U.S. v. Robbins
| Decision Date | 22 May 2011 |
| Docket Number | Case No. 2:10CR00006. |
| Parties | UNITED STATES of Americav.Ronnie L. ROBBINS, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
OPINION TEXT STARTS HERE
Zachary T. Lee, Assistant United States Attorney, Abingdon, VA, for the United States.R. Wayne Austin, Scyphers & Austin, P.C., Abingdon, VA, for Defendant.
In this criminal case, I consider the defendant's post-trial Motion for Judgment of Acquittal.
The defendant, Ronnie L. Robbins, an Army veteran of the Vietnam era, was charged in a Superseding Indictment with using a falsely altered certificate of discharge (Counts One and Two), falsely representing that he had been awarded a military medal (Count Three), making false statements to obtain veteran's benefits (Count Five), and engaging in mail fraud in connection with his application for benefits (Count Six).1 He was tried by a jury and found guilty on all counts.
The defendant has filed a timely Motion for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29(c), contending that the evidence was insufficient to convict him of any of the charges. He also renews a constitutional attack as to Count Three. The government opposes the motion, which has been briefed and is ripe for decision.
After careful consideration of the record and the arguments made by counsel, I will deny the motion.2
The defendant argues that the government failed to carry its burden of proving the defendant's guilt. The government maintains that the guilty verdicts were supported by sufficient evidence.
In considering the evidence, I must keep in mind that “the jury, not the reviewing court, weighs the credibility of the evidence and resolves any conflicts in the evidence presented.” United States v. Burgos, 94 F.3d 849, 862 (4th Cir.1996) (internal quotation marks and citation omitted). In this process, I view the evidence and all reasonable inferences to be drawn therefrom in the light most favorable to the government. United States v. Perry, 335 F.3d 316, 320 (4th Cir.2003). The question is whether the convictions are supported by substantial evidence which is defined as “evidence that a reasonable finder of fact could accept as adequate and sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt.” United States v. Young, 609 F.3d 348, 355 (4th Cir.2010) (internal quotation marks and citation omitted).
Counts One and Three are supported by many of the same facts, and I consider them together. Count One charged the defendant with using, unlawfully possessing, or exhibiting a certificate of discharge from the military knowing it was forged, counterfeited, or falsely altered. 18 U.S.C.A. § 498 (West 2000). Count Three charged the defendant with falsely representing himself to have been awarded a military medal or decoration. 18 U.S.C.A. § 704(b) (West Supp.2010). In particular, the defendant was charged with claiming that he had been awarded the Vietnam Service Medal and Vietnam Campaign Medal.
The evidence at trial showed that defendant Robbins had served in the United States Army from 1972 to 1975, when he received an honorable discharge. He attained the rank of E–5 (sergeant) and last served as a military policeman at Fort Bragg, North Carolina. He did not serve overseas and accordingly was never awarded the Vietnam Service Medal or the Vietnam Campaign Medal.
The Veterans of Foreign Wars (“VFW”) is an organization of former members of the military who have served overseas. The defendant became active in the VFW and was selected as a district officer. In order to qualify, he was asked to provide proof of his military service overseas. Charles Raymond Wells, then the VFW district commander, testified at trial that in response to the request, Robbins had faxed him a certificate of discharge from the military, called a DD–214, in late 2006. This document, Government Exhibit Two, indicated that Robbins had foreign service of nine months and seven days and that he had received the Vietnam Service Metal and the Vietnam Campaign Medal, all of which was untrue. Wells was suspicious because of the appearance of the form and accordingly sent it on to Kim Deshano, who was an officer of the state VFW. An investigation ensued, and in 2007 Robbins was terminated from the VFW by the national organization.
The defendant argues that Wells' testimony was insufficient to prove the charge because Wells testified that the DD–214 shown to him at trial and introduced as an exhibit might not have been the same form he received from Robbins. Wells was concerned because the exhibit did not have a date or telephone number at the top of the page as normally shown on a faxed document. The defendant also argues that Wells was unworthy of belief. First, he needed to review his grand jury testimony to recall the year in which the event occurred. Second, he was inconsistent in naming the city in Vietnam where he said the defendant had claimed he had served. Third, Wells equivocated at trial about his earlier statement to the grand jury that he had seen the defendant wearing a Vietnam Service Medal.
Deshano also testified, and agreed that he had received the DD–214 from Wells. He testified that he had turned it into a PDF file and had destroyed the original document. He stated that he had scanned the entire document but acknowledged that the government's exhibit did not have numbers on it indicating that it once had been sent or received via facsimile transmission.
The guilty verdicts for Counts One and Three were supported by substantial evidence. While there were inconsistencies in the evidence, a jury could still reasonably infer from the testimony that the defendant sent the VFW a DD–214 that falsely showed that he had served overseas and had been awarded the medals in question. The jury could have properly determined that Wells was essentially credible, despite his lack of memory about some of the events that had occurred over four years before. Whether the false DD–214 was actually sent by Robbins because of the exhibit's lack of fax numbers was a matter for the jury to decide. The jury might have reasonably decided that it was an insignificant inconsistency either because Deshano's later scanning of the document obliterated those numbers or because the document had been delivered or mailed rather than being faxed, as Wells recalled.
In addition, there was significant corroborating evidence presented showing Robbins' guilt. For example, the government presented at trial a video of Robbins stating at a public Veterans Day event that he had served in Vietnam. His false assertion of having received the Vietnam War medals was obviously a way of supporting his claim of foreign service. Additionally, Robbins served as a county elected official and his political campaign materials on file with a local newspaper stated that he had received these medals. A former employee of Robbins, Shelbie Jean Willis, testified that in the fall of 2007, Robbins had shown her a DD–214 and pointed out that it indicated that he had received the two Vietnam service medals. He had also showed her and other employees an album of photographs that he said were taken when he served in Vietnam. Another former employee, Kathy Bare Stapleton, testified that in 2003 Robbins had told her that he had served in Vietnam. A fellow member of the VFW, James Allen Tickle, testified that Robbins had told him that he had served in Vietnam.3
Count Two charged the defendant with using or exhibiting a falsely altered certificate of discharge on a different occasion from Count One. In support of this charge, Paula Tate, a reporter for a local newspaper, testified for the government.
In a political campaign in the fall of 2006 Robbins' opponent had questioned Robbins' honesty about his military service. Tate identified two DD–214 forms as ones she had received from Robbins while investigating this political story for the newspaper. Robbins' DD–214 taken from the military archives, introduced by the government, contained zeros in the space on the form showing years, months, and days of foreign service. In the DD–214s given to Tate by Robbins, the zeros were gone and the vertical lines between the columns showing those zeros had also been removed, appearing to her that the original information had been “whited out.” (Trial Tr. 101, Mar. 1, 2011.) When she questioned Robbins about the fact that no foreign service was shown on the DD–214s he had given her, he told her that “although the record did not reflect service that he had, that ... there was service he had taken an oath not to discuss.” ( Id. at 104.) He told her at one point, “We were in places we weren't supposed to be, things I'm not supposed to talk about.” ( Id. at 105.)
The defendant argues that an alteration that does not have some element of falsity or deceit cannot support a conviction of false alteration. Therefore, he maintains, the absence of zeros on the DD–214s given to the reporter by Robbins is insufficient to support a conviction. The defendant argues that the documents, even if altered, did not contain any false or incorrect information and were therefore not “forged, counterfeited, [or] falsely altered” as charged.
Counterfeited means imitated, simulated, feigned, or pretended. United States v. Smith, 318 F.2d 94, 95 (4th Cir.1963). A counterfeit document is “an imitation of a genuine document having a resemblance intended to deceive and be taken for the original.” United States v. Anderson, 532 F.2d 1218, 1224 (9th Cir.1976) (quotation marks, citations, and alterations omitted). The common law definition of forgery is “ ‘the fraudulent making or alteration of a writing to the prejudice of another man's right.’ ” Gilbert v. United States, 370 U.S. 650, 657 n. 10, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962) (quoting Blackstone). As acknowledged by the Fourth Circuit in United States v. Pomponio, 558...
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