U.S. v. Hunt

• Decision Date: 09 August 2006
• Docket Number: No. 05-6023.,05-6023.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Vincent HUNT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.3d 1255

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Vincent HUNT, Defendant-Appellant.

No. 05-6023.

United States Court of Appeals, Tenth Circuit.

August 9, 2006.

Susan Dickerson Cox, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, with her on the briefs), Oklahoma City, OK, for Plaintiff-Appellee.

Robert L. Wyatt IV of Wyatt Law Office, Oklahoma City, OK, (Gloyd L. McCoy of McCoy Law Firm, Oklahoma City, OK, with him on the briefs), for Defendant-Appellant.

Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Gregory Hunt was indicted on 65 counts of securities forgery and 41 counts of money laundering, based on a series of checks he wrote transferring more than $2 million from his employer's bank accounts to private accounts under his control. He used the funds to engage in commodities speculation and to buy himself a boat. Later, he altered carbon duplicates of the checks to make it appear they had been written to a different payee. Over the course of two trials before the district court, he fabricated a document purporting to authorize the payments, then attempted to bribe a witness to give "beneficial" testimony at trial. The jury convicted him on all 106 counts, and he was sentenced to serve 63 months in prison and to pay millions of dollars in restitution and forfeiture.

Despite this series of flagrant deceptions, however, Mr. Hunt did not utter "forged" securities within the meaning of 18 U.S.C. § 513(a), the statute under which he was charged. Mr. Hunt signed the checks using his own true name, and the instruments explicitly and accurately identified him as an "authorized agent" of his employer. Whatever else he has done, Mr. Hunt did not commit forgery. With great reluctance, we must therefore reverse his conviction and remand the case with instructions to enter a judgment of acquittal.

I. Factual and Procedural Background

Mr. Hunt worked as the manager of the Orienta Cooperative Association ("Orienta") from April 1990 to February 2000. In that capacity, he had check-writing authority for two of Orienta's checking accounts at Cleo State Bank in Cleo Springs, Oklahoma. His name appeared on the signature cards, on file with the bank, for Orienta's general operating account and grain purchase account. So far as the bank was concerned, Mr. Hunt enjoyed unlimited check-writing privileges.

Privately, however, Orienta placed a number of limits on Mr. Hunt's authority to write checks as its agent. Mr. Hunt was authorized, for example, "to buy and sell grain," App. 465, to "buy and sell merchandise for the organization," id., and "to pay the legitimate bills" of the cooperative, id. at 468. Yet according to all seven individuals who served as members of Orienta's board during the relevant period, Mr. Hunt was not authorized to withdraw funds for purposes of hedging or speculating in agricultural commodities on behalf of Orienta.

Between March 1997 and December 1999, Mr. Hunt wrote a series of 65 checks totaling $2,014,482.55 drawn on Orienta's bank accounts. All 65 checks listed Orienta's name and address and were signed in ink by Mr. Hunt, using his own signature on a line labeled "AUTHORIZED SIGNATURE." App. 1246-1373. The first 5 were payable to "B & H Special" and the remaining 60 were payable to "B-H Inc." Neither payee was a legitimate creditor of Orienta.

All but two of the checks were deposited in a "B & H Special" account at the First National Bank of Thomas in Thomas, Oklahoma, controlled by Mr. Hunt and his nephew, Bruce Brinson. (The "B" and "H" stood for Brinson and Hunt.) Whenever the First National Bank of Thomas contacted the Cleo State Bank to verify the sufficiency of funds in Orienta's accounts, providing the account number, check number, date, and Mr. Hunt's name as the person who signed the check, the Cleo State Bank responded that "it was okay" and "that it was a true check." Id. at 917. Mr. Hunt used the other two checks, which totaled $71,500, to purchase a $60,000 cashier's check for deposit in a commodities investment account at R.J. O'Brien, and deposited the $11,500 balance in the B & H Special account. Although the checks themselves were never altered, at some point pink carbon copies of some checks written to "B-H Inc." were altered to list the payee as "B-K Inc." — the name of a former customer of Orienta.

For trial, the government produced a summary of all activity in the B & H Special account between March 1997 and February 2000. Almost all of the more than $2.09 million deposited in the account came from Orienta; the only other sources of funds were approximately $112,000 in deposits from an account at Archer Daniels Midland Investor Services ("ADMIS") and $26,000 in transfers from Mr. Hunt's personal account at the First National Bank of Thomas. Meanwhile, Mr. Hunt used the account to transfer more than $1.58 million to the ADMIS account and more than $142,000 to the R.J. O'Brien account for purposes of commodities hedging and speculation. Those transactions served as the basis for the 41 counts of money laundering in the indictment. He also transferred nearly $340,000 to his personal account, and wrote smaller checks worth thousands of dollars to his nephew and other family members. In April 1997, he used the account to buy himself a Glastron boat, 115 horsepower engine, and trailer, at a cost of more than $15,000. A year later he used the account to make a $1,500 donation to the Kappa Alpha Order, and in October 1998 he used it to make a $4,500 purchase at Sander Sporting Goods & ATVs.

Mr. Hunt's first trial took place in June 2001. He admitted using Orienta funds to hedge and speculate in commodities, but defended on the ground that the Orienta board of directors had authorized him to do so. United States v. Hunt, 62 Fed. Appx. 272, 274 (10th Cir. Apr.3, 2003) (unpublished). Indeed, he claimed that the board had entered a written trading agreement authorizing him to invest on Orienta's behalf and to collect a 10% commission for himself, but that the document must have been stolen during a burglary of his home. The jury convicted him on all 106 counts. He was sentenced in November 2001 to 70 months in prison, more than $2.1 million in restitution, and more than $1.6 million in forfeiture. Mr. Hunt did not serve any time, however, because the district court granted his motion for release pending appeal.

In September 2003, Mr. Hunt moved for a new trial based on newly discovered evidence. Attached to the motion was a document entitled "TRADING CONTRACT," dated March 15, 1994 and signed by the President and Secretary of the Orienta board of directors, purporting to "grant permission and authorize Manager Greg Hunt to trade futures commodities on behalf of the Orienta Cooperative Assn." App. 2322. Mr. Hunt claimed to have found the lost document in a dusty vinyl portfolio wedged in the back of a filing cabinet in his home. Within three days, a forensics expert determined that neither official had in fact signed the "trading contract," and that the signatures had been photocopied from other documents. With the deception exposed, the district court granted a motion by Mr. Hunt to withdraw the request for a new trial.¹

In March 2004, the district court granted a motion by Mr. Hunt to vacate his sentence pursuant to 28 U.S.C. § 2255. Mr. Hunt argued that he received ineffective assistance of counsel at trial because his attorney, Wayne Fournerat, had solicited Orienta stockholders to join a class-action shareholder suit against Mr. Hunt and members of the Orienta board. Some time before trial, Mr. Fournerat had discovered the existence of annual errors and omissions insurance policies, each with a limit of $5 million, that appeared to cover Mr. Hunt's wrongdoing. By collecting on policies from several consecutive years, Mr. Fournerat believed he could win the class an award "into the tens of millions," and he undoubtedly realized that a guilty verdict for Mr. Hunt would greatly assist the shareholder suit. Order of Mar. 5, 2004, at 7. The district court found that Mr. Fournerat "operated under an actual conflict during the trial and that conflict actually affected the adequacy of his representation." Id. at 11. It therefore granted Mr. Hunt a new trial.

Mr. Hunt's second trial took place in September 2004. This time Mr. Hunt elected not to testify. As part of its case-in-chief, the government introduced evidence of the altered pink carbon copies of the checks and the fabricated trading contract with photocopied signatures. In addition, a member of the Orienta board named John Warfield testified that Mr. Hunt approached him before the second trial and offered him a bribe, assuring him that he would be "well compensated or well paid" if he could "give any testimony that would be beneficial." App. 670. The district court immediately sustained an objection under Rule 404(b) of the Federal Rules of Evidence on the ground that the prosecution had failed to properly notify the defense of that line of questioning, and instructed the jury to disregard the statement.

Once again, Mr. Hunt was convicted on all 106 counts. His second sentence called for a slightly shorter prison term of 63 months, but included the same multimillion dollar restitution and forfeiture penalties as the first sentence. Also, once again, the district court granted Mr. Hunt's motion for release pending appeal. Mr. Hunt indicated that he planned to appeal, in part, on the ground that he had not committed forgery within the meaning of 18 U.S.C. § 513(a). In its ruling, the district court explained:

I think there is a plausible argument, at the least, that the defendant was charged under the wrong statute, and it certainly caused a lot of work in my chambers. . . . I think [my decision is] supported by the case law but I think there is, at the least, a very plausible argument to the contrary. . . . Because of the...