under Rule 804(b)(3), a statement against the declarant’s interest is not excluded as hearsay if it is sufficiently reliable. Rule 804(b)(3) covers only those statements that are "individually self-inculpatory." United States v. Smalls , 605 F.3d 765, 781 (10th Cir. 2010) (citing Williamson v. United States , 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) ). We have rejected the notion "that an entire...