U.S. v. Hope, 88-5099

Citation901 F.2d 1013
Decision Date22 May 1990
Docket NumberNo. 88-5099,88-5099
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alga HOPE, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Joseph S. Paglino, Miami, Fla. (court appointed), for defendant-appellant.

Dexter W. Lehtinen, U.S. Atty., and Richard Scruggs, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

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

Before HATCHETT and COX, Circuit Judges, and HENDERSON, Senior Circuit Judge.

PER CURIAM:

A jury empaneled in the United States District Court for the Southern District of Florida convicted Alga Hope, Jr., of violating 18 U.S.C. Sec. 371 by conspiring to commit an offense against the United States. 1

Hope appeals his conviction on various grounds. We affirm.

FACTS

Hope organized the Economic Development Corporation of Dade County, Inc. ("EDCO"), a private non-profit Florida corporation, to administer an economic development program in Miami, Florida. This program utilized community development block grant funds provided to Dade County, a grantee, through the United States Department of Housing and Urban Development ("HUD"). See 42 U.S.C. Secs. 5301 et seq.; 24 CFR Secs. 570 et seq. Pursuant to the statutory and regulatory schemes, Dade County submitted an annual proposal to HUD outlining its development plans and requesting federal grant funds. 2 Upon its approval of the county's proposal, HUD made the funds available to Dade County via a line of credit with the United States Treasury Department.

EDCO operated in the Miami community, and it was to EDCO that interested individuals and organizations applied for the federal funds. When EDCO identified and approved an "eligible recipient," it sought the approved amount from Dade County. In theory, Dade County then would request that sum from the Treasury Department, and upon receipt of the funds, Dade County would disburse the money to EDCO for ultimate delivery to the approved recipient. However, the Treasury Department required that all funds "drawn down" in this manner be disbursed within three days or be returned to the department. To avoid the wasteful receipt and return of funds due to unforeseeable delays, Dade County chose to distribute funds requested by EDCO from its general account, and after doing so, to request the appropriate reimbursement from the Treasury Department.

In early 1984, EDCO approved a $38,000.00 loan to Essie Redmond for The Learning Development Center ("The Learning Center"), a day care facility in Liberty City. 3 EDCO prepared and submitted the loan package and a check request to Dade County, which in April of 1984 issued a $38,000.00 county check 4 jointly payable to EDCO and The Learning Center. After issuing the check, Dade County completed the appropriate paperwork and was reimbursed by the Treasury Department pursuant to the line of credit arranged by HUD. This check was issued to the Board of County Commissioners of Dade County, Florida, and it was deposited in the county's account.

The check issued by Dade County to EDCO and The Learning Center never was endorsed by Redmond or any other agent of the Center. Instead, the check, bearing the stamped endorsement of EDCO, was deposited on May 4, 1984, into EDCO's revolving loan account at Tropical Federal Savings and Loan Association ("Tropical"). 5 The Learning Center received only $5,000.00. The remaining $33,000.00 was applied toward a $101,000.00 certificate of deposit purchased by EDCO on June 7, 1984, from Tropical. On the same day, EDCO used the certificate of deposit to collateralize a $101,000.00 line of credit at the same institution.

On July 5, 1984, EDCO utilized its line of credit at Tropical to purchase a $60,000.00 certificate of deposit from the Trust Bank. Some two weeks later, on July 19th, EDCO obtained a $60,000.00 line of credit from the Trust Bank using the $60,000.00 certificate of deposit as security.

In the middle of July, EDCO received a bank statement from Tropical reflecting a $38,453.23 withdrawal from EDCO's account. Hope met with EDCO employees Darryl Gorham (vice president for administration and operations), Persephone Taylor (supervisor of administration and finance) and Cassandra Smith (chief accountant), and he expressed concern that the auditors 6 would discover his diversion of this $38,000.00 earmarked for The Learning Center and his application of a portion of those funds towards the purchase of certificates of deposit and the establishment of the lines of credit. Hope asked Smith to restructure the bank statement from Tropical to eliminate the withdrawal. Smith did not complete the task.

On July 27, 1984, Hope and EDCO employee Gorham went to the Trust Bank where they met Marin. The three men retired to an office in the bank building where Marin solicited a loan for his corporation, ATJ Industries, Inc. Despite Gorham's objections about the absence of appropriate loan documents, Hope sent for EDCO's checkbook, and upon its arrival, he wrote a $30,000.00 check payable to ATJ Industries. 7 The check was drawn upon EDCO's Trust Bank account. 8

A short time later, Smith and Taylor discovered that a check had been written on EDCO's account without the appropriate documentation. Smith sought documentation from Gorham, who referred her to Hope. Both Smith and Gorham repeatedly attempted to procure the proper proof from Hope to support this check, which turned out to be the $30,000.00 paid to ATJ Industries. On or about August 11th, Jackie Simmer, a secretary for attorney William Calvo, prepared documents for a loan to ATJ Industries at the request of Marin. Hope appeared at EDCO with these documents some time later, and he instructed Taylor, a notary public, to notarize the signatures of Hope and Marin, who was not present, and to backdate the notarization to July 27, 1984, the date of the check. Taylor complied with this direction. The loan documents identified 100,000 shares of penny stock in the Candy Mountain Gold Mine as dubious security for the loan to ATJ Industries.

Eventually, EDCO's lines of credit at Trust Bank and Tropical came due. EDCO was unable to pay, and the certificates of deposit were forfeited. A federal grand jury indicted Hope in two counts of a three count indictment on November 20, 1986. In the count primarily concerned with this appeal, Hope and Marin were charged with violating 18 U.S.C. Sec. 371 by conspiring to embezzle, steal, purloin and convert to their own use over $100.00 in United States funds, in violation of 18 U.S.C. Sec. 641.

DISCUSSION

The main thrust of Hope's appeal is that in light of Tanner v. United States, 9 and United States v. Hope ("Hope I ") 10 the indictment here does not properly charge a violation of 18 U.S.C. Sec. 371. Section 371 describes two different offenses: (1) a conspiracy to defraud the United States; and (2) a conspiracy to commit any offense against the United States. See Hope I, 861 F.2d at 1578; United States v. Haga, 821 F.2d 1036 (5th Cir.1987); see also Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966) (two clauses in section 371 are alternative clauses). "The Supreme Court in Tanner explained that the conspiracies criminalized by section 371 are defined by the target of the conspiracy." Hope I, 861 F.2d at 1578. Tanner and Hope I both make clear that when proceeding pursuant to the "to defraud" clause, the indictment must allege and the proof must show that the object of the conspiracy was to defraud the United States or one of its agencies or departments. While acknowledging that the fraud may be accomplished either directly or indirectly by causing a third party to perpetrate the fraud, the Supreme Court declined the government's invitation to include within the scope of the statute conspiracies to defraud an intermediary performing official functions on behalf of the federal government. Tanner, 483 U.S. at 130-32, 107 S.Ct. at 2752-53, 97 L.Ed.2d at 111-13. Thus, in Hope I, the indictment was insufficient because it identified as the targets or objects of the conspiracy certain agencies and officials of Dade County. Nowhere in the indictment did the government identify any United States agency or department as either the object of the conspiracy or the target of any overt act. Moreover, by explicitly identifying county agencies as the ultimate targets of the conspiracy, the government precluded itself from introducing evidence that the United States was directly or indirectly the conspiracy's target. To permit the introduction of such evidence would result in a fatal variance from the language of the indictment. Hope I, 861 F.2d at 1577-78.

In Hope I, the government argued that the indictment was sufficient because it alleged as a second, independent object of the conspiracy the violation of 18 U.S.C. Sec. 1001. The panel noted that "[a] conspiracy to commit 'any offense' against the United States (here a Sec. 1001 offense) is as much a violation of Sec. 371 as is a conspiracy to defraud the United States." Id. at 1578. Emphasizing that the holding in Tanner applied with equal force to both clauses of section 371, the panel again relied upon the concept of "variance" and rejected the government's argument.

Again, by specifically referring to county departments and agencies as the targets of the conspiracy, to the exclusion of departments or agencies of the United States, the overt acts section of the indictment precludes the Government from presenting evidence as to a Sec. 371 conspiracy, no matter what its object. To permit the Government to do so would allow the possibility that the defendant could be convicted of an offense with which he had not been charged.

Id. at 1578.

Here, the government has avoided the errors identified in Tanner and Hope I. Proceeding under the "commit any offense" clause, the government alleged in the indictment that Hope and Marin conspired to...

To continue reading

Request your trial
20 cases
  • U.S. v. Falcone, 89-5718
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 11, 1991
    ...107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), in United States v. Hope, 861 F.2d 1574 (11th Cir.1988) (Hope I ), and United States v. Hope, 901 F.2d 1013 (11th Cir.1990) (per curiam), application for stay of mandate and cert. denied, --- U.S. ----, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991) (Hope II ), ......
  • U.S. v. Adkinson
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • February 23, 1998
    ...the victim of a Section 371 conspiracy. United States v. Hope, 861 F.2d 1574, 1577 (11th Cir.1988) (Hope I ); United States v. Hope, 901 F.2d 1013, 1018 (11th Cir.1990) (Hope II ). Four of the five conspiratorial objects (objects 2-5) alleged in Count I, however, describe a scheme targeted ......
  • State v. Touchet
    • United States
    • Louisiana Supreme Court
    • September 6, 1994
    ...Defendant must also show by clear and convincing evidence that a denial of his or her request would result in an unfair trial. U.S. v. Hope, 901 F.2d 1013 (11th Cir.[93-2839 La. 8] 1990), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991); Little v. Armontrout, 835 F.2d 1240......
  • Hipp v. Liberty Nat. Life Ins. Co.
    • United States
    • U.S. District Court — Middle District of Florida
    • August 15, 1999
    ...errors which seriously affect the fairness, integrity or public reputation of judicial proceedings." Id. (quoting United States v. Hope, 901 F.2d 1013, 1020 (11th Cir.1990)). The Court finds no basis in the record to find that the admission of Mr. Beasley's reports regarding backpay was pla......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT