U.S. v. Parsons, 81-1016

• Decision Date: 21 April 1981
• Docket Number: No. 81-1016,81-1016
• Citation: 646 F.2d 1275
• Parties: 8 Fed. R. Evid. Serv. 39 UNITED STATES of America, Appellee, v. Anderson Dewell PARSONS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1275

646 F.2d 1275

8 Fed. R. Evid. Serv. 39

UNITED STATES of America, Appellee, v. Anderson Dewell PARSONS, Appellant.

No. 81-1016.

United States Court of Appeals Eighth Circuit.

Submitted March 6, 1981.

Decided April 21, 1981.

Boswell & Smith, P. A. by Floyd Clardy, Bryant, Ark., for appellant.

George W. Proctor, U. S. Atty., Fletcher Jackson, Asst. U. S. Atty., Little Rock, Ark., for appellee.

Before HEANEY, HENLEY and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

Anderson Dewell Parsons appeals from his conviction in the district court ¹ on five counts of misapplication of credit-union funds in violation of 18 U.S.C. § 657 and two counts of making false loans with the intent to defraud the credit union in violation of 18 U.S.C. § 1006. ² He was sentenced to eighteen months imprisonment on three of the misapplication counts, to be served concurrently, and three years probation on the remaining misapplication counts and false-loan counts, to be served consecutively to the term of imprisonment imposed on the first three counts.

For reversal of his conviction, Parsons argues that the district court erred in (1) overruling his motion to suppress a bankruptcy petition he filed and later voluntarily dismissed, (2) interrupting the direct examination of Parsons and requiring that his testimony be given in such a way as to conform to the prosecution's theory of guilt, and (3) failing to instruct the jury that it must find that the named debtors lacked the ability or intent to repay their respective loans. Parsons also contends that there was insufficient evidence to sustain a conviction.

Parsons, who was assistant superintendent in charge of instruction for the Benton Public School System for seventeen years until June of 1980, assumed the nonsalaried ³ position of treasurer of the Saline County Educational Federal Credit Union in 1976. As treasurer, he maintained the loan records and signed the checks for those who received loans from the Credit Union.

Count I concerns a personal check in the amount of $1,339.16 received by Parsons and deposited in his personal checking account. The drawer of the check was Cindy Fikes, a teacher in the Benton School System and a member of the Credit Union. The name of the payee was left blank. Ms. Fikes testified that she gave Parsons the check to pay her loan at the Credit Union. Parsons asserts that the check was, instead, a repayment of personal loans he had made to her . The transaction occurred on or about February 5, 1979, several months after Ms. Fikes had taken out three loans from the Credit Union in her name at the request of Parsons. One of those loans, all of which were made in April, 1978, was for $1,500.00, and provides the basis for Count II of the indictment. Parsons is charged in that count with misapplication of the $1,500.00 check, drawn on Credit Union funds. Ms. Fikes testified that she signed the loan applications at Parsons's request and gave the checks, other than one for $200.00, to Parsons. Bank records indicate that the $1,500.00 check was deposited into the account of Ed Elmore, a business associate and close friend of Parsons, who then wrote a check to Parsons for $1,200.00, apparently retaining $300.00 for himself.

Count III deals with a loan for $3,000.00 made to Parsons's son, Lamont, in April, 1977. Although only seventeen or eighteen years of age at the time, Lamont Parsons signed the application for the loan, stating that the money was to be used for the purchase of an automobile. The check, however, was turned over to Ed Elmore after being endorsed by Lamont. Elmore, who was not qualified to borrow from the Credit Union, deposited the $3,000.00 into his own bank account. Neither Credit Union committee members nor federal credit union examiners were aware of the true nature of the transaction until some time after the loan had been made.

A loan transaction involving Cindy Hogue, a teacher in the Benton School System and a member of the Credit Union, is the basis of Count IV. Ms. Hogue approached Parsons and inquired about entering into a financial arrangement similar to that set up with Cindy Fikes. He obliged by giving her $100.00 for taking out a loan, which he said was intended for a "third party," and informed her that she would not be responsible for the loan's repayment. Ms. Hogue endorsed a check for $3,334.09 received from the Credit Union and then returned it to Parsons. Parsons apparently gave the check to Ed Elmore, who made a second endorsement of the check, depositing it into his account. He next wrote a personal check to Parsons in the same amount as the Hogue check. This arrangement and "laundering" process were duplicated in an earlier, November, 1976, loan transaction with Anita Turbyfill, another Benton teacher. The amount involved there was slightly greater, $3,950.68, and Ed Elmore returned the money to Parsons through a total of three checks instead of one. Parsons is charged with misapplication of this amount in Count V.

The final two counts on which Parsons was convicted charge a conflict of interest in two loan transactions that occurred in April, 1978, and December, 1978, respectively. In the first, Annette Ford, an employee of the Benton Public Schools and a credit-union member, took out a loan for $3,000.00 at the request of Parsons. She received $300.00 and gave the remaining $2,700.00 to Parsons. In the second transaction, a $500.00 loan was taken out in the name of Michele Brown, daughter of Anita Turbyfill. Ms. Turbyfill signed her daughter's name on the loan application, endorsed the check, and returned it to Parsons. Although Ms. Turbyfill testified that she was under the impression that the money was going to an elderly person, it actually was received by Valene Parsons, Parsons's former wife, who eventually repaid the loan.

I. The Bankruptcy Petition

Parsons argues that a bankruptcy petition filed by him on February 20, 1980, should not have been admitted into evidence. ⁴ The petition listed as creditors with contingent claims the names of Anita Turbyfill, Cindy Hogue, Cindy Fikes, Lamont Parsons, Annette Ford, and Denise Parsons. ⁵ All of these individuals, except Denise Parsons, applied for and received loans from which either Parsons or Ed Elmore received the proceeds. Parsons contends that the contingent nature of the debts prevents the bankruptcy petition from being treated as an admission. He further asserts that the statements on the petition were those of his attorney and therefore inadmissible legal opinions and hearsay. Admitting the petition into evidence thus would violate the confrontation clause of the Sixth Amendment, he argues. We cannot agree.

Fed.R.Evid. 801(d)(2) provides:

A statement is not hearsay if

The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

It is clear that the bankruptcy petition is admissible under various subsections of the above rule even if we take as true Parsons's allegation that statements in the document (signed by him) were only those of his attorney. See United States v. Johnson, 529 F.2d 581, 584 (8th Cir. 1976), cert. denied, 426 U.S. 909, 96 S.Ct. 2233, 48 L.Ed.2d 835 (1976); Rule v. International Association of Bridge, Structural and Ornamental Ironworkers, Local Union No. 396, 568 F.2d 558, 569 n.17 (8th Cir. 1977); cf. United States v. Dolleris, 408 F.2d 918 (6th Cir. 1969), cert. denied, 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969). Several courts have permitted the introduction of bankruptcy schedules into evidence in criminal proceedings. See, e. g., Ensign v. Pennsylvania, 227 U.S. 592, 33 S.Ct. 321, 57 L.Ed. 658 (1913); Czarlinsky v. United States, 54 F.2d 889 (10th Cir. 1931).

The bankruptcy petition is neither lacking in probative value nor unduly prejudicial. The document shows Parsons considered that he might be responsible for the loans made to the listed creditors and corroborates the testimony of several witnesses. That the debts were listed only as contingent goes to the weight of the evidence, not its admissibility. The district court did not err in denying Parsons's motion to suppress the bankruptcy petition.

II. "Interruption" of Parsons's Direct Examination

Parsons's next contention on appeal is that the district court improperly interrupted the direct examination of the defendant and required that his testimony be given in such a way as to conform to the prosecution's theory of guilt. This contention is without merit.

The transcript indicates that, during the course of direct examination, Parsons's attorney was attempting to show that the check from Cindy Fikes, in the amount of $1,339.16 and dated February 5, 1979, represented a payment on a personal loan Parsons had made to her. Ms. Fikes had testified earlier that the check was actually a payment on money she had borrowed on her own initiative from the Credit Union. The ledger card of the Credit Union reveals that Cindy Fikes owed the institution $1,343.66 at the time she received loans made at the request of Parsons on April 3, 1978. ⁶ Ms. Fikes borrowed an additional $600.00 in her own right from the Credit Union in November, 1979. Parsons's attorney sought to combine these two loan amounts, and the prosecution objected, precipitating the following exchange:

(Defense): You testified that she already received $1,586.66 from the Credit Union. And now she's gotten another $600. What does that total to?

(Parsons): Well, it totals to $2,180.66, if my adding is...