U.S. v. Frederick
| Decision Date | 03 July 1985 |
| Docket Number | DEFENDANT-APPELLANT,PLAINTIFF-APPELLEE |
| Citation | 770 F.2d 167 |
| Parties | Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES OF AMERICA,, v. SHEILA FREDERICK, NO. 83-1121 |
| Court | U.S. Court of Appeals — Sixth Circuit |
E.D.Mich.
AFFIRMED
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
Before: CONTIE and WELLFORD, Circuit Judges; and EDWARDS, Senior Circuit Judge.
Sheila Frederick appeals her conviction for willful misapplication of CETA funds pursuant to 18 U.S.C. Sec. 665(a) contending that she was deprived of effective assistance of counsel due to her counsel's alleged conflict of interest and that the evidence was insufficient to sustain a conviction. We affirm.
On August 12, 1982, defendant-appellant Sheila Frederick, a planner for Communities United For Action (CUFA), was indicted along with CUFA executive director Jean Conyers, fiscal officer Henrietta Luckie, and bookkeeper Isaac E. Lewis, and charged with willful misapplication of CETA funds, 18 U.S.C. Sec. 665(a), conspiracy to willfully misapply such funds, 18 U.S.C. Sec. 371, and use of a false social security number, 42 U.S.C. Sec. 408(g). CUFA was a subcontractor for Wayne County in distributing funds pursuant to the Comprehensive Employment Training Act of 1973. On August 25, 1982, Frederick and the other defendants, all represented by Attorney Elliott Hall, pleaded not guilty. On October 18, 1982, defendant Luckie retained separate counsel. In early November, Luckie's counsel, seeking increased preparation time, asserted that Luckie was required to retain him due to a conflict of interest in Hall's representation of the four defendants. Luckie argued that a plea agreement was offered involving a restitution-diversion program for two defendants, allegedly Luckie and Frederick. Luckie alleged that due to the conflict, Hall did not notify the defendants of the offered plea. The court and counsel agreed, however, that since the prosecution had proceeded past the state at which a plea agreement was possible, the alleged conflict had no relevance to the case.
On November 8, the defendants waived a jury trial and on November 10 trial began. On November 16, the trial court dismissed the social security number counts. Testimony at trial revealed that until October 12, 1979 Frederick had received a paycheck every two weeks. At that time, however, Frederick, and the other defendants, began receiving weekly checks with one of the checks coming from a CUFA home weatherization fund and one from a work experience program fund comprised of CETA funds. Frederick's salary rose from $593.25 every two weeks to $960 every two weeks, more than a sixty percent increase in pay. Frederick testified that she drafted the contract between the CUFA and Wayne County. She testified that Conyers had given her a raise in October 1979 and that she believed that Conyers as executive director had authority to give her a raise. Frederick testified that she was present at a meeting between Conyers and William McGill, CUFA Board Chairman, in which McGill told Conyers that if she could find money for raises then to give them across the board. Frederick further testified that she did have access to payroll reports in January 1980 because she was working on a project to lower CUFA fringe costs so that insurance could be lower. Frederick noticed when she began receiving additional checks that her name was indicated as 'S. H. Frederick' and that her social security number was incorrect. When she asked bookkeeper Lewis about this he told her that 'ADP would not kick out the checks unless there was some alterations in the ID numbers and the name.'
The code number '140' was printed on the extra checks Frederick received. This number represented the CETA work experience program fund. Frederick testified that she did not notice this number and did not know that her raise cam from the CETA funds. However, Frederick testified that she was aware Conyers had modified the CUFA/Wayne County contract in December 1979 to decrease administrative costs and increase service costs.
Conyers testified that Frederick did a salary analysis to aid her in administering the raises. McGill testified that the Board did not approve the raises, and that he had told Conyers to try to find money for raises then to seek Board approval.
On November 19, 1982, the district court found all defendants guilty of misapplication pursuant to 18 U.S.C. Sec. 665(a) and Lewis, Conyers, and Luckie guilty of conspiracy. The court found that the CUFA board had not authorized the raises and stated that 'I reject the testimony of Mrs. Conyers and Mrs. Frederick as not credible on this issue.'
With reference to Mrs. Frederick, although I did find her not guilty of conspiracy, I think there is sufficient evidence to establish her guilt as to Count Four, which charges her with misapplication of CETA funds under 18 U.S.C. 665(a).
Mrs. Sheila Frederick prepared the contract for Wayne County. She knew that the CETA funds could not be allocated for administration. She was present when Mr. McGill told them about the raises. She knew that the huge raise she got was not authorized. She received checks with altered names on them. She received four withholding slips. She received two checks and she received checks that were written on Department 140 and also checks that had false social security numbers. I think there is no question but what she willfully obtained the money by fraud, so I will find Mrs. Frederick guilty of Count Four.
On December 23, 1982, Frederick was sentenced to two years probation with restitution of $1,440 in the first twenty-two months.
On January 6, 1983, judgment was entered and on January 31, 1983 notice of appeal was filed. On June 17, 1983, this court dismissed the appeal for lack of jurisdiction as a consequence of appellant's late notice of appeal. On September 20, 1983, the district court entered an order granting an extension of time to file notice of appeal, but no notice was filed. In April 1984, the government petitioned for an order to show cause why probation should not be revoked. On April 16, 1984, the district court found continuing excusable neglect and allowed an extension of time to file notice of appeal and such notice was filed.
In this court, Frederick moved to remand her case for an evidentiary hearing and to hold the appeal in abeyance pending such hearing. In an affidavit attached to such motion Frederick swore that her trial counsel had not discussed the ramifications of multiple representation with her, that counsel provided a special group rate for representing all defendants, and that counsel never informed Frederick of the plea offer. The motion for remand was denied on November 15, 1984.
Due process requires the government to prove, beyond a reasonable doubt, every element of the offense charged. In re Winship, 397 U.S. 358 (1970); Stacy v. Love, 679 F.2d 1209, 1212 (6th Cir.), cert. denied, 459 U.S. 1009 (1982). In reviewing a verdict challenged as based on insufficient evidence, 'the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. McCullah, 745 F.2d 350, 354 (6th Cir. 1984); United States v. Stull, 743 F.2d 439, 442 (6th Cir. 1984); United States v. Tilton, 714 F.2d 642, 645 (6th Cir. 1983); Stacy v. Love, 679 F.2d 1209, 1212-13. 'The Due Process Clause, in other words, sets a lower limit on an appellate court's definition of evidentiary sufficiency.' Tibbs v. Florida, 457 U.S. 31, 45 (1982) (footnote omitted). Sufficiency of the evidence must be considered in regard to each element of appellant's offense. Fuller v. Anderson, 662 F.2d 420, 423 (6th Cir. 1981), cert. denied, 455 U.S. 1028 (1982). However, Scott v. Perini, 662 F.2d 428 431-32 (6th Cir. 1981), cert. denied, 456 U.S. 909 (1982) (footnote omitted). 'This review should be independent of the jury's [court's] determination that evidence on another count was insufficient.' United States v. Powell, 105 S. Ct. 471, 478 (1984).
18 U.S.C. Sec. 665(a) provides:
Whoever, being an officer, director, agent, or employee of, or connected in any capacity with any agency or organization receiving financial assistance of any funds under the Comprehensive Employment and Training Act or the Job Training Partnership Act knowingly enrolls an ineligible participant, embezzles, unwillfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or property which are the subject of a financial assistance agreement or contract pursuant to such Act shall be fined not more than $10,000 or imprisoned for not more than 2 years, or both; but if the amount so embezzled, misapplied, stolen, or obtained by fraud does not exceed $100, such person shall be find not more than $1,000 or imprisoned not more than 1 year, or both.
To obtain a conviction under Sec. 665 the government must prove two elements:
(1) that the accused was an officer, director, agent or employee of, or connected in any capacity with an agency receiving financial assistance under CETA;
(2) that the accused embezzled, willfully misapplied, stole, or obtained by fraud 'moneys, funds, assets, or property which are the subject of a grant or contract of assistance.'
To continue reading
Request your trial