U.S. v. Evans, 97-10292

• Decision Date: 24 July 1998
• Docket Number: No. 97-10292,97-10292
• Citation: 148 F.3d 477
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cynthia Bennett EVANS, also known as Cindy, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 477

148 F.3d 477

UNITED STATES of America, Plaintiff-Appellee, v. Cynthia Bennett EVANS, also known as Cindy, Defendant-Appellant.

No. 97-10292.

United States Court of Appeals, Fifth Circuit.

July 24, 1998.

Rehearing Denied Sept. 14, 1998.

Renee E. Harris, Fort Worth, TX, Delonia Anita Watson, Christopher Allen Curtis, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee.

Gregory Burke Westfall, Jeff Kearney & Associates, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before REAVLEY, DeMOSS and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Cynthia Bennett Evans appeals from her conviction and sentence on charges of mail fraud under 18 U.S.C. § 1341. Because the alleged mailings did not, as the statute requires, serve Evans's purpose of executing her scheme to defraud her employer of her honest and faithful services, we reverse the mail fraud convictions and vacate that sentence. The judgment of the district court is in all other aspects affirmed.

I.

Cynthia Evans was employed as a parole officer for the Board of Pardons and Paroles of the Texas Department of Criminal Justice. ¹ She worked out of an office in Fort Worth, Texas. In her official capacity, Evans supervised parolees and was responsible for making decisions and recommendations concerning them.

Among the parolees supervised by Evans was a drug dealer named John Clay, a/k/a Cold Blooded. ² Clay had been released on parole after serving four years of a forty-year sentence for drug-related offenses. Immediately upon his release into Evans's supervision, Clay borrowed $10,000 from a friend and started dealing crack cocaine. He quickly ran into potential trouble, however, by failing two consecutive drug tests conducted at the parole office. Clay twice tested positive for cocaine, and because he was not using cocaine at the time, he reasoned that he must have been absorbing the drug through his skin during the process of converting powder cocaine into crack. He decided that he needed to get Evans on his "team."

According to Clay, at the beginning of his relationship with Evans, she was a "very strict" parole officer who "played always by the book." Recognizing, however, that he would be sent back to prison if he continued to fail drug tests, Clay began trying to bribe Evans. She resisted his first attempt. While Evans was visiting him in the field, Clay offered to buy "some rims for her car." Evans declined the offer and threatened to report any future bribery attempts by Clay. He persisted. During a subsequent visit to the parole office, Clay told Evans: "What I'm going to do when I get up is drop some money behind me, and you can either pick it up and report it to lost and found, or you can go get your hair and nails done." Clay dropped $100 on the floor, and when he made an appointment for his next visit to the parole office, Evans thanked him for her hair and nails.

Evans and Clay developed a number of ways to evade the reporting and testing requirements of Clay's parole. To circumvent the drug-testing requirement, Evans suggested that Clay come to the parole office very early, before the arrival of any male officers who could supervise the collection of Clay's urine sample. Clay would then put water in the cup. If there was a supervisor present and Clay had to actually provide a urine sample, he would not seal the package and he would then tell Evans that the sample was "dirty" so that she could make some arrangement to avoid a positive result.

After the first bribe, Clay would leave with Evans a bribe of $100-$300 on each monthly visit. Then, after three or four months, Evans began asking for more money. Clay began paying her bribes of up to $700 at a time. Often, the payments were made to cover specific items requested by Evans: a television receiver, eyelid tattoos that resembled eyeliner, limousine rental, a honeymoon. He also provided Evans with drugs and paid for her car to be washed. Clay estimated that he ultimately paid up to $25,000 in bribes to Evans, including about $8,000 for Evans's wedding.

Clay and Evans also developed a personal relationship. Clay would provide drugs to Evans, and they used drugs together at times. They also began having sexual relations after about six months. The two would meet often for lunch or dinner and other occasions, such as when Clay joined Evans and her son for the Fourth of July. A supervisor in Evans's office testified that these sorts of personal contacts with parolees are improper.

By virtue of the relationship established with Evans, Clay was able to violate routinely the conditions of his parole. He smoked marijuana and used cocaine once or twice a month while under Evans's supervision. He would travel across the country (for example, to watch the Dallas Cowboys win Super Bowl XXX in Phoenix, Arizona) and out of the country (for example, to the Bahamas, Nassau, and Jamaica on ocean cruises) without obtaining official approval. And, most significantly, he sold crack cocaine to over a thousand customers across several states. Evans knew of all these parole violations, yet she failed to report them as her job required.

One of Evans's duties as a parole officer was to visit parolees at their places of residence and employment. The State of Texas pays the travel expenses for these trips. The parole officers keep a log of their visits with each parolee (referred to as a "chronological record"), and they submit travel vouchers for reimbursement from the state. Evans falsely recorded required visits in Clay's record which were never made. ³ She also turned in false travel vouchers, which were in turn mailed to Austin, Texas, for processing. Testimony at trial established that if entries in a parolee's record failed to reconcile with the parole officer's submitted travel vouchers, this irregularity would raise a red flag and invite closer scrutiny by a supervisor.

A federal investigation of Clay's drug syndicate resulted in the discovery of Clay's arrangement with Evans. Evans was named as a defendant in a multiple-defendant indictment covering the entire scope of Clay's operations. She was charged with aiding and abetting a conspiracy to distribute cocaine and cocaine base. A superseding indictment against Evans alone charged her with extortion and mail fraud. A jury convicted her on all counts, and she was sentenced to seventy-two months of imprisonment. Evans timely appealed, contesting the sufficiency of the evidence to support the convictions and the district court's upward departure from the Sentencing Guidelines.

II.

In counts seven through eleven of the superseding indictment, Evans stands accused of violating the federal mail fraud statute. ⁴ Evans contends that the evidence presented by the government is insufficient as a matter of law because it fails to establish that the alleged mailings were "for the purpose" of perpetuating a fraud. 18 U.S.C. § 1341; see United States v. Vontsteen, 872 F.2d 626, 628 (5th Cir.1989). We agree.

As required by FED.R.CRIM.P. 7(c)(1), the superseding indictment recites the following essential facts constituting the offense charged:

2. THE SCHEME

From on or about February 17, 1994, and continuing through on or about February 29, 1996, in the Northern District of Texas and elsewhere, CYNTHIA BENNETT EVANS, defendant, knowingly and willfully devised and intended to devise a scheme to defraud the Board of Pardons and Paroles of the Texas Department of Criminal Justice and the citizens of the State of Texas[ ⁵] of her honest and faithful services by using her knowledge, authority and official position as a parole officer to assist John Clay, who is not named as a Defendant herein, in avoiding arrest and incarceration for violating conditions of parole.

3. ACTS IN FURTHERANCE OF THE SCHEME

(A) It was a part of the scheme that CYNTHIA BENNETT EVANS, defendant, would agree to submit or cause to be submitted falsified urine specimens for John Clay to a laboratory for analysis for the presence of illegal controlled substances.

(B) It was a further part of the scheme that CYNTHIA BENNETT EVANS, defendant, would make false and incomplete entries into the business records of the Board of Pardons and Paroles to conceal information regarding activities of John Clay which constituted violations of conditions of parole.

(C) It was a further part of the scheme that CYNTHIA BENNETT EVANS, defendant, would make entries or cause entries to be made into the business records of the Board of Pardons and Paroles indicating that CYNTHIA BENNETT EVANS, defendant, made periodic visits to John Clay's place of employment and place of residence.

(D) It was a further part of the scheme that CYNTHIA BENNETT EVANS, defendant, would agree to and did provide John Clay with information obtained through her employment as a parole officer regarding other individuals and associates of John Clay who were on parole.

(E) It was a further part of the scheme that when CYNTHIA BENNETT EVANS, defendant, was contacted by telephone by an individual known to the grand jury, on or about January 10, 1996, regarding possible illegal activity of John Clay CYNTHIA BENNETT EVANS told that person that John Clay was an automobile salesman, when CYNTHIA BENNETT EVANS knew that John Clay was not employed as an automobile salesman.

(F) It was a further part of the scheme that, beginning in or about February of 1994 and continuing through on or about February of 1996, CYNTHIA BENNETT EVANS, defendant, would agree to and did accept payments in cash from John Clay.

(G) It was a further part of the scheme that, beginning in or about February of 1994 and continuing through on or about February of 1996, CYNTHIA BENNETT EVANS, defendant, would agree to and did accept property and other benefits from John Clay, including: window tinting for her personal automobile, a television set, and the use of a rented limousine.

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