U.S. v. Hawkins

• Decision Date: 13 July 1990
• Docket Number: No. 88-6242,88-6242
• Citation: 905 F.2d 1489
• Parties: 30 Fed. R. Evid. Serv. 762 UNITED STATES of America, Plaintiff-Appellee, v. Damian HAWKINS and Peter Hawkins, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

905 F.2d 1489

30 Fed. R. Evid. Serv. 762

UNITED STATES of America, Plaintiff-Appellee, v.Damian HAWKINS and Peter Hawkins, Defendants-Appellants.

No. 88-6242.

United States Court of Appeals Eleventh Circuit.

July 13, 1990.

L. Michael Roffino, P.A., Coral Gables, Fla., for Damian Hawkins.

Lori Barrist, Asst. Federal Public Defender, Miami, Fla., for Peter Hawkins.

Dexter W. Lehtinen, U.S. Atty., Thomas A.W. Fitzgerald, Linda Collins-Hertz, Michael G. Walleisa, and Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON, Circuit Judge, and HILL^* and HENLEY^**, Senior Circuit Judges.

JOHNSON, Circuit Judge:

The defendants, Damian Hawkins("Damian") and Peter Hawkins("Peter"), appeal from their convictions on five counts of mail fraud under 18 U.S.C.A. Secs. 2and1341, and one count of conspiracy to commit mail fraud under 18 U.S.C.A. Secs. 371and1341.

I.STATEMENT OF THE CASE

In February 1986, Damian, then 19 years old, established a coupon-clipping business called the Federal Redemption Center ("FRC") in Miami, Florida, for the ostensible purpose of obtaining coupons for redistribution by paying participants or "homeworkers" a percentage of the face value of coupons sent in to FRC.Homeworkers were solicited by means of a national advertising campaign in periodicals such as Globe and National Enquirer.Applicants were required to send in a registration fee of $18 (later increased to $23) in order to receive a kit explaining the details of the program and instructions for sending in the coupons.The advertisements stated that homeworkers could earn $300 a week by sending in coupons to FRC; in fact, only a handful of participants earned that much, and there was evidence that such an earnings rate was impossible unless an individual had stored up coupons for years.Although the advertisements stated that FRC was "willing to pay you 10% to 30% of the face value of each coupon you clip and send us," the kit mailed to homeworkers following registration limited the brands and types of coupons which were acceptable, and indicated that only rare "no expiration date" coupons would be redeemed for 30%, rather than 10%, of face value.

An FRC advertisement appearing in Globe on July 1, 1986 stated that "[i]n an effort to help major manufacturers such as Kellogg's, General Mills, Pillsbury and many others increase the public's use of coupons, we at [FRC] have formed a coupon clipping and marketing division."In fact, FRC had not established any program for marketing coupons, and FRC never had any relationship with any coupon-issuing manufacturers.On June 23, 1986, the Ralston Purina Company wrote a letter to FRC in response to FRC's advertisements stating that FRC's purported use of coupons, in particular transfer and resale, would violate the terms and conditions of Ralston Purina coupons and render them void.On August 19, 1986, the Kellogg Company wrote FRC a letter protesting the unauthorized use of the "Kellogg's" trademark and the advertisement's false suggestion that FRC's program was carried on with the endorsement, cooperation, or knowledge of the Kellogg Company.FRC subsequently dropped specific manufacturers' names from its advertisements, but continued to assert that its program was carried on "[i]n an effort to help major manufacturers increase the public's use of coupons."

FRC's advertisements promised applicants a full refund of the registration fee within 45 days of receipt of the kit, if they were dissatisfied for any reason, and also promised to refund the fee if a participant subsequently failed to make $300 a week or an average of $900 a month.Applicants who sought refunds did not, however, receive checks in response to their requests.Instead, they were sent "Return Status Sheets" to be painstakingly filled out by them and returned before their requests for refunds were considered.Those who persisted by filling out and returning the forms were often sent refund checks, but numerous applicants received refund checks from FRC which were returned for insufficient funds or because they were written on closed accounts.Some applicants also failed to receive their kits in the first place after sending in their registration fees, and some participants received bad checks in payment for their shipments of coupons to FRC.

In June 1986, Damian's 24-year-old brother Peter joined FRC.Peter set up computer and telephone systems for FRC and became actively involved in the advertising and solicitation efforts.In August 1986, after receiving thousands of complaints from FRC participants, the Postal Service began an investigation.On October 21, 1986, investigators searched FRC's premises and seized its records.On the same day, the Postal Service executed a hold on FRC's mail.On November 25, 1986, FRC and the Postal Service entered into a consent agreement under which FRC was allowed to continue to operate, but was required to establish separate trust accounts for those participants registered before and those registered after October 21, 1986, inform all participants that an investigation was being conducted by the Postal Service, and offer all participants a refund option.In accordance with the consent agreement, the hold on FRC's mail was lifted in late December.In February 1987, continued investigation revealed that FRC was not mailing information required under the consent decree to all participants.

An indictment charging nine counts against both defendants was returned on September 24, 1987, of which counts 1 through 8 alleged substantive mail fraud offenses, and count 9 a conspiracy.Jury trial commenced on October 24, 1988.The district court entered judgments of acquittal on counts 3, 7, and 8 when certain Government witnesses failed to appear.On October 28, 1988, the defendants were convicted on all remaining counts.On December 14, 1988, the district court sentenced Damian to 36-month concurrent terms on the substantive counts, and sentenced Peter to 30-month concurrent terms on those counts.Both defendants received consecutive 5-year terms of probation on the conspiracy count.On appeal, the defendants challenge the sufficiency of the evidence and certain evidentiary rulings by the district court.

II.ANALYSIS

A.Authentication and Hearsay Issues

A trial judge's evidentiary rulings will not be disturbed on appeal absent a clear abuse of discretion.United States v. Kelly, 888 F.2d 732, 743(11th Cir.1989).Furthermore, evidentiary and other nonconstitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant's substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.SeeUnited States v. Stout, 667 F.2d 1347, 1352(11th Cir.1982);United States v. Nill, 518 F.2d 793, 802(5th Cir.1975);Fed.R.Evid. 103(a).A defendant must specifically and timely object at trial to claimed errors, seeFed.R.Evid. 103(a)(1); errors claimed for the first time on appeal do not warrant reversal unless they constitute "plain error" amounting to a miscarriage of justice seriously affecting the fairness, integrity, or public reputation of the proceeding.SeeUnited States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1(1985);Fed.R.Crim.P. 52(b).¹

1.Authentication

Authentication is governed by Federal Rules of Evidence 901-903.The requirement is generally "satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims."Fed.R.Evid. 901(a).There need be "only some competent evidence in the record to support authentication," which can consist of merely circumstantial evidence.SeeUnited States v. Elkins, 885 F.2d 775, 785(11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1300, 108 L.Ed.2d 477(1990).Furthermore, Fed.R.Evid. 902(9) provides for the self-authentication of "[c]ommercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law."

The defendants contend on appeal that six items admitted into evidence were not properly authenticated: (1) Government Exhibit 8, the August 1986 letter to FRC from the Kellogg Company, (2) Government Exhibit 15, a collection of checks written by FRC in April and May of 1986 which were returned because of "uncollected funds,"(3) Government Exhibit 26, a check for $19.68 written by FRC to Sheila Davis on January 8, 1987, in payment for coupons sent by Davis to FRC, which was returned because of insufficient funds, (4) Government Exhibit 30, a check for $23 written by FRC to Martha Flickinger on January 8, 1987, in refund of Flickinger's registration fee, which was returned "account closed,"(5) Government Exhibit 37, a check for $23 written by FRC to Marilyn Young on January 8, 1987, in refund of Young's registration fee, which was returned "account closed," and (6) Government Exhibit 55, a collection of "Return Status Sheets," standardized forms used by FRC and filed in the regular course of business, on which dissatisfied applicants or participants recorded their reasons for requesting refunds and relevant identifying information.

No objection was raised at trial on any ground with regard to Exhibit 15, nor were any objections on authentication grounds raised with regard to Exhibits 37 or 55.Because any conceivable error as to these items falls far short of "plain error,"the defendants' contentions as to these items fail in any event.Peter himself authenticated Exhibit 55 on Government cross-examination, however, by admitting that the "Return Status Sheets" contained therein were FRC documents.Furthermore, Exhibits 15 and 37, along with Exhibits 26 and 30 (to which proper objection was raised), constitute self-authenticating ...