U.S. v. Johnson, 96-3337

• Decision Date: 06 August 1997
• Docket Number: No. 96-3337,96-3337
• Citation: 120 F.3d 1107
• Parties: 97 CJ C.A.R. 1508 UNITED STATES of America, Plaintiff-Appellee, v. Mary Katherine JOHNSON, Defendant-Appellant,
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1107

120 F.3d 1107

97 CJ C.A.R. 1508

UNITED STATES of America, Plaintiff-Appellee, v. Mary Katherine JOHNSON, Defendant-Appellant,

No. 96-3337.

United States Court of Appeals, Tenth Circuit.

Aug. 6, 1997.

Jackie N. Williams, United States Attorney, and Robert S. Streepy, Assistant United States Attorney, District of Kansas, Kansas City, KS, for Plaintiff-Appellee.

Roger L. Sherman, Overland Park, KS, for Defendant-Appellant.

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

SEYMOUR, Chief Judge.

Mary Johnson was charged with one count of devising and aiding and abetting the execution of a scheme to defraud, in violation of 18 U.S.C. §§ 1343, and 2. She was found guilty by a jury, sentenced to probation, and ordered to pay restitution. On appeal, she contends that the evidence was insufficient to support her conviction and that she was tried in violation of both her constitutional right to a speedy trial and the Speedy Trial Act, 18 U.S.C. §§ 3161 to 3174. We hold that her trial violated the Speedy Trial Act, and we reverse and remand to the district court for further proceedings.

I

We turn first to the sufficiency of the evidence. ¹ "The elements of wire fraud under 18 U.S.C. § 1343 are: '(1) a scheme or artifice to defraud or obtain money by false pretenses, representations or promises; and (2) use of interstate wire communications to facilitate that scheme.' " United States v. Cochran, 109 F.3d 660, 664 (10th Cir.1997) (quoting United States v. Drake, 932 F.2d 861, 863 (10th Cir.1991)). In reviewing a challenge to the sufficiency of the evidence, we must determine whether, after viewing the record most favorably to the government, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In answering this question, we may neither weigh conflicting evidence nor consider the credibility of witnesses." United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir.1997) (citations and internal quotations omitted).

Viewed in this light, the record reveals that Ms. Johnson participated in a scheme in which she and her brother, Thomas Whitlow, and others selected elderly victims from phone books and elsewhere, called the victims pretending to be a relative in trouble, and requested the victims to wire money for bail or for other fabricated emergencies. In support of the specific incident underlying the charge against Ms. Johnson, the government offered evidence that Mr. Whitlow placed several phone calls from a jail cell in which he was being held. The first call was placed collect to the victims, Mr. and Mrs. Ledbetter. The Ledbetters testified that they received a call and spoke with two men, one who claimed to be their grandson and the other who claimed to be a police officer. The men told Mr. Ledbetter that the purported grandson had been involved in an accident and needed $4000 to post bail and get out of jail. The Ledbetters wired the money via Western Union. Ms. Johnson, accompanied by members of her family and Jonathan Young, went to a grocery store with a Western Union office. Mr. Young went into the store, obtained the wired funds, and gave the money to Ms. Johnson, who in turn gave Mr. Young $200. Thomas Whitlow then called Ms. Johnson's phone number from jail and arranged three-way calls to the Ledbetters. One call informed the victims that the $4000 had been received and another unsuccessfully requested an additional $6000. Although Ms. Johnson presented an alibi defense at trial, the telephone records, the testimony of Jonathan Young, and the evidence of admissions made by Ms. Johnson during two interviews with a police officer investigating Thomas Whitlow, are clearly sufficient to support a finding that she was a knowing participant in the scheme.

Ms. Johnson asserts the evidence is insufficient because there was no indication she participated in the first phone call made collect from the jail to the Ledbetters, in which they were requested to wire the $4000. Relying on United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), Ms. Johnson contends the fraudulent scheme was completed by that first phone call so that her subsequent actions in placing the three-way calls, recruiting Mr. Young to retrieve the money, and dividing it were therefore not taken in furtherance of the scheme. In Maze, the Supreme Court held that because the fraudulent scheme there had come to fruition before the mailings in question were made, the mailings were not sufficiently related to the scheme to fall within the purview of the mail fraud statute. See generally United States v. Cardall, 885 F.2d 656, 680-82 (10th Cir.1989) (discussing Supreme Court's treatment of the scope of the mail fraud statute). Ms. Johnson's assertion that the fraudulent scheme here came to fruition upon completion of the first phone call to the victims is ludicrous and her reliance upon Maze is therefore unavailing. Moreover, while the government need not prove a gain or a loss to establish a wire fraud violation, see United States v. O'Malley, 535 F.2d 589, 592 (10th Cir.1976), a defendant is guilty of aiding and abetting wire fraud when a fraudulent scheme does bear fruit if she is a knowing participant in bringing about the successful completion of the scheme. The evidence here showed Ms. Johnson's participation in obtaining the $4000 defrauded from the Ledbetters. The evidence was more than sufficient to support her conviction.

II

The acts underlying the charged crime occurred in July 1994 and the indictment was filed in February 1996. Ms. Johnson contends the government's delay in indicting her violated her constitutional rights to a speedy trial, citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). ² We agree with the government that Ms. Johnson's reliance on Barker v. Wingo is misplaced. That case concerned a defendant's Sixth Amendment right to a speedy trial, a right that is not triggered until an accused is formally charged or arrested. See United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). Ms Johnson bases her constitutional claim on preindictment delay, a matter receiving limited protection under the Due Process Clause of the Fifth Amendment. See United States v. Lovasco, 431 U.S. 783, 789, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752 (1977). Preindictment delay is not a violation of the Due Process Clause unless the defendant shows both that the delay caused actual prejudice and that the government delayed purposefully in order to gain a tactical advantage. United States v. Engstrom, 965 F.2d 836, 839 (10th Cir.1992).

Ms. Johnson has failed to make either showing. She asserts generally that her alibi defense was prejudiced by the lapse of time because the memories of potential witnesses have faded. However, she fails to identify any specific witnesses who would have been able to testify favorably to her had the trial been held earlier.

Vague and conclusory allegations of prejudice resulting from the passage of time and the absence of witnesses are insufficient to constitute a showing of actual prejudice for the purposes of impermissible preindictment delay; defendant must be able to show definite and not speculative prejudice, and in what specific manner missing witnesses would have aided his defense.

United States v. Jenkins, 701 F.2d 850, 855 (10th Cir.1983).

Ms. Johnson has also failed to establish that the delay was undertaken purposefully by the government to gain a tactical advantage or to harass. Indeed, Ms. Johnson concedes she does not know the reason for the delay. See Aplt.'s Br. at 14. The record likewise contains no evidence the government delayed indicting her for improper reasons. Ms. Johnson has thus failed to establish a constitutional violation arising from preindictment delay.

III

Ms. Johnson contends her rights under the Speedy Trial Act were violated. The Act provides that a defendant must be tried within seventy days from the filing date of the indictment or from the date on which the defendant appears before a judicial officer, whichever date is later. See 18 U.S.C. § 3161(c)(1). The indictment was filed on February 15, 1996, and Ms. Johnson made her appearance on February 20, 1996, starting the Speedy Trial Act clock.

Trial was originally scheduled to commence on May 13, 1996, a date within the seventy day period as extended by time attributable to pretrial motions under section 3161(h)(1)(F). On that date, the court held a hearing and ordered a continuance because it was engaged in another trial and no other district judge was available to take the case. At the hearing, the government requested the court to make a finding under section 3161(h)(8)(A) that the ends of justice would be served by a continuance, and also requested the court to note for the record that the government would find a continuance "helpful ... in providing transportation" for the Ledbetters, who lived in North Carolina. Rec., vol. II at 3. The court made an oral finding that a continuance would serve the ends of justice, giving as its only reason that the first available date for trial was June 24.

The government subsequently filed a written motion requesting the court to supplement the oral findings in support of the continuance by adding an additional finding that the continuance was needed to arrange transportation for the government's witnesses and to extend the trial date past the scheduled sentencing date for defendants in related cases who were to testify for the government at Ms. Johnson's trial. In response, the court issued an order adding the first of these reasons to its earlier finding that the ends of justice would be served by the continuance. Trial commenced on June 24. The parties agree on appeal that the trial was only timely if the continuance ordered by the court on May 13 pursuant to section 3161(h)(8)(A) resulted in excludable time.

The Speedy Trial Act...