U.S. v. Pullman

• Decision Date: 11 May 1999
• Docket Number: No. 98-3251,98-3251
• Citation: 187 F.3d 816
• Parties: (8th Cir. 1999) United States of America, Plaintiff - Appellee, v. Marvin L. Pullman, also known as Dick Pullman, Defendant - Appellant. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 816

187 F.3d 816 (8th Cir. 1999)

United States of America, Plaintiff - Appellee, v. Marvin L. Pullman, also known as Dick Pullman, Defendant - Appellant.

No. 98-3251

United States Court of Appeals FOR THE EIGHTH CIRCUIT

Submitted: May 11, 1999

Filed: August 13, 1999

Appeal from the United States District Court for the District of Minnesota. [Copyrighted Material Omitted] Before RICHARD S. ARNOLD, JOHN R. GIBSON, and BOWMAN, Circuit Judges.

JOHN R.GIBSON, Circuit Judge.

Marvin Pullman appeals his conviction and sentence on three counts, conspiracy to commit offenses against or to defraud the United States, see 18 U.S.C. 371 (1994), aiding and abetting another in possessing or uttering a counterfeited security, see 18 U.S.C. 2 and 513 (1994), and aiding and abetting the obstruction of the Internal Revenue Service, see 18 U.S.C. 2; 26 U.S.C. 7212 (1994). Pullman, Marilyn Kerkvliet, and Milton Bigalk attended a meeting of the Montana Freemen, where the use of worthless certified money orders was discussed, and Marilyn Kerkvliet, Ronald Kerkvliet (Marilyn's husband) and Kenneth Bigalk (Milton's cousin) submitted such money orders to the I.R.S. in payment of taxes. There was also evidence of use of such money orders with state institutions, and evidence that Pullman participated with the others in filing a false tax return, setting up a fraudulent trust, investing in off-shore accounts, and sending threatening "non-statutory abatements" to the I.R.S. Pullman raises ten issues on appeal. Only his challenge to the conspiracy conviction and his interpretation of 18 U.S.C. 513 warrant substantial discussion, and we affirm the district court ¹ on all issues raised.

Pullman challenges the sufficiency of the evidence on his conspiracy conviction. We view the evidence in a light most favorable to the verdict, giving the verdict the benefit of all reasonable inferences, and will reverse only if the jury must have had a reasonable doubt concerning one of the essential elements of the crime. See United States v. McCarthy, 97 F.3d 1562, 1567 (8th Cir. 1996), cert. denied, 519 U.S. 1139 (1997).

Pullman testified that he became acquainted with Marilyn Kerkvliet, Ronald Kerkvliet, Milton Bigalk, and Kenneth Bigalk in 1991 through 1995. Pullman initially met Milton Bigalk at a sales meeting and later saw him at a meeting concerning tax problems in Canton, Minnesota. Pullman met the Kerkvliets at a "common law" meeting in Dover, Minnesota. Pullman had previous experience with tax and bankruptcy problems and acted as a consultant for Kenneth Bigalk.

In April 1995, Pullman, Milton Bigalk, and Marilyn Kerkvliet traveled together to a Montana Freemen meeting hosted by Leroy Schweitzer. A government agent. testified that Schweitzer had a practice of holding seminars in which he instructed the attendants on defrauding the I.R.S. with money orders. The money orders appeared to be drawn on a Montana Bank, but in fact, were worthless. A taxpayer would send a money order to the I.R.S. in an amount double the taxes owed, and when the I.R.S. issued a refund check for overpayment, the proceeds were to be split with Schweitzer. Pullman testified that at the meeting he heard Daniel Petersen, Schweitzer's assistant, state, "the I.R.S. [is] going to arrest all of us." The government entered into evidence tape recordings of the meeting seized from Pullman's business. The recordings showed that at the meeting, Pullman stated that using the money orders was "like playing Monopoly" and that if "we run out, we'll just go make some more." He also stated that he had previously been involved in distributing money orders that had "created havoc" in Washington D.C. At the meeting, Petersen also explained that the money orders had been used to deceive a private entity.

After the meeting, Milton Bigalk gave money orders to Kenneth Bigalk, and the Kerkvliets and Kenneth Bigalk submitted money orders to the I.R.S. in amounts roughly double their tax liability. Kenneth Bigalk submitted another money order to the I.R.S. in the amount of $1,022,236. Pullman possessed a $1,000,000 money order but never submitted it to the I.R.S. or any other entity.

The bank notified the I.R.S. that the money orders were worthless, and the I.R.S. did not credit or refund any proceeds. Milton Bigalk then sent a letter to the I.R.S. reciting that Marilyn Kerkvliet had sent a money order to the I.R.S., that the money order was in accordance with the I.R.S.'s own rules, and that the I.R.S.'s denial of the money order had been "protested." Milton Bigalk also talked to Kenneth Bigalk about sending a letter to the I.R.S. to expedite Kenneth's refund, and Kenneth wrote the letter.

Pullman knew that the Kerkvliets and Kenneth Bigalk had sent money orders to the I.R.S., yet he continued to visit Schweitzer and sent him a letter asking for more money orders and indicating that he would funnel them through Marilyn Kerkvliet to. Milton Bigalk and others. The evidence was unclear regarding how these money orders were to be ultimately used.

In August 1995, Pullman knew Ronald Kerkvliet had a $1,000,000 money order and knew that Kerkvliet was going to use the money order as security to become a state notary, yet Pullman notarized an affidavit in attempt to facilitate the process. A computer disk seized from Pullman's house contained a partially completed document, similar to the "protest letter" Milton Bigalk had sent to the I.R.S., except that it referenced Kenneth Bigalk's tender of a "draft" in the amount of $223,518 to the "Farmers Cooperative."

Pullman, the Kerkvliets, and Milton and Kenneth Bigalk formed corporations for investing money in off-shore accounts, and the Kerkvliets gave Pullman a power of attorney with regard to transactions for one of the corporations. Pullman, Milton Bigalk, and Marilyn Kerkvliet organized a seminar on how to use "non-statutory abatements," and Pullman gave an abatement to Kenneth Bigalk, who sent it to the I.R.S. The abatement threatened the I.R.S. with punishment if it did not rescind its notice to levy on Bigalk. Pullman also helped Kenneth Bigalk in Bigalk's efforts to "buy time" with the I.R.S. He helped Bigalk set up a trust, assisted in the preparation of an income tax return falsely reporting Bigalk's trust's income as zero, and notarized a document stating that Kenneth Bigalk was not a United States citizen.

The indictment charged Pullman, the Kerkvliets, Milton Bigalk, and Kenneth Bigalk with conspiring with each other and others in violation of 18 U.S.C. 371 which penalizes "two or more persons [who] conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose . . . ." The conspiracy count alleged a conspiracy to make false claims to the I.R.S., see 18 U.S.C. 287, to possess or utter a counterfeited security of an organization, see 18 U.S.C. 513, and to commit mail fraud, see 18 U.S.C. 1341. It also alleged a conspiracy to defraud the United States under the second clause of 18 U.S.C. 371. In defining the manner and means of the conspiracy, the indictment alleged that Schweitzer prepared and executed the money orders,² that the defendants possessed them and sent them to the I.R.S., and that the defendants participated in an off-shore investment scheme, created fraudulent trusts and income tax returns, and used intimidating documents to defraud and obstruct the I.R.S. The indictment also contained counts for making false claims to the I.R.S., aiding and abetting the possession or utterance of counterfeited securities, and aiding and abetting the obstruction of the I.R.S. The jury convicted Pullman on conspiracy to commit offenses against or to defraud the United States, aiding and abetting the possession or utterance of a counterfeited security, and aiding and abetting the obstruction of the I.R.S.

I.

With respect to the conspiracy conviction, Pullman claims there was no evidence of his agreement to defraud the I.R.S. He argues that there is no evidence connecting him to the mailing of any money orders to the I.R.S. He characterizes the evidence as evidence of separate acts, which he states perhaps establish multiple conspiracies, in none of which he participated. He makes no effort to identify or define the separate conspiracies. See, e.g., United States v. Holt, 969 F.2d 685, 687 (8th Cir. 1992) (defendants alleged four separate conspiracies). In essence, his argument is twofold: 1) there is not sufficient evidence from which the jury could conclude he agreed to defraud the United States and 2) the evidence showed multiple conspiracies, rather than the single conspiracy charged in the indictment, and he was prejudiced by the variance between the indictment's charge and the proof.

"Conspiracy is an . . . agreement to commit an unlawful act." Iannelli v. United States, 420 U.S. 770, 777 (1975). "[T]he agreement is the essential evil at which the crime of conspiracy is directed," and it "serves to distinguish conspiracy from aiding and abetting which, although often based on agreement, does not require proof of that fact." Id. at 777 n.10. The agreement can be inferred from circumstantial evidence. See id. "Once a conspiracy is established, even slight evidence connecting a defendant to the conspiracy may be sufficient to prove the defendant's involvement." United States v. Smith, 49 F.3d 362, 365 (8th Cir.) (quoting United States v. Ivey, 915 F.2d 380, 384 (8th Cir. 1990), cert. denied, 514 U.S. 1131 (1995).

The evidence and its reasonable inferences showed that Pullman, Marilyn Kerkvliet, and Milton Bigalk attended a meeting in which Schweitzer told them of a scheme to defraud the I.R.S. using money orders. Pullman knew of the scheme's object because of Schweitzer's instructions and because he heard that the I.R.S. was seeking to arrest Schweitzer and others. Pullman showed his consent to join by stating: "[If] we run out [of...