U.S. v. Parker

• Decision Date: 09 January 2009
• Docket Number: No. 07-6239.,07-6239.
• Citation: 553 F.3d 1309
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Evan PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

553 F.3d 1309

UNITED STATES of America, Plaintiff-Appellee, v. Robert Evan PARKER, Defendant-Appellant.

No. 07-6239.

United States Court of Appeals, Tenth Circuit.

January 9, 2009.

Mark Henricksen, Henricksen & Henricksen, Lawyers, Inc., Oklahoma City, OK.

Scott E. Williams, Assistant United States Attorney (John C. Richter, United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, OK.

Before MURPHY, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

This case involves a scheme to sell defective airplane engines. Robert Parker and two co-defendants were accused of improperly overhauling small aircraft engines and falsely representing to customers that the engines met Federal Aviation Administration requirements. After a jury trial, Parker was convicted on five counts for his role in the scheme—one count for conspiracy, three counts for aiding and abetting or making or using false writings in connection with aircraft parts, and one count for mail fraud. The district court sentenced Parker to 72 months in prison and ordered him to pay $378,633 in restitution.

Parker appeals his conviction with five objections attacking the sufficiency of the evidence, several evidentiary rulings, and the amount of restitution. After carefully reviewing the record and legal authorities, we AFFIRM Parker's conviction and sentence.

I. Background

Parker was a long-time fan of single-engine aircraft and by the mid-1990s he started to deal with Good Aviation, an airplane mechanic shop which overhauls engines in Washington, Oklahoma. At Good Aviation two technicians, Larry Good and Michael Redpath, held airframe and powerplant (A & P) certificates from the Federal Aviation Administration, allowing them to work on domestic aircraft. Larry Good's son, Allen, also worked in the shop. Allen Good did not have A & P certification, but he did work on overhauling airplane engines, ostensibly under the supervision of either his father or his cousin, Michael Redpath. As early as 1998 Parker engaged Good Aviation to overhaul engines which he would sell to third parties, typically by advertising the engines in a trade journal, Trade-A-Plane.

The superceding indictment alleges a conspiracy between Parker and relevant parties at Good Aviation for the years 2000 through 2002. During that time Good Aviation overhauled approximately 17 engines for Parker. These engines were mostly Lycoming IO-360 engines, which are typically installed in small, home-built aircraft.

Allen Good did the bulk of the engine work for Parker. Each overhauled engine had a logbook describing the overhaul. Because Allen Good did not have A & P certification, either Larry Good or Michael Redpath would sign off on his work in the engine logbooks—the seal of good approval for rebuilt engines. Parker frequently visited Good Aviation to deliver parts for the engine overhauls, and to observe and direct work on the engines.

As part of the overhaul process, Parker was solely responsible for engraving data plates for the engines. Data plates affixed to engines must include information about the precise type and model of engine, especially if an engine is type certified. Good Aviation supplied the data plates and Parker used a local trophy shop to engrave them.

At trial, the government presented evidence regarding ten engines purchased during the conspiracy time-frame.¹ The government also introduced evidence of a few engine sales preceding the conspiracy time-frame. Several mechanics were called and testified in detail about the dysfunctional state of the engines. Victims testified that Parker told them the engines had been properly overhauled. But evidence at trial showed engines with cracks or rusted parts, missing or wrong parts, and other serious problems. Two engines caused in-flight failures and placed the pilots at substantial risk. None of the engines were airworthy and many were never installed in aircraft. Parker frequently sold the engines with an accompanying propeller. In every instance, the propellers were likewise found to be deficient because of cracks or other problems, rendering the propellers useless.

Parker and his co-defendants testified in their own defense. Parker claimed that he relied on logbooks, had no knowledge the repairs were fraudulent, and blamed all the problems with the engines on Good Aviation. The jury returned a conviction for Parker on all counts.

II. Discussion

Parker challenges his conviction and sentence on five grounds: (1) the district court wrongly admitted evidence of prior bad acts under Federal Rule of Evidence 404(b); (2) insufficient evidence; (3) improper hypothetical questions during cross-examination of Parker's character witnesses; (4) the sentence imposed was procedurally and substantively unreasonable; and (5) the restitution amount failed to provide an offset for the engines' core-value. We address each argument in turn.

A. Rule 404(b) evidence of sales predating the conspiracy

Parker first argues the district court erred in admitting evidence of prior bad acts under Federal Rule of Evidence 404(b) when the government introduced evidence of engine sales not listed as overt acts in the indictment. We review the district court's admission of evidence under Rule 404(b) for abuse of discretion. United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir.1997). Without objection at trial we review the admission only for plain error. United States v. Hill, 60 F.3d 672, 675 (10th Cir.1995).

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. ...

In weighing the admissibility of Rule 404(b) evidence, we consider four factors (1) whether the evidence is offered for a proper purpose, (2) whether the evidence is relevant, (3) whether the probative value of the evidence is substantially outweighed by its prejudicial effect, and (4) whether a limiting instruction is given if the defendant so requests. See Huddleston v. United States, 485 U.S. 681, 691, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988); United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000). The standard for satisfying Rule 404(b) admissibility is permissive: "[I]f the other act evidence is relevant and tends to prove a material fact other than the defendant's criminal disposition, it is offered for a proper purpose under Rule 404(b) and may be excluded only under Rule 403." United States v. Tan, 254 F.3d 1204, 1208 (10th Cir.2001).

Parker challenges two sets of engine sales admitted under Rule 404(b): (1) one set of sales during the charged conspiracy time, but not included in the charged overt acts, and (2) a second set of sales that occurred before the conspiracy.

Sales during conspiracy time-frame

Parker seeks to have three engine sales, which were not listed in the overt acts section of the indictment, excluded under Rule 404(b). The indictment charged Parker with conspiracy to make or use false statements in aircraft engine logbooks during the calendar years 2000 through 2002. The charged conspiracy covered the sale of unsafe airplane engines with accompanying false documentation, listing six overt acts, "among others" (R., Vol. 1 at 41 (indictment ¶ 9)), all in violation of 18 U.S.C. § 38(a)(3). Parker challenges three engines sold during the conspiracy time-frame to Messrs. Kardell² and Brown, and the Flemings, but not listed in the overt acts section. The government argues the transactions are intrinsic to the charged crimes and thus not subject to the Rule 404(b) limitation. We agree.

Rule 404(b) limits evidence of `other' crimes, wrongs, or acts—not the crime in question. Similarly, "[i]t is well settled that Rule 404(b) does not apply to other act evidence that is intrinsic to the crime charged." United States v. O'Brien, 131 F.3d 1428, 1432 (10th Cir. 1997); see also United States v. Arney, 248 F.3d 984, 992 (10th Cir.2001) (discussing Rule 404(b) as not applying to intrinsic evidence). Generally speaking, "[i]ntrinsic evidence is directly connected to the factual circumstances of the crime and provides contextual or background information to the jury. Extrinsic evidence, on the other hand, is extraneous and is not intimately connected or blended with the factual circumstances of the charged offense." Thomas M. DiBiagio, Intrinsic and Extrinsic Evidence in Federal Criminal Trials: Is the Admission of Collateral Other-Crimes Evidence Disconnected to the Fundamental Right to a Fair Trial, 47 Syracuse L.Rev. 1229, 1231 (1997). Because Rule 404(b) only limits evidence of `other' crimes—those extrinsic to the charged crime—evidence of acts or events that are part of the crime itself, or evidence essential to the context of the crime, does not fall under the other crimes limitations of Rule 404(b).

The three transactions within the charged conspiracy time-frame are intrinsic to the crime and substantiate the criminal conspiracy. They directly support the conspiracy charged, namely that Parker made or used false statements in connection with airplane parts and logbooks associated with the sales to Mr. Kardell, Mr. Brown, and the Flemings. These three sales provided direct proof of Parker's involvement with the crimes charged. The sales were not merely contextual, they supported elements of the charged crimes. Rule 404(b) only applies to evidence of `other' crimes—the transactions were part of the crimes charged, not some other crime.

Accordingly, the district court did not err in admitting the transactions.³

Sales outside the conspiracy time-frame

The government also introduced two engine sales outside the charged conspiracy time-frame, one to Ms. Pryce-Jones in 1999 and one to Mr. Peters in 199...