U.S. v. Erickson

• Decision Date: 06 April 2009
• Docket Number: No. 08-4025.,No. 08-4028.,08-4025.,08-4028.
• Citation: 561 F.3d 1150
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kathryn V. ERICKSON, Defendant-Appellant, United States of America, Plaintiff-Appellee, v. Gilman Ned Mitchell, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

561 F.3d 1150

UNITED STATES of America, Plaintiff-Appellee, v. Kathryn V. ERICKSON, Defendant-Appellant, United States of America, Plaintiff-Appellee, v. Gilman Ned Mitchell, Defendant-Appellant.

No. 08-4025.

No. 08-4028.

United States Court of Appeals, Tenth Circuit.

April 6, 2009.

Edwin S. Wall of Edwin S. Wall, P.C., Salt Lake City, UT, for Defendant-Appellant, Kathryn V. Erickson.

Elizabethanne C. Stevens, Assistant United States Attorney, (Brett L. Tolman, United States Attorney, with her on the briefs), for Plaintiff-Appellee.

Submitted on the briefs: Loren E. Weiss, Stephen K. Christiansen, and Mary Jane E. Wagg, of Van Cott, Bagley, Cornwall & McCarthy, P.C., Salt Lake City, UT, for Defendant-Appellant Gilman Ned Mitchell.

Brett L. Tolman, United States Atttorney, and Elizabethanne C. Stevens, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff-Appellee.

Before HENRY, Chief Circuit Judge, HARTZ, and O'BRIEN, Circuit Judges.

HARTZ, Circuit Judge.

Defendants Kathryn V. Erickson and Gilman N. Mitchell were each convicted on three counts of obstructing and impeding a federal grand jury. See 18 U.S.C. § 1503. The charges stemmed from the submission of backdated contract extensions (or "change orders") in response to a grand-jury subpoena for records of the Uintah Special Services District (USSD) in Uintah County, Utah. Ms. Erickson was USSD's general manager. The false change orders purported to extend three contracts to cover work by Mr. Mitchell's firm, Ned B. Mitchell Construction, Inc. (Mitchell Construction), after the contracts had expired.

On appeal Defendants contend that (1) the evidence was insufficient to support their convictions because the government did not establish that the false change orders interfered with the grand-jury investigation; (2) the government violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose exculpatory audit documents; and (3) the bias of the trial judge deprived them of a fair trial. Ms. Erickson also contends that her trial counsel was ineffective. We have jurisdiction under 28 U.S.C. § 1291 and affirm the district court.

I. BACKGROUND

Ms. Erickson was the general manager of USSD, a political subdivision of the State of Utah created to use federal-mineral-lease revenues for road projects. She was USSD's only executive officer and administered its day-to-day affairs from a small office in Vernal, Utah. Authority to set USSD's policy, select bids, and award contracts lay with a three-person governing board appointed by the Uintah County Commission. Ms. Erickson prepared budgets for the board's approval, kept it informed of the status of USSD road projects, and submitted contractor invoices for board approval at its periodic meetings. She did not have personal authority to enter into or modify contracts for USSD or to expend more than $1,000 of USSD funds. Cheryl McCurdy was Ms. Erickson's secretary and maintained USSD's files.

Mitchell Construction was a major contractor for USSD. In 1998, USSD awarded Mitchell Construction a contract to haul gravel from a site called Hamaker Bottoms and another contract to carry out small asphalt-paving projects. Although the Hamaker Bottoms contract itself does not contain an expiration date, Mitchell Construction's bid for the contract, which is attached to the agreement, states that "[t]his will be a one-year agreement from January 1, 1998 to December 31, 1998." Supp. R. (Erickson & Mitchell) Vol. XV Ex. 6A at 5 ¶ 5. The small-paving-projects contract recites that the work contracted for will be completed within the 1998 construction year.

During 1999 and 2000 Mitchell Construction continued to perform work on the projects covered by its 1998 contracts with USSD, despite their expiration. It submitted invoices to USSD for this work, which Ms. Erickson presented to USSD's board. The board approved payment of the invoices in every instance, with two board members signing each check to Mitchell Construction.

In June 1999 the United States Department of Transportation's Office of the Inspector General began to investigate contracting irregularities at USSD and the Uintah County Road Department. This investigation was later consolidated with a parallel inquiry by the Federal Bureau of Investigation. Neither Ms. Erickson nor Mr. Mitchell was personally a target of the investigation at first, though Mitchell Construction's contracts with USSD were within the investigation's scope. In late 1999 the United States Attorney for the District of Utah opened a grand-jury investigation.

In January 2000 the grand jury issued a subpoena duces tecum to USSD. Among the documents covered by the subpoena were copies of USSD's "project contracts, invoices," and "any other documents relative to all transactions" between USSD and contractors. Id. Ex. 21 ¶ 15, 17. The following month Ms. Erickson and McCurdy compiled and photocopied a limited number of USSD records for the grand jury. In July 2000 the grand jury made a second request for USSD records covered by the subpoena. During the first week of August, Ms. Erickson and McCurdy again compiled and photocopied documents.

McCurdy testified at trial that while working on the response to the grand jury she saw Ms. Erickson prepare a handwritten change order for the Hamaker Bottoms contract and saw Ms. Erickson and Mr. Mitchell both sign it. The change order, which was backdated to January 13, 1999 (a short time after the original contract had expired), extended the contract through December 31, 2000.

McCurdy later discovered that two other change orders had been created and backdated. She testified that she spent the workday of August 3, 2000, compiling and photocopying USSD records for the second submission to the grand jury. Alone in the office the entire day, she recorded on a handwritten list the documents that she copied for the grand jury, as Ms. Erickson had instructed her. (This list included the Hamaker Bottoms backdated change order signed by Ms. Erickson and Mr. Mitchell a day or two earlier.) McCurdy left the office at 6:30 p.m. to eat dinner at home. She planned to return afterwards to meet Ms. Erickson for a final check of the documents, but Ms. Erickson called McCurdy at home and told her that the documents were in order, so there was no need for her to return to work that evening.

After the subpoenaed records were turned over to Bruce Reading, USSD's legal counsel, for delivery to the grand jury, McCurdy repeatedly asked Ms. Erickson to return her handwritten document list so that it could be filed, but without success. A week to ten days after the documents went to Reading, McCurdy found on Ms. Erickson's desk a photocopy of her list and a similar list in Ms. Erickson's handwriting. Suspecting that "irregularities ... were going on," McCurdy examined the lists. R. Vol. IX Doc. 192 at 15. (Cites to "R." refer to record filed in 08-4025 (Erickson)). On the photocopy of her own list McCurdy saw that two entries not in her handwriting had been added. These entries were for change orders to the small-paving-projects contract between Mitchell Construction and USSD. McCurdy "knew [USSD's] files by heart" and believed that no such change orders had existed when she had compiled her list. Id. McCurdy also examined the list in Ms. Erickson's handwriting and noted that it resembled her own in its original form, except that it used different numbering and included the same two entries that had been added to her own list. McCurdy then looked in USSD's files for the documents reflected by these entries, eventually finding them with files for 1998. Both were signed by Ms. Erickson and Mr. Mitchell. The first change order, dated April 12, 1999, required work to be completed by December 31, 1999. The second change order was dated March 20, 2000, and set a completion date of December 31, 2000.

In 2005, after Ms. Erickson had been fired (in 2002), USSD asked Reading to return documents related to the grand-jury production. Among these was McCurdy's original handwritten list created on August 3, 2000. McCurdy saw that two entries had been added to her list.

Ms. Erickson and Mr. Mitchell were each indicted by a grand jury in the U.S. District Court for the District of Utah on three counts of violating 18 U.S.C. § 1503. Each count corresponded to a backdated change order and charged that Defendants had obstructed justice by knowingly falsifying a document with the knowledge and intent that the grand jury would rely on it.

Before trial both the prosecution and the defense asked the district court to limit the evidence to be presented to the jury regarding the subject matter of the grand-jury investigation. The government filed a motion in limine to exclude evidence that it had failed to charge Defendants with any substantive offenses; and Defendants objected to the government's notice of intent to introduce "background and historical evidence to allow the jury to understand the meaning of the three change orders in context." R. Vol. II Doc. 94 at 2 (internal quotation marks omitted). The court granted the government's motion; and in response to Defendants' objection to background evidence, it said that it would limit such evidence to what would be necessary to establish the elements of the offense. Nevertheless, saying that "the jury may and should be aware of the established fact of the existence of the investigation," id. at 5, the court asked the parties to prepare a stipulation on language to be read to the jury. In response the parties stipulated that the subpoena served on USSD had been duly issued by the grand jury and that, in compliance with the subpoena, Ms. Erickson had delivered documents to USSD's attorney, Bruce Reading, for delivery to the grand jury. But because the parties had not been able to stipulate to anything further, the court told them that it would have to deal with the issue as it arose at trial...