U.S. v. Flanagan, s. 93-6004

• Decision Date: 31 August 1994
• Docket Number: 94-6018,Nos. 93-6004,s. 93-6004
• Citation: 34 F.3d 949
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Thomas Alfred FLANAGAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 949

34 F.3d 949

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Alfred FLANAGAN, Defendant-Appellant.

Nos. 93-6004, 94-6018.

United States Court of Appeals, Tenth Circuit.

Aug. 31, 1994.

Order Amending Opinion on Grant of Rehearing Nov. 21, 1994.

Jack Dempsey Pointer, Oklahoma City, OK, for defendant-appellant in No. 93-6004.

Thomas Alfred Flanagan, pro se, on the brief in No. 94-6018.

Ross Nick Lillard, III, Asst. U.S. Atty. (Vicki Miles-LaGrange, U.S. Atty., with him on the briefs), W.D. Oklahoma, Oklahoma City, OK, for plaintiff-appellee in Nos. 93-6004 and 94-6018.

Before KELLY and McKAY, Circuit Judges, and BRIMMER, ^* District Judge.

McKAY, Circuit Judge.

Thomas Alfred Flanagan appeals from his conviction on a multi-count indictment for conspiracy, mail fraud, wire fraud, and money laundering. Mr. Flanagan was convicted of one count of conspiracy in violation of 18 U.S.C. Sec. 371, eight counts of mail fraud in violation of 18 U.S.C. Sec. 1341, six counts of wire fraud in violation of 18 U.S.C. Sec. 1343, and one count of money laundering in violation of 18 U.S.C. Sec. 1957(a). The district Also before us is case number 94-6018, Mr. Flanagan's pro se appeal of the district court's denial of his motion for bail pending appeal. In light of our disposition of his appeal on the merits in case number 93-6004, we affirm the district court's denial of his motion for bail.

court calculated Mr. Flanagan's total offense level under the Sentencing Guidelines at thirty, with a criminal history category of II, mandating a term of imprisonment of between 108 and 135 months. The district court sentenced Mr. Flanagan to a term of 60 months imprisonment on the first three convictions and 115 months imprisonment on the money laundering conviction, the terms to run concurrently. The court also imposed a three-year term of supervised release. On appeal, Mr. Flanagan raises four instances of alleged error.

I. Facts

Mr. Flanagan's convictions stem from his involvement in a scheme to defraud investors in a sham medical supply company. The scam originated in the fall of 1991 when an individual known as Richard Condia (apparently an alias) arrived in Oklahoma City to start a purported business known as Fidelity National Medical Supply, which would sell medical supply distributorships to investors. The scheme was quite elaborate, involving the renting of office space, hiring employees, renting a guarded warehouse surrounded by a chain link fence and stacked with empty boxes bearing the Fidelity name, and creating fictitious references complete with offices and telephones. In order to reassure potential investors, provisions were also made to provide a "company" limousine to pick up investors at the airport and drive them to the warehouse, where they could see for themselves the extent of the resources commanded by Fidelity. The scam ultimately netted approximately $1.4 million in investors' funds.

Defendant-Appellant Thomas Flanagan and codefendant Harold Frederick Krueger were hired by Richard Condia at the outset of the scheme. Both Mr. Flanagan and Mr. Krueger participated in the initial hiring of employees, including salesmen. Approximately one month after the commencement of the scam, however, both men were purportedly fired by Mr. Condia for alcohol problems. At this point, the facts as presented by Mr. Flanagan and by the United States diverge. Mr. Flanagan contends that he was ignorant of the fraudulent nature of Fidelity, and that he had no further involvement with Fidelity after his purported firing. The government, in contrast, contends that Mr. Flanagan was in on the scam from the beginning, and that after his purported firing, Mr. Flanagan continued to play an active role in the management of Fidelity's operations under the pseudonym of Barry Kent. Barry Kent was considered by the employees of Fidelity to be Mr. Condia's close personal assistant and exercised a great deal of control over the Fidelity operation. Except for one instance, Barry Kent communicated with the Fidelity employees only by telephone. The government presented evidence that in the one instance where Barry Kent apparently visited Fidelity's offices in person, the visitor was really an imposter paid to play the role of Barry Kent in order to lead the Fidelity employees to believe that Mr. Kent was a real person.

The jury convicted Mr. Flanagan on all sixteen counts of the indictment. On appeal, Mr. Flanagan argues that the district court erred in four respects. First, Mr. Flanagan argues that the district court improperly denied his motion for severance from codefendant Harold Krueger. Second, Mr. Flanagan argues that the district court erred in denying his motion in limine to exclude evidence of transactions involving Mr. Flanagan's sale of gold Kruggerand coins. Third, Mr. Flanagan argues that the district court erred in ordering him to provide a voice exemplar and compounded that error by allowing the government to present testimony regarding his refusal to do so. Finally, Mr. Flanagan argues that the district court erroneously allowed the government to inquire into Mr. Flanagan's prior involvement in a similar medical supply scam in 1980. We address each of Mr. Flanagan's contentions in turn.

II. Denial of Motion to Sever

Prior to trial, Mr. Flanagan moved to sever his trial from that of codefendant Harold Krueger, pursuant to Fed.R.Crim.P. 14. We review the district court's denial of a In his motion to sever, Mr. Flanagan alleged that he had continually used his true identity throughout his involvement with Fidelity, a fact inconsistent with an intent to defraud. By contrast, codefendant Krueger had consistently used an alias in his dealings with Fidelity employees. Therefore, Mr. Flanagan argued, his defense was fundamentally at odds with the possibility of Mr. Krueger's innocence. The district court rejected the motion to sever, holding that the two defenses were not mutually antagonistic. We agree. A jury could logically accept Mr. Flanagan's defense without concluding that Mr. Krueger was guilty, and vice versa. ¹ Nor has Mr. Flanagan demonstrated clear prejudice from the joint trial in the absence of mutually antagonistic defenses. "[A]bsent a showing of clear prejudice, a joint trial of the defendants who are charged with a single conspiracy in the same indictment is favored where proof of the charge is predicated upon the same evidence and alleged acts." United States v. Hack, 782 F.2d 862, 871 (10th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986). We accordingly affirm the district court's denial of Mr. Flanagan's motion to sever.

                motion to sever for an abuse of discretion.  United States v. Evans, 970 F.2d 663, 675 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1288, 122 L.Ed.2d 680 (1993).  Under Fed.R.Crim.P. 14, the court may order severance "[i]f it appears that a defendant ... is prejudiced by a joinder of offenses or of defendants."   Fed.R.Crim.P. 14.  Such prejudice is shown where the defendant demonstrates that his theory of defense is mutually antagonistic to that of a codefendant, in that " 'the acceptance of one party's defense would tend to preclude the acquittal of [the] other', or that '[c]onversely, such a showing would seemingly require that the guilt of one defendant tends to establish the innocence of the other.' "  United States v. Smith, 788 F.2d 663, 668 (10th Cir.1986) (quoting United States v. McClure, 734 F.2d 484, 488 n. 1 (10th Cir.1984))
                

III. Motion in Limine

Some of the money collected from Fidelity investors was used by Mr. Condia to purchase gold coins (Krugerrands and others) from Dillon Gage Precious Metals in Dallas, Texas. Between February 12, 1992, and March 20, 1992, Mr. Flanagan sold twenty-six gold Krugerrands to Thomas Cook Currency Services, Inc., in Atlanta, Georgia. Mr. Flanagan moved to exclude the evidence of his sale of the Krugerrands, arguing that it was irrelevant and unfairly prejudicial because the government could not prove that the Krugerrands he had sold were the same ones that Mr. Condia had purchased. The district court denied the motion to suppress, noting that Mr. Condia's purchase of the coins and Mr. Flanagan's sale of the coins were closely related in time; both transactions involved Krugerrands, "a coin not widely seen in the United States"; and Mr. Flanagan admitted that he had been employed by Fidelity. (R. Vol. I Doc. 69 at 9.) The court held that the lack of evidence that the coins were the same went to the weight of the evidence rather than to its admissibility. ²

We review the district court's denial of a motion in limine for an abuse of discretion. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). We review both the district court's determination of the relevancy of the evidence and its conclusion that the probative value of the evidence is not substantially outweighed by its prejudicial effect for an abuse of discretion. United States v. Harrison, 942 F.2d 751, 759 (10th Cir.1991). Federal Rule of Evidence 401 defines relevant evidence as "evidence having We next turn to the balancing test of Rule 403. The government maintains that the fact that Mr. Flanagan sold coins similar to those purchased by Fidelity within a short period of time is highly probative of Mr. Flanagan's continuing involvement in the conspiracy. We are not convinced that the evidence of Mr. Flanagan's sale of Krugerrands is highly probative, in light of the number of Krugerrands in circulation and their common use as an investment vehicle. Nevertheless, we agree that the evidence has some probative value. Turning to the prejudice aspect of the test, we cannot agree with Mr. Flanagan that the evidence of his sale of gold Krugerrands was unfairly prejudicial so as to preclude its admission under Rule 403. Mr. Flanagan's objection is in essence based on the fact that the evidence did in fact tend to connect him...