U.S. v. Dooley

• Decision Date: 20 August 2009
• Docket Number: No. 08-4131.,08-4131.
• Citation: 578 F.3d 582
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mickey L. DOOLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

578 F.3d 582

UNITED STATES of America, Plaintiff-Appellee, v. Mickey L. DOOLEY, Defendant-Appellant.

No. 08-4131.

United States Court of Appeals, Seventh Circuit.

Argued May 27, 2009.

Decided August 20, 2009.

Steven D. Weinhoeft (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.

Gordon E. Freese, Attorney (argued), Clayton, MO, for Defendant-Appellant.

Before CUDAHY, RIPPLE and WOOD, Circuit Judges.

RIPPLE, Circuit Judge.

Mickey L. Dooley was convicted in the United States District Court for the Southern District of Illinois on charges arising out of thefts from the evidence locker of the municipal police department where he was employed. The district court sentenced him to 120 months' imprisonment, followed by three years of supervised release. Mr. Dooley filed this timely appeal challenging both his conviction and his sentence. For the reasons discussed in this opinion, we affirm his conviction in part and reverse it in part. Because we are reversing his conviction on one count, we also must vacate his sentence and remand his case to the district court for resentencing.

I BACKGROUND

Mr. Dooley was a police officer employed by the Alton (Illinois) Police Department ("APD"). During the time period relevant to this case, Mr. Dooley was the evidence custodian for the APD; in this capacity, he was responsible for collecting and processing evidence at the scenes of major crimes committed within the APD's jurisdiction. He was also in charge of receiving, maintaining and preserving the evidence that was stored in the APD's evidence vault.

The APD's evidence vault was subject to strict security measures. Only five members of the APD, including Mr. Dooley, had access cards allowing entry to the vestibule area outside the evidence vault. Entry to the vault itself required a special secure key; only two copies of that key existed. One was assigned to Mr. Dooley; the second was stored in a secure area in the administration wing of the APD. The cash locker inside the vault required another key for access; only two copies existed. One was assigned to Mr. Dooley and the other was stored in the secured administration wing.

In June 2006, the Olin Community Credit Union in Alton was robbed (the "OCU robbery"). In October 2006, a local branch of the U.S. Bank was robbed (the "US Bank robbery"). The APD investigated the robberies; it ultimately was able to recover $4,115 in proceeds from the June robbery and $20,029 from the October robbery. Mr. Dooley participated in both investigations and personally deposited the money into the APD evidence vault. On Friday, April 6, 2007, FBI Special Agent Melanie Jiminez contacted Mr. Dooley's supervisor to request that evidence from the OCU robbery be turned over to the FBI for use in the federal prosecution in that case. That same day, Mr. Dooley's supervisor sent him an email to inform him that the FBI wished to retrieve that evidence the following week. On Sunday, April 8—one of Mr. Dooley's days off — surveillance cameras recorded Mr. Dooley inside the evidence vault removing the box containing evidence from the OCU robbery.

On the following Monday, April 9, Special Agent Jiminez called Mr. Dooley to arrange to pick up the evidence. Mr. Dooley told Jiminez that he would provide a container in which to carry the evidence. He also asked her to delay the evidence pickup until the following day. Jiminez agreed. When Jiminez arrived the next day, Mr. Dooley gave her an inventory list to check off while he handled the evidence packages. While Jiminez was looking at the list, the surveillance camera captured Mr. Dooley placing one of the packages under another; as a result, Jiminez never examined the contents of the concealed package. Mr. Dooley then carried the evidence out to Jiminez's car.

Jiminez took the evidence directly to the FBI's secure evidence room, where it remained until Friday, April 13, 2007. On that day, the FBI discovered that most of the money recovered from the OCU robbery was missing and that the original seals on the evidence envelopes had been compromised. Jiminez notified her direct supervisor and the APD. In response, APD Police Chief Chris Sullivan ordered an inventory of the APD evidence vault. He also ordered APD personnel not to enter the vault until after the inventory was completed on the following Monday. Despite Chief Sullivan's order to stay out, Mr. Dooley was recorded entering the vault on both Saturday and Sunday. On Sunday, the cameras also recorded him accessing the APD's cash locker.

The APD conducted an audit of the evidence vault on Monday, April 16, 2007. As a result, the APD discovered that bags containing evidence from the U.S. Bank robbery had been tampered with and that $18,608 was missing from the evidence in that case. Investigators later discovered that an evidence bag containing $9,460 had been cut open, re-sealed, and initialed by Mr. Dooley. Handwriting analysis confirmed that the initials were written by Mr. Dooley.

The APD then terminated its internal investigation and turned the matter over to the Illinois State Police and the FBI. Investigators performed a full audit of the APD's cash locker and discovered that a total of $38,749.58 was missing. Some of the missing currency had been replaced with poor-quality counterfeit bills. The investigation also revealed that Mr. Dooley had removed evidence, including cash, a computer and marijuana, from the scene of a death investigation. He had not booked that evidence or documented its existence in any way.

After discovering the counterfeit currency in the evidence vault, the investigators asked Mr. Dooley if they could search any computers he owned. Mr. Dooley told the investigators that he owned two computers, and he signed a form titled "CONSENT TO SEARCH BY OWNER," which represented that he had ownership and authority over both computers. Investigators discovered that the serial number of one of the computers, an Apple Macintosh laptop, matched the serial number of a computer that had been taken from the home of Lee Fielding, one of the perpetrators of the U.S. Bank robbery.

The investigators then interviewed Mr. Dooley again and asked him if he had stolen the laptop. Mr. Dooley initially denied having stolen it; he insisted that he had bought the laptop from the Apple Store at the Galleria mall in St. Louis, Missouri, for $2,000 in cash. He claimed that he had a receipt at home that would prove his ownership. After about thirty minutes of questioning, however, Mr. Dooley changed his story and admitted that he had stolen the laptop. A forensic examination revealed that he had entered ownership information on the laptop as if it were his own and had used the computer for personal purposes. The examiners also discovered that Mr. Dooley had used the laptop to conduct a Google search on the phrase "financial ruin." R.125 at 959.

Further investigation revealed that Mr. Dooley was in serious financial trouble. He owed tens of thousands of dollars in back taxes; he was the subject of several IRS tax levies and a wage garnishment. The investigators also uncovered massive gambling losses: In 2006, Mr. Dooley's take-home pay totaled $35,955, but his losses at the Alton Belle Casino totaled $48,424.95. Investigators also discovered that Mr. Dooley did not file a 2006 federal tax return until October 31, 2007, well after he became aware that he was under investigation by the IRS.

On May 22, 2008, the Government brought an eight-count indictment against Mr. Dooley in the United States District Court for the Southern District of Illinois. The crimes alleged were: (1) two counts of making a false statement, 18 U.S.C. § 1001(a)(2); (2) one count of wire fraud, 18 U.S.C. §§ 1343, 1346; (3) one count of attempting to conceal evidence, 18 U.S.C. § 1512(c)(1); (4) two counts of disposal of money stolen from a bank, 18 U.S.C. § 2113(c); (5) one count of misapplication of property under the control of a local government, 18 U.S.C. § 666; and (6) one count of failure to file a tax return, 26 U.S.C. § 7203. Mr. Dooley filed a motion to dismiss the indictment, which the district court denied.

After a two-week trial, a jury convicted Mr. Dooley on all counts. The district court imposed an above-guidelines sentence of 120 months in prison. Mr. Dooley then filed this appeal, in which he challenges the indictment, his conviction and his sentence.

II DISCUSSION

Mr. Dooley raises five points of error. He challenges the sufficiency of the evidence at trial, the sufficiency of the indictment, the district court's decision to exclude certain evidence at trial, the district court's refusal to give a requested jury instruction and the reasonableness of his sentence. We shall address each of his arguments in turn.

A. Sufficiency of the Evidence

Mr. Dooley submits that the evidence presented by the Government on each of the eight counts was insufficient to permit any rational trier of fact to conclude that he was guilty beyond a reasonable doubt. He also contends that the district court "rushed" his defense by requiring him to counter two weeks of government evidence in only one day.¹ Appellant's Br. 18.

"A challenge to the sufficiency of the evidence is a difficult task for a defendant. We shall reverse only if, after viewing all of the evidence in a light most favorable to the government, and drawing all reasonable inferences therefrom, . . . a rational trier of fact could not have found the essential elements of the crime, beyond a reasonable doubt." United States v. Hearn, 534 F.3d 706, 714 (7th Cir.2008) (alteration in original) (citation and quotation marks omitted).

Mr. Dooley points to several pieces of evidence that could have provided a basis for reasonable doubt if the jury had decided to credit them. For seven of the eight counts, however, he fails to identify any element of any of the crimes for which the Government failed to present evidence...