U.S. v. Gooch, 96-4060

• Decision Date: 18 July 1997
• Docket Number: No. 96-4060,96-4060
• Citation: 120 F.3d 78
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Calvin GOOCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 78

120 F.3d 78

UNITED STATES of America, Plaintiff-Appellee, v. Calvin GOOCH, Defendant-Appellant.

No. 96-4060.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1997.

Decided July 18, 1997.

Melvin K. Washington (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

LeRoy Kramer, III, Racine, WI, for Defendant-Appellant.

Before CUMMINGS, WOOD, JR., and DIANE P. WOOD, Circuit Judges.

CUMMINGS, Circuit Judge.

Defendant Calvin Gooch was employed by American Telephone & Telegraph Company ("AT&T") as an operation manager in its Milwaukee, Wisconsin, Custom Assembly Center. Gooch supervised all the employees of that facility from 1990 to 1992.

In the indictment, Gooch was accused of executing a scheme to defraud AT&T by having his secretary alter the payroll time records for herself and three other AT&T employees by adding unworked overtime hours. She altered the time sheets so that the overtime hours were apparently properly documented and classified. The fraudulent weekly time sheets were then sent from the Milwaukee facility to an AT&T facility in Alpharetta, Georgia, for entry into AT&T's payroll system. As a result of that information, payroll checks were sent from AT&T's Alpharetta facility to Milwaukee for disbursement to these four employees. Gooch then instructed them to cash their paychecks and give him most of the overtime amount. The indictment asserted that AT&T paid $159,970 in fraudulent overtime to the participating employees. This scheme was alleged to violate 18 U.S.C. § 2314.

After hearing the evidence, the jury returned a guilty verdict and Gooch was sentenced to 46 months' imprisonment. We affirm.

Ambiguity in indictment

The first two paragraphs of 18 U.S.C. § 2314 provide as follows:

Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud; or

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person or persons to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more; or ...

Shall be fined under this title or imprisoned not more than ten years, or both.

Count One of the indictment was brought under the first paragraph of Section 2314 and provides as follows:

From on or about January 1990 to on or about June 1992, in the State and Eastern District of Wisconsin and elsewhere, CALVIN GOOCH the defendant, having executed and attempted to execute the scheme to defraud, did knowingly cause to be transported AT&T payroll checks containing unearned overtime compensation with a value in excess of $5000.00 in interstate commerce from Georgia to Wisconsin knowing the same to have been transported due to the above-described scheme to defraud.

Defendant contends that the preceding factual part of the indictment erroneously alleges elements of the second paragraph of Section 2314 as well as the first, thus forming a single offense from the two different sections. This challenge to the sufficiency of the indictment was not made until the close of the government's case and therefore the indictment must be upheld "unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted." United States v. Watkins, 709 F.2d 475, 478 (7th Cir.1983) (citing United States v. Knippenberg, 502 F.2d 1056, 1061 (7th Cir.1974)). However, the indictment, together with the court's jury instructions, addresses the first paragraph of 18 U.S.C. § 2314 and concerns the interstate movement of property. In contrast, the second paragraph involves the interstate transportation of persons, which is not alleged in this indictment. See United States v. Quintanilla, 2 F.3d 1469, 1475 n. 6 (7th Cir.1993). It is true that the indictment refers to a scheme to defraud which is covered by the second paragraph of 18 U.S.C. § 2314, but this phrase is mere surplusage and will therefore be disregarded. See United States v. Mastrandrea, 942 F.2d 1291, 1293-1294 (8th Cir.1991), certiorari denied, 502 U.S. 1074, 112 S.Ct. 973, 117 L.Ed.2d 138.

In sum, defendant has not shown that the drafting of this indictment caused him any prejudice. The indictment charged each of the elements required for a conviction under Section 2314, as set forth by this Court. See Quintanilla, 2 F.3d at 1474.

Adequacy of instruction under 18 U.S.C. § 2314

The district judge instructed the jury as to the necessary elements of the offense charged by stating:

First of all, that the defendant transported or caused to be transported the money described in the indictment in interstate commerce from Georgia to Wisconsin;

Second, that the money was at least $5,000;

Third, that the money had been taken by fraud;

And fourth, at the time that the defendant transported or caused the money described in the indictment to be transported, he knew it was taken by fraud.

In so doing, Judge Curran used the standard instructions in this Circuit for an offense in violation of the first paragraph of Section 2314. See Vol. III, Jury Instructions of the Seventh Circuit, p. 101. As required by the statute, the district judge told the jury that at least $5,000 must have been taken by fraud, transported in interstate commerce, and that the defendant knew the money was taken by fraud. These instructions satisfy the first paragraph of Section 2314 as construed in Quintanilla, 2 F.3d at 1474.

Although Gooch argues that Section 2314 requires the active participation of the defendant in the movement of the stolen property, aiding and abetting is also punishable under 18 U.S.C. § 2(...