U.S. v. Kimmel

• Citation: 777 F.2d 290
• Decision Date: 27 November 1985
• Docket Number: No. 85-4030,85-4030
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard H. KIMMEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 290

777 F.2d 290

UNITED STATES of America, Plaintiff-Appellee, v. Richard H. KIMMEL, Defendant-Appellant.

No. 85-4030.

United States Court of Appeals, Fifth Circuit.

Nov. 27, 1985.

Hardy Lott, Sam N. Fonda, Greenwood, Miss., and Allan A. Ackerman, Chicago, Ill., for defendant-appellant.

Glen H. Davidson, U.S. Atty., and Thomas W. Dawson, Asst. U.S. Atty., Oxford, Miss., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before CLARK, Chief Judge, BROWN and GEE, Circuit Judges.

GEE, Circuit Judge.

Appellant Richard Kimmel was charged under 18 U.S.C. Sec. 1341 with 23 counts of mail fraud and with obstruction of justice. Tried and found guilty of the mail fraud counts, he asserts on appeal that certain evidence was wrongfully excluded and that several jury instructions were erroneous. We conclude that his trial was conducted properly and therefore affirm his convictions.

In 1976 Kimmel purchased Medart, Inc., a Greenwood, Mississippi manufacturing operation, and contracted with ITT Commercial Finance Corporation to finance his purchase. The contract contained several financing arrangements, one of which involved Medart's accounts receivable. Under this particular arrangement, the amounts of ITT's loans were to be based on a percentage of current accounts receivable as reported by Medart to ITT. Medart was to assign all receivables to ITT in return and was required to forward receipts with each report submitted.

Because he used the United States mail to send these reports, Kimmel fell foul of the federal criminal laws, violating 18 U.S.C. Sec. 1341 between January and April 1980 by sending a series of false reports to ITT. These reports omitted payments totaling over $660,000 that Kimmel had diverted into personal bank accounts. His ruse discovered, this trial eventually followed. Kimmel argued at trial that the diversions were a good faith attempt to keep Medart solvent, but the jury chose to disbelieve his tale and found him guilty on all mail fraud counts. Kimmel's only solace came from a finding of not guilty on the obstruction of justice count involving his alleged attempt to intimidate a witness. He now appeals, advancing various arguments for reversal.

I.

Kimmel first complains of the exclusion of certain evidence. In August 1981, ITT executed a written release absolving Kimmel from civil legal liability. Kimmel tried to introduce this release as evidence of his good faith in withholding the funds. The trial court held the release to be irrelevant, however, and refused to allow its admission. Although Kimmel challenges this refusal, we may not second guess the trial judge's evidentiary rulings absent an obvious abuse of discretion. No abuse appears here; rather, the court's decision appears to be fully justified. Kimmel's argument founders because of its inaccurate premise that ITT's release is logically relevant to Kimmel's good faith diversions of the receipts. The release came eighteen months after the diversions and gives not the slightest indication of what went through Kimmel's mind as he mailed the false reports. The exclusion of the release therefore provides no basis for reversal. Cf. United States v. Welliver, 601 F.2d 203, 210 (5th Cir.1979), (board of directors' subsequent acquiescence in a bank officer's misappropriation of funds held irrelevant in determining the officer's intent).

II.

Most of Kimmel's arguments focus on particular jury instructions, each of which we must consider to discern whether error occurred. We commence with the trial court's instruction on inferring intent:

As a general rule it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his knowing acts. The jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing his knowledge should reasonably have expected to result from any act of conscious omission and any such inference drawn is entitled to be considered by the jury in determining whether or not the government has proved beyond a reasonable doubt that the defendant did possess the required intent.

Although this court, sitting en banc, approved an almost identical instruction in United States v. Chiantese, 560 F.2d 1244, 1255-56 (5th Cir.1977), cert. denied sub nom. Cerrella v. United States, 441 U.S. 922, 99 S.Ct. 2030, 60 L.Ed.2d 395 (1979), Kimmel nevertheless asks us to forbid its further use.

Admittedly, it bears a faint resemblance to certain instructions which effectually (and unconstitutionally) relieve the government from proving the intent element of a crime. See Francis v. Franklin, 471 U.S. ----, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Chiantese, 560 F.2d at 1255. Despite the similar wording, however, an instruction announcing a mandatory presumption differs sharply from one allowing a jury to infer intent. "A permissive inference does not relieve the state of its burden of persuasion because it still requires the state to convince the jury that the suggested conclusion should be inferred based on the predicate facts proven." Francis, 471 U.S. at ----, 105 S.Ct. at 1971, 85 L.Ed.2d at 353. This difference is dispositive. The Supreme Court has prohibited instructions mandating an inference of intent because of their likely effect on the jury:

The challenged sentences are cast in the language of a command. They instruct the jury that "acts of a person of sound mind and discretion are presumed to be the product of the person's will" and that a person "is presumed to intend the natural and probable consequences of his acts".... The jurors "were not told that they had a choice or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory."

Francis, 471 U.S. at ----, 105 S.Ct. at 1972, 85 L.Ed.2d at 354-55, quoting Sandstrom, 442 U.S. at 515, 99 S.Ct. at 2454 (emphasis added by the Francis Court). No such effect is likely here. Because the trial court never directed the jury to infer Kimmel's intent, we decline the invitation to ignore existing precedent on this kind of instruction. While both the Supreme Court and we have struggled often with inferred intent instructions, that given here is clearly acceptable and we are duty bound to follow the law approving its use.

Kimmel next attacks the court's instructions regarding his good faith defense, seen by him as "the key issue," asserting that the trial court "watered down" the instruction by suggesting that the defense does not justify false representations made to ITT. ¹ We test the instruction not against Kimmel's recommended instructions--for he lacks the right to have his recommendations adopted word for word--but against the law. "A district court has substantial latitude in tailoring his instructions as long as they fairly and adequately cover the issues presented by the case." United States v. Pool, 660 F.2d 547, 558 (5th Cir.1981). Although we approved an instruction much like this one in United States v. Wilkinson, 460 F.2d 725, 729 (5th Cir.1972), we must now examine the totality of the circumstances at trial; detached scrutiny of an instruction's four corners no longer suffices to determine its propriety. United States v. Gray, 751 F.2d 733, 735-36 (5th Cir.1985).

In reality, a criminal defendant's good faith defense is the affirmative converse of the government's burden of proving his intent to commit a crime. Because this relationship exists, we must look at all opportunities Kimmel had to rebut the evidence suggesting his intent to defraud. The record shows that Kimmel testified about his motivation and that his counsel argued at length about Kimmel's good faith. The court's charge, taken as a whole, in no way shortchanged Kimmel; to the contrary, Judge Biggers devoted much effort to explaining the government's burden of proving specific intent. In Gray we saw no error in the trial judge's refusal to give a good faith instruction because, "[t]aken together, the trial, charge, and closing argument laid Gray's theory squarely before the jury." 751 F.2d at 736. The facts of this trial show that Kimmel had just as great a chance to make his case.

We therefore move to Kimmel's next target on appeal, a "consciousness of guilt" instruction. As we noted above, the indictment contained 23 mail fraud counts and one obstruction of justice count for Kimmel's alleged intimidation of a witness. In charging the jury, the court instructed that, should the jury find Kimmel guilty of the obstruction of justice count, it might then view the attempted intimidation as relevant evidence in deciding whether the mail fraud occurred. This was proper; we have recognized the relevance of efforts at witness intimidation in showing the criminal defendant's consciousness of guilt about other crimes charged. See United States v. Bright, 630 F.2d 804, 821 (5th Cir.1980). That the jury found Kimmel not guilty of the obstruction of justice count can hardly be said to strengthen his claim of error.

Armed with instructions such as these, the jury retired to deliberate at 12:15 P.M. At about 6:00 P.M. on the same day the jury requested the court's guidance:

If the party, ITT, does not live up to certain parts of the contract, withholding nine hundred thousand dollars credit and cutting money returned to fifty percent, would this relieve Medart of the obligation of sending all receivables to ITT?

The court, however, declined to provide further instruction:

That is a question of fact, which you must answer from the testimony that you have heard. It is not a question that the court can answer. That is your obligation, your responsibility, and your area, not mine, to answer that question. You take that answer from the testimony that you have...