U.S. v. Jeffery

• Decision Date: 09 February 2011
• Docket Number: No. 09–5229.,09–5229.
• Citation: 631 F.3d 669
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Robert JEFFERY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

631 F.3d 669

UNITED STATES of America, Plaintiff–Appellee,

v.Robert JEFFERY, Defendant–Appellant.

No. 09–5229.

United States Court of Appeals, Fourth Circuit.

Argued: Oct. 28, 2010.Decided: Feb. 9, 2011.

ARGUED: Christopher Robert Kennedy Leibig, Zwerling, Leibig & Moseley, PC, Alexandria, Virginia, for Appellant. Ellen Ruth Meltzer, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Lanny A. Breuer, Assistant Attorney General, Criminal Division, Steve A. Linick, Andrew N. Gentin, Brigham Q. Cannon, Fraud Section, Criminal Division, United States Department of Justice, Washington, D.C.; Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.Before TRAXLER, Chief Judge, WILKINSON, Circuit Judge, and BOBBY R. BALDOCK, Senior Circuit Judge of the United States Court of Appeals for the Tenth Circuit, sitting by designation.Affirmed by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge WILKINSON and Senior Judge BALDOCK joined.

OPINION

TRAXLER, Chief Judge:

Robert Jeffery was convicted by a jury of theft of government property, see 18 U.S.C.A. § 641 (West Supp.2010), and conspiracy to steal government property, see 18 U.S.C.A. § 371 (West 2000), in connection with a scheme to steal fuel from a bulk “fuel farm” run by the United States Army in Iraq. Jeffery appeals, challenging his conviction and sentence. Finding no error, we affirm.

I.

As part of its military efforts in Iraq, the United States Army operated Victory Bulk Fuel Point (“VBFP”) within Camp Liberty, a military installation near the Baghdad International Airport. The VBFP supplied bulk diesel and jet fuel to the military and to certain government contractors in the Baghdad area. Contractors who were permitted to withdraw fuel were required to present a “Common Access Card” to gain access to Camp Liberty; to enter the VBFP, the contractor was required to present a “Memorandum for Record” (“MFR”), which was issued to the contractor by the United States government.

The evidence presented at trial established that in January 2008, Defendant Jeffery, who was retired from the Navy and then living in the Philippines, was recruited by his friend Robert Young to work in Iraq with Young and Lee DuBois, a retired Army captain. The group used forged documents to obtain common access cards to get access to Camp Liberty and used forged MFRs, supposedly issued on behalf of Future Services, a Kuwaiti company serving as a contractor to the United States government, to steal large quantities of fuel from the VBFP to sell on the Iraqi black market. The scheme was a profitable one, bringing in approximately $30,000 a day. Jeffery served as the lead escort for trucks making daily runs to draw fuel from the VBFP. Jeffery was paid $15,000 per month (later increased to $25,000 per month) for his services as an escort. The scheme ended in late May 2008, when Jeffery and his compatriots learned that their drivers and trucks had been covertly photographed and after they found tracking devices on some of the trucks.

The evidence presented at trial suggested that Jeffery initially believed that the group was working under a legitimate contract. After only a few weeks on the job, however, Jeffery was at least suspicious about the legality of the work. Jeffery left Iraq in early February 2008, during a period when the group was not making any fuel runs. Before he left, Jeffery told DuBois that he wanted no part of the contract if it was a “pirate contract.” J.A. 268.

After Jeffery left Iraq, Young sent him an email trying to explain the nature of the work. As to Jeffery's question to DuBois about the validity of the contract under which they were withdrawing the fuel, Young stated:

The contracts are valid, we are utilizing a condition of the contract—ie: the uploading of fuel, [without] the Company ... being aware of it. A contracting officer is on the payroll and we are using the proceeds for our own advantage.... Now that you are aware of the inherent risk involved, you['re] welcome to return.

.... We are planning on running this [until] 1 July and see how it looks at that time. I don't see a problem and this could go on for 1–2 years or more. I would appreciate it if you would not discuss the quasi legality of what we are doing to anyone.... The less known by others not involved—the better. If you want to come back [until] the end of June, great, then I want you next week.

J.A. 544 (emphasis added).

After receiving the email from Young, Jeffery returned to Iraq and continued working for the next few months. As the operation was winding down in May of 2008, Jeffery sent and received emails that strongly suggest his full awareness of the criminal nature of the enterprise. For example, on May 15, 2008, Young (who was then on vacation in the Philippines) sent an email to Jeffery and others stating that “Our golden goose is about to be run over by a tr[uc]k. Then we all go home ... hopefully, unless we get a vacation courtesy of [U]ncle [S]am looking out [through] the metal windows.” J.A. 581. Jeffery responded to that email by saying that he did not “have a sense that things are too far out of control,” but that if he believed “things are getting dangerous, you will be the first to know and I will be on a plane out of here to join you.” J.A. 580. On May 18, Jeffery sent an email saying that he kept “a healthy sense of paranoia on tap as well as an evacuation plan.” J.A. 643. Despite his misgivings, Jeffery continued to make fuel runs after sending these emails.

On May 23, Jeffery sent an email saying that he suspected “the Army is building a case” and that “[i]t is my sense it's time to shut this down and see how the dust settles. I do not have a sense of immediate panic, but think it prudent for me to bail out. I will make plans for Monday afternoon departure.” J.A. 674. In another email sent to Young the next day, Jeffery stated, “I feel the Army is connecting the dots and I do not feel like being inter[r]ogated. My gut tells me to go now. I am making arrangements for earliest departure.” J.A. 684. Soon thereafter, Jeffery told Young, “The goose is dead; I am gone.” J.A. 682. Jeffery left Iraq on May 26, 2008, and returned to the Philippines, where he was arrested several months later.

Jeffery and Young were indicted for conspiracy and theft of government property. DuBois, who was the first of the group to be arrested, pleaded guilty to an information and agreed to testify against the others. Young pleaded guilty about three weeks before trial was scheduled to begin, and Jeffery proceeded to trial alone. DuBois testified against Jeffery, and the jury convicted him on both counts. The district court imposed a below-Guidelines sentence of 48 months. This appeal followed.

II.

Jeffery first challenges the voir dire of the jury venire, arguing that the district court erred by refusing to use his proposed questions about reasonable doubt and the burden of proof. We disagree.

Jeffery submitted questions that he proposed be used during voir dire, including several questions that addressed the jurors' willingness to apply the reasonable-doubt standard and to hold the government to its burden of proof. ¹ The district court, however, did not use Jeffery's proposed questions. The court's voir dire consisted of fairly standard questions, such as whether the potential jurors knew about the facts of the case, or whether they or their family worked in law enforcement. The court did not ask any questions that explicitly mentioned the reasonable-doubt standard or the government's burden of proof, and the court asked only one question that touched on the obligations of the jurors when deciding the case.²

Jeffery urges us to hold that district courts should always include in their voir dire questions about a juror's ability to apply the reasonable-doubt standard and to hold the government to its burden of proof. If we are unwilling to adopt that rule, Jeffery urges us to hold that such questions must be asked in every case where the defendant so requests. Finally, Jeffery argues that even if the questions are not always required even if requested by the defendant, they were nonetheless required in this case, given the nature of the charges against him. According to Jeffery, the charges against him—stealing from the Army during wartime in a war zone—are highly inflammatory and could “raise[ ] the flag of treachery” in the minds of jurors. Brief of Appellant at 23. Moreover, Jeffery contends that his friendship with Young, the ringleader of the scheme, “could have led reasonable, conscientious, and patriotic jurors to have difficulty applying the burden of proof and reasonable doubt to Mr. Jeffery's actual conduct.” Id. Jeffery argues that the questions he proposed would have weeded out potential jurors who might not have been able to get past the nature of the crimes and, at the very least, would have allowed him to more intelligently exercise his peremptory strikes.

“Voir dire plays an essential role in guaranteeing a criminal defendant's Sixth Amendment right to an impartial jury,” in that “it enables the court to select an impartial jury and assists counsel in exercising peremptory challenges.” United States v. Lancaster, 96 F.3d 734, 738 (4th Cir.1996) (en banc) (internal quotation marks and alterations omitted). “Despite its importance,” however, “the adequacy of voir dire is not easily subject to appellate review.” Rosales–Lopez v. United States, 451 U.S. 182, 188, 101 S.Ct. 1629, 68 L.Ed.2d 22 (1981) (plurality opinion).

The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions. In neither instance can an appellate court easily second-guess the conclusions of the decisionmaker who heard and observed the...