U.S. v. Kroh
| Decision Date | 12 September 1990 |
| Docket Number | No. 89-1070,89-1070 |
| Citation | 915 F.2d 326 |
| Parties | 31 Fed. R. Evid. Serv. 289 UNITED STATES of America, Appellee, v. John A. KROH, Jr., Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Darrell McGowen, Glen Ellyn, Ill., Charles E. Atwell, Kansas City, Mo., for appellant.
Robert E. Larsen, Kansas City, Mo., for appellee.
Before LAY, Chief Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, en banc.
John A. Kroh, Jr. was convicted by a jury in District Court 1 of thirteen bank fraud charges: one count of conspiracy to submit false statements to federally insured banks, 18 U.S.C. Sec. 371 (1988); three counts of making false statements to federally insured banks, 18 U.S.C. Sec. 1014 (1988); four counts of causing interstate wire transmissions of money fraudulently obtained, 18 U.S.C. Sec. 1343; four counts of interstate transportation of money in execution of a scheme to defraud, 18 U.S.C. Sec. 2314 (1988); and one count of receiving and possessing money that had crossed state lines after having been unlawfully taken, 18 U.S.C. Sec. 2315 (1988). Kroh was sentenced to concurrent maximum sentences on all counts, the longest of which was ten years. He appealed the convictions asserting numerous grounds. A divided panel of this Court issued an opinion reversing all of Kroh's thirteen convictions, having determined that the admission of evidence of George Kroh's guilty plea was prejudicial error. United States v. Kroh, 896 F.2d 1524 (8th Cir.1990). The Court voted to grant the government's petition for rehearing en banc, thereby vacating the panel opinion, and we now affirm the convictions.
We adopt the panel opinion's detailed background statement of the facts of the case, 896 F.2d at 1526-28, with the exception of the statement concerning the practice of George Kroh's personal secretary in signing the name of Carolyn Kroh, George's wife, to personal guaranties: "Significantly, George Kroh's secretary testified this practice was directed by Mondschein or other company personnel and that George Kroh was never involved." 896 F.2d at 1528. In fact, the secretary testified that she signed Carolyn Kroh's name to guaranties either at George Kroh's direct request or because it was customary for her to do so. See 896 F.2d at 1539 n. 2 (dissenting opinion).
On appeal, Kroh challenges the following: (1) the application of 18 U.S.C. Secs. 2314 and 2315 to his activities; (2) the admission of evidence of the guilty plea of George Kroh, John's brother; (3) the admission of evidence of an uncharged check kite; (4) the alleged constructive amendment of the indictment because of the variance between the indictment and the proof; (5) an alleged erroneous instruction; and (6) the sufficiency of the evidence on all counts. The panel found issue (1) to be without merit. We adopt the panel's reasoning, 896 F.2d at 1528-29, and reject that argument as well. We also adopt the panel's reasoning confirming the sufficiency of the evidence on all of the twelve substantive counts. 896 F.2d at 1526, 1529-30. We decline to accept the panel's opinion as to issue (2) and issue (6), to the extent the opinion rejects the sufficiency of the evidence of conspiracy, and we examine issues (3), (4), and (5) for the first time here.
Having disposed of the first issue, we turn to Kroh's claim that evidence of his brother's guilty plea was improperly received. On April 13, 1988, before John Kroh's September 1988 trial, George Kroh appeared before Judge Scott O. Wright in the United States District Court for the Western District of Missouri. He entered a guilty plea to bank fraud charges then pending against him in the Western District of Missouri and the District of Kansas, among which was a charge that he conspired with his brother John to defraud banks. John Kroh's defense counsel filed a pretrial motion in limine to suppress references to George Kroh's plea agreement and resulting convictions during John's trial. At the hearing on this motion, the prosecutor told the district judge he intended to question George Kroh on direct examination about George's plea agreement with the government and his convictions, but stated that the written plea agreement would not be offered as evidence. The district judge said he would not allow the written agreement into evidence, nor would he allow the prosecutor to read from it. The judge did indicate that he would permit questioning of George Kroh concerning his convictions and the plea agreement, and further questioning by the government if the defense opened the issue on cross-examination. Transcript Vol. I at 9-10.
It is important initially to set forth in full the only references during the trial to George Kroh's guilty plea. Such elaboration in context will demonstrate that the plea was not presented in an inflammatory way and was not unduly emphasized, and will provide the basis for properly applying the law to the facts of this case.
During the government's opening statement, the prosecutor told the jury:
George Kroh will testify, Jack's brother. George Kroh will come in here and tell you first of all, he will tell you that he has pleaded guilty to several charges involving banks, that he has pleaded guilty in connection with a plea bargain with me; and he will lay that out for you.
The prosecutor's statement did not mention that George Kroh was charged with or pleaded guilty to conspiracy with his brother or anyone else. There was no objection by the defense.
During the government's direct examination of George Kroh, the government first established the witness's identity and his relationship to John Kroh and to Kroh Brothers Development Company (KBDC). The following exchange then took place:
The conspiracy charge was mentioned specifically only once and, in fact, a plea of guilty to conspiracy with John Kroh was never mentioned in this exchange. The reference was quite obviously in the context of setting out the entire agreement, and was not emphasized.
George Kroh's testimony was preceded by this limiting instruction, which also was read without material alteration as Instruction 22 at the close of all the evidence:
Ladies and gentlemen of the jury, before we begin the testimony of this witness, I have an additional instruction to read to you. You are going to hear evidence from the witness, George P. Kroh, who you will hear evidence that he has made a plea agreement with the Government. You may give his...
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