U.S. v. Harris

• Decision Date: 02 May 1985
• Docket Number: 84-1199,Nos. 84-1184,s. 84-1184
• Citation: 761 F.2d 394
• Parties: 17 Fed. R. Evid. Serv. 1479 UNITED STATES of America, Plaintiff-Appellee, v. Yvonne HARRIS and Josephine Harris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 394

761 F.2d 394

17 Fed. R. Evid. Serv. 1479

UNITED STATES of America, Plaintiff-Appellee, v. Yvonne HARRIS and Josephine Harris, Defendants-Appellants.

Nos. 84-1184, 84-1199.

United States Court of Appeals,

Seventh Circuit.

Argued Jan. 21, 1985.

Decided May 2, 1985.

Robert B. Breisblatt, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Jeffrey S. Blumenthal, John A. Meyer, Chicago, Ill., for defendants-appellants.

Before BAUER and POSNER, Circuit Judges, and JAMESON, Senior District Judge. ^*

BAUER, Circuit Judge.

Defendant Josephine Harris was found guilty by a jury of forging CETA eligibility questionnaires and time sheets, submitting those documents for payment to the Archdiocese of Chicago, which operated the CETA program, and illegally receiving government funds pursuant to the Comprehensive Employment and Training Act of 1973, 29 U.S.C. Sec. 801 et seq. (1983), in violation of Sections 371, 665(a), and 1001 of Title 18 of the United States Code. The court sentenced her to three years imprisonment to be followed by five years probation and ordered her to make restitution in the amount of $150,000. The jury also convicted co-defendant Yvonne Harris of violating Sections 371 and 1001 and the court sentenced her to fifteen months imprisonment to be followed by five years probation. Both defendants appeal the jury's verdict.

I. FACTS

From 1978 through 1980, the Archdiocese of Chicago administered the Saint Charles Luwanga Lifeline Center in Chicago. The Center was financed by funds which the Archdiocese received from the United States Department of Labor under the Comprehensive Employment and Training Act of 1973 (CETA) to operate employment programs for poor youths. Katie Stanley, a co-defendant who is not a party to this appeal, was head supervisor at the Center. Stanley's job responsibilities included ensuring that participants in the employment program signed their work time sheets, collecting the signed time sheets and forwarding them to the Archdiocese for payment, and receiving paychecks from the Archdiocese to distribute to the program's participants.

Josephine Harris worked at the Center from 1978 to 1980 as an administrative assistant to Stanley. Her duties included helping youths prepare CETA job applications, filing participants' time sheets, and distributing paychecks to participants. Yvonne Harris did not work in the CETA program at the Center, but occasionally helped her mother, Josephine Harris, finish her work at the Center by signing time sheets for "participants" in the CETA program. Yvonne Harris testified at trial that she only signed time sheets for handicapped CETA participants who could not sign the time sheets themselves.

The evidence at trial showed that fictitious social security numbers were used on applications to the CETA program and that Yvonne Harris's medicaid card number was used in over sixty applications. Because eligibility for the program was based on federal poverty guidelines, possession of a medicaid card issued by the Illinois Department of Public Aid provided proof of eligibility. The evidence also showed that Stanley, Josephine Harris, and Yvonne Harris signed time sheets for individuals who were not participants in the CETA program, that Stanley and Josephine Harris submitted those time sheets to the Archdiocese for payment, and that all three defendants forged endorsements on the paychecks which the Archdiocese issued to the fictitious individuals and forwarded to the Center. Stanley would then cash the paychecks at a local currency exchange or with a local merchant whom she knew. The scheme was eventually uncovered by special agents of the United States Department of Labor, and defendants were subsequently tried and convicted.

II. EVIDENTIARY RULINGS

Defendant Josephine Harris alleges that the trial court committed reversible error in two of its evidentiary rulings. First, Harris contends that the trial court erred by limiting the cross-examination of a government witness, Brother Edmund Baran, concerning an investigation by the Archdiocese of possible fraud in its CETA program. On direct examination, Brother Baran testified that he had spoken to Katie Stanley regarding allegations of fraud in the CETA program as part of the investigation, and that he submitted a report to the Archdiocese incorporating Stanley's statements to him. Baran concluded in the report that no fraud had occurred, and the investigation was discontinued. On cross-examination, defense counsel attempted to question Brother Baran as to why the Archdiocese's investigation was discontinued, but the government's objection to this testimony was sustained. Josephine Harris argues that this ruling left the jury with the faulty impression that Stanley, by deceiving Baran, was responsible for halting the investigation as part of the defendants' conspiracy resulting in unfair prejudice to all the defendants.

A trial court's evidentiary rulings will not be reversed on appeal absent a clear showing of abuse of discretion. United States v. Cannon, 715 F.2d 1228, 1232 (7th Cir.1983) (citing United States v. West, 670 F.2d 675, 684 (7th Cir.), cert. denied sub nom., King v. United States, 457 U.S. 1124, 102 S.Ct. 2972, 73 L.Ed.2d 1359 (1982)). Pursuant to Rule 611(b) of the Federal Rules of Evidence, "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness." See West, 670 F.2d 684; United States v. Spatuzza, 331 F.2d 214, 217 (7th Cir.), cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38 (1964). We hold that the trial judge did not abuse his discretion by ruling that the testimony which Josephine Harris sought to elicit from Brother Baran was beyond the scope of the direct examination, and therefore excludable.

We first note that the defense objected when the government began questioning Brother Baran about the report during its case-in-chief. Tr. at 72. At a side-bar conference, the government stated that the testimony was being offered to show Katie Stanley's knowledge of the investigation and to infer that because she was not implicated by the investigation she was able to continue her fraudulent conduct. Tr. at 73. The testimony was admitted on that basis. Tr. at 74.

On cross-examination, counsel for Josephine Harris attempted to elicit testimony from Brother Baran as to why the investigation was discontinued, and the government objected. The trial judge ruled that this line of inquiry was irrelevant because the fact that the investigation was discontinued was at issue, not the reasons for the discontinuance. Tr. at 124. Moreover, the trial judge had not permitted the government to ask questions which would infer that Katie Stanley had lulled the Archdiocese into dropping the investigation as part of the conspiracy. Tr. at 123-24. Therefore, the testimony which Josephine Harris sought to elicit was beyond the scope of the prior direct examination, and the trial court did not commit reversible error by excluding it. See United States v. Stubin, 446 F.2d 457, 464 (3d Cir.1971) (trial judge properly excluded questioning irrelevant to prior direct examination). ¹

Josephine Harris also contends that the trial court erred in allowing Agent John Huheey to testify about statements made to him by a previous government witness, Harold Branch, during the course of the government's investigation of the fraud. Branch had been called as a witness by the government and had testified as to his knowledge of Josephine Harris's involvement in the scheme to defraud the CETA program. Later, Harris called Agent Huheey as a witness to impeach Branch and elicited testimony that he had interviewed Branch on June 18, 1979, and that during that interview Branch had made statements which contradicted his testimony at trial. On cross-examination, the government was allowed to elicit testimony from Agent Huheey, over defendant Harris's objection, about statements made by Branch during the June 18 interview which were consistent with Branch's testimony at trial. Harris contends that the trial court incorrectly admitted this testimony as a prior consistent statement by Branch to rebut the implication that Branch had fabricated his testimony at trial.

Rule 801(d)(1)(B) of the Federal Rules of Evidence provides that a prior statement is not excludable as hearsay, and may be offered for the truth of the matter asserted therein, when two requirements are met. First, the declarant must testify at trial and must be subject to cross-examination concerning the statement. Second, the statement must be consistent with the declarant's testimony and must be offered to rebut an express or implied allegation of recent fabrication or improper influence or motive. The case law imposes a further requirement that in order to be admissible a prior consistent statement must also have been made before the motive to fabricate existed. See, e.g., United States v. Feldman, 711 F.2d 758, 766 (7th Cir.1983); United States v. Quinto, 582 F.2d 224, 232-33 (2d Cir.1978). The reasoning underlying this additional requirement is that when the motive to fabricate exists at the time the prior consistent statement is made, that statement is not relevant to a rebuttal of an allegation of recent fabrication. In other words, evidence which merely shows that the declarant said the same thing at trial as he did on a prior occasion is of no probative value to rebut an allegation of recent fabrication when the declarant's motive in making both statements was the same "for the simple reason that mere repetition does not imply veracity." United States v. McPartlin, 595 F.2d 1321, 1351 (7th Cir.1979) (quoting 4 J. WEINSTEIN & M. BERGER, EVIDENCE p 801(d)(1)(B) at 801-117-18 (1981)). The prior statement would be relevant to rebut a charge of recent fabrication only if it had been made before the motive to fabricate arose. Thus, although a prior consistent...