U.S. v. Slaughter, s. 97-1048

• Decision Date: 16 October 1997
• Docket Number: Nos. 97-1048,97-1005,s. 97-1048
• Citation: 128 F.3d 623
• Parties: UNITED STATES of America, Appellee, v. Anthony SLAUGHTER, Appellant. UNITED STATES of America, Appellee, v. Roy E. LEONARD, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 623

128 F.3d 623

UNITED STATES of America, Appellee, v. Anthony SLAUGHTER, Appellant.

UNITED STATES of America, Appellee, v. Roy E. LEONARD, Appellant.

Nos. 97-1048, 97-1005.

United States Court of Appeals,

Eighth Circuit.

Submitted May 20, 1997.

Decided Oct. 16, 1997.

Rehearing Denied in No. 97-1048 Nov. 21, 1997.

Michael Joyce, Kansas City, MO, argued, for Appellant Anthony Slaughter.

John Stapleton, Kansas City, MO, argued, for Appellant Ray Leonard.

John Stewart, Kansas City, MO, argued, for Appellee.

Before MURPHY and HEANEY, Circuit Judges, and ROSENBAUM, ^* District Judge.

ROSENBAUM, District Judge.

Anthony Slaughter and Roy Leonard were tried before a jury and convicted of conspiracy to commit wire fraud and wire fraud in August, 1996. They appeal their convictions. We affirm the judgment of the district court. ¹

I.

On June 3, 1996, a federal grand jury returned an 11-count indictment charging Slaughter, Leonard, and Willie Stafford with conspiracy to commit wire fraud and wire fraud. See 18 U.S.C. §§ 371 and 1343. The indictment charged Slaughter, Leonard, and Stafford ² with conspiring with others to defraud their employer, Ford Motor Company, by submitting fraudulent overtime claims. According to the indictment, Howard McDaniels, a superintendent at the Ford plant in Claycomo, Missouri, submitted fraudulent overtime claims on behalf of Slaughter, Leonard, and others.

Trial commenced August 12, 1996. McDaniels, who pleaded guilty to an earlier indictment concerning the same fraudulent scheme, testified at Slaughter's and Leonard's trial. According to McDaniels, he initiated the scheme in early 1993. He approached Ford employees and offered to adjust their overtime hours in return for cash kickbacks. As a Ford superintendent, McDaniels could enter the company's computer system and adjust employee hours throughout the Ford plant. Using this scheme, false payroll information was transmitted by interstate wire from the Claycomo plant to Ford's headquarters in Dearborn, Michigan. After a period of time, McDaniels asked Herman Moore, another Ford employee, to provide names and social security numbers of other employees who would participate in the scheme. Moore did so, collecting kickbacks from the employees he recruited and giving the money to McDaniels.

McDaniels testified to entering fraudulent overtime for both Slaughter and Leonard. McDaniels stated he dealt directly with Leonard, while Moore recruited Slaughter. Evidence showed that Slaughter knew McDaniels was inputting the false overtime claims. McDaniels testified Slaughter told him he knew McDaniels was putting money on his check, but "he wouldn't tell on the scheme."

During the trial, the government learned McDaniels had perjured himself. McDaniels falsely denied entering fraudulent overtime for two additional Ford employees. After discovering his false testimony, the government recalled McDaniels, who admitted his perjury. Defense counsel were then permitted to reopen McDaniels' cross-examination.

Moore also testified at trial. He related how he recruited Slaughter to participate in the overtime scheme. Other witnesses corroborated Slaughter's involvement. Ronald Sheppard, a Ford employee who participated in the overtime scheme, testified that Slaughter asked him about getting paid for overtime he had not worked. John Cartwright, another Ford employee involved in the scheme, testified he asked Moore who else was participating. Moore gave him a number of names, including Slaughter's.

In January, 1994, Ford began investigating the scheme. Investigator Scott Laing interviewed Slaughter on February 9 or 10, 1994, and interviewed Leonard on February 10, 1994. Slaughter told Laing he noticed receiving too much money on one check, but stated he reported this to his union committeeman. Slaughter also told Laing he had worked one weekend for which he received overtime pay, but he denied having received overtime pay for another weekend when Ford's records showed he received extra compensation. Leonard told Laing he had worked the weekends for which he received overtime pay.

Slaughter and Leonard both testified at trial. Slaughter said he did not notice having been paid overtime for any week but one, and stated he reported that overpayment to his union committeeman. Leonard stated he had also noticed receiving overtime pay for one weekend, but did not realize he received overtime pay for any other period.

During jury deliberations, the jury sent the court a question concerning the conspiracy instruction. The jury had been instructed that to find defendants guilty of conspiracy, it needed to find:

FIRST, that ... two or more persons reached an agreement or came to an understanding to commit wire fraud ...;

SECOND, that [defendants] knowingly and intentionally joined in the agreement or understanding to commit wire fraud ...;

THIRD, that at the time [defendants] joined in the agreement or understanding, [they] knew that the purpose of the agreement or understanding was to submit false overtime information with the intent that Ford pay for the false overtime; and

FOURTH, that while the agreement or understanding was in effect, a person or persons may have joined the agreement and knowingly caused the false payroll information to be transmitted from the Ford plant at Claycomo to Ford headquarters in Dearborn, Michigan.

The jury asked whether defendants, to be found guilty of conspiracy, needed to know that the falsified data was transmitted to Michigan by wire. The jury further asked whether defendants also needed to know that the scheme violated federal law.

The court responded to the jury's questions by submitting a new instruction, which stated:

FIRST, that ... two or more persons reached an agreement or came to an understanding to submit false overtime information to Ford with the intent that Ford pay for the false overtime ...;

SECOND, that [defendants] knowingly and intentionally joined in the agreement or understanding to submit false overtime information to Ford with the intent that Ford pay for the false overtime information ...;

THIRD, that at the time [defendants] joined in the agreement or understanding, [they] knew that the purpose of the agreement or understanding was to submit false overtime information with the intent that Ford pay for the false overtime;

FOURTH, in order to carry out the agreement or understanding, it is reasonably foreseeable by someone participating in the agreement that the false payroll information would be transmitted by electronic transmission from the Ford plant in Claycomo to Ford headquarters in Dearborn, Michigan ...; and

FIFTH, that interstate wire communications were used in transmitting the false overtime information to Ford Motor Company to Dearborn, Michigan.

Defense counsel objected to the new instruction and suggested they would need to reargue the case to address the instruction, but made no formal motion for reargument.

On August 22, 1996, the jury returned its verdict, finding Slaughter guilty of three of four wire fraud counts and conspiracy to commit wire fraud. The jury found Leonard guilty of six of seven wire fraud counts and conspiracy to commit wire fraud.

II.

A.

Slaughter appeals his conviction. He argues: (1) the evidence was insufficient to support the jury's verdict; (2) the court erred in submitting the amended conspiracy instruction; and (3) the indictment should have been dismissed for failure to plead materiality.

1.

Evidence is sufficient to sustain a conviction if, when viewed in the light most favorable to the government, it offers substantial support for the verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Marin-Cifuentes, 866 F.2d 988, 992 (8th Cir.1989). It is axiomatic that we do not "pass upon the credibility of witnesses or the weight to be given their testimony." United States v. Witschner, 624 F.2d 840, 843 (8th Cir.1980) (citing Stanley v. Henderson, 597 F.2d 651, 653 (8th Cir.1979)).

Slaughter argues there was insufficient evidence from which to find he knowingly and intentionally participated in a scheme to defraud Ford Motor Company, or that he violated any known legal duty. He points out that, because of his variable work schedule, his paychecks varied from week to week. Slaughter claims the only witnesses whose testimony tied him to the scheme were participants themselves. He challenges the credibility of these witnesses because they bargained with the government in exchange for their testimony. This argument was initially directed to the jury, which rejected it at trial. We decline to revisit the jury's credibility determination.

To prove a conspiracy, the government must show that two or more people agreed to commit an offense, and that at least one conspirator acted to achieve the agreement's illegal purpose. United States v. Hoelscher, 764 F.2d 491, 494 (8th Cir.1985). The government must prove, beyond a reasonable doubt, that the defendant knew the essential object of the conspiracy. Henderson v. United States, 815 F.2d 1189, 1191-92 (8th Cir.1987). To prove wire fraud, the government must show the defendant voluntarily joined a scheme to defraud another out of money, that he did so with intent to defraud, that it was reasonably foreseeable interstate wire communications would be used, and that interstate wire communications were used. United States v. Proffit, 49 F.3d 404, 406 n. 1 (8th Cir.1995); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 991 (8th Cir.1989).

Here, McDaniels testified that Slaughter told him he could be trusted not to "tell on the scheme." Moore testified he recruited Slaughter into the scheme. Other conspirators related conversations with Slaughter showing Slaughter's knowledge of, and participation in, the scheme. Ford's investigator told of Slaughter's claim that he reported an overpayment to his union committeeman, Tom Lawrenson. Lawrenson,...