U.S. v. Stoner, 94-6377

• Decision Date: 10 October 1996
• Docket Number: No. 94-6377,94-6377
• Citation: 98 F.3d 527
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cynthia M. STONER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 527

98 F.3d 527

UNITED STATES of America, Plaintiff-Appellee, v. Cynthia M. STONER, Defendant-Appellant.

No. 94-6377.

United States Court of Appeals,

Tenth Circuit.

Oct. 10, 1996.

Ross Nick Lillard, III, Assistant U.S. Attorney, Oklahoma City, OK (Rozia McKinney-Foster, Assistant U.S. Attorney, Oklahoma City, OK, with him on the brief), for Plaintiff-Appellee.

Kenneth E. Holmes, Holmes and Jackson, Ponca City, OK, for Defendant-Appellant.

Before PORFILIO, HENRY and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

The defendant, Cynthia M. Stoner, appeals her conviction and sentence following a jury verdict for conspiracy under 18 U.S.C. § 371 relating to the embezzlement of tribal funds. Ms. Stoner contends that the district court should have granted her motion for judgment of acquittal because the government failed to allege and prove that an overt act occurred within the applicable statute of limitations. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court's judgment.

I. BACKGROUND

Ms. Stoner is a member of the Ponca Indian Tribe. In 1986, she was elected to the Ponca Tribal Business Committee ("the Committee"), the body responsible for the governance of the Ponca Tribe. Ms. Stoner later became the Chairman of the Committee. It was in that capacity that she had general supervision and control over the Tribe.

Subsequently, Ms. Stoner's alleged co-conspirator, Ledavie Rhodd, was elected to the position of Secretary/Treasurer for the Committee. As such, Ms. Rhodd joined Ms. Stoner as a signatory to the tribal bank accounts. At issue in this case are the accounts containing the funds for the tribal loan program and the tribal burial program. The government alleged at trial that between March of 1988 and August of 1989, twenty-five checks totaling approximately $25,000.00 were written out of the loan and burial accounts for improper purposes. These checks were payable to the order of cash or to Ledavie Rhodd. Of the twenty-five checks, approximately eight bore the signature of Ms. Stoner.

On March 16, 1994, a grand jury returned a four-count indictment charging Ms. Stoner with conspiracy to embezzle and convert monies belonging to the Ponca Indian Tribe in violation of 18 U.S.C. § 371 and with three counts of embezzlement in violation of 18 U.S.C. § 1163. With regard to the conspiracy count, the indictment stated that Ms. Stoner conspired to embezzle tribal funds "in or about March 1988, and continuing thereafter until in or about August 1989, the exact dates being unknown to the Grand Jury." See Aplt's App. at 2. It further charged that Ms. Stoner "committed or caused to be committed various overt acts ... including, but not limited to" five acts specifically listed in the conspiracy count, all of which occurred before March 16, 1989. See id. at 3. With regard to the embezzlement counts of the indictment, the government alleged that Ms. Stoner had converted tribal funds on three occasions after March 16, 1989.

On the first day of her trial, Ms. Stoner filed a motion to dismiss the conspiracy count against her, arguing that the indictment failed to allege the commission of an overt act during the five-year limitations period preceding the filing of the indictment. The district court denied this motion, and the case proceeded to trial. Ms. Stoner was subsequently convicted on the conspiracy count, but was acquitted on the three embezzlement counts. After the jury returned its verdict, Ms. Stoner moved the district court for a judgment of acquittal under Fed.R.Crim.P. 29, based on the same argument as that raised in her motion to dismiss. The court denied this motion, sentenced Ms. Stoner to twelve months' incarceration and to three years' supervised release, and ordered her to pay restitution to the Ponca Tribe in the amount of $19,200.00.

II. DISCUSSION

Ms. Stoner argues on appeal that the district court erred in denying her motion for a judgment of acquittal for two reasons: (1) because the evidence presented at trial was insufficient to establish that an overt act in furtherance of the conspiracy was committed within the five year statute of limitations; and (2) because the indictment failed to allege an overt act occurring within the limitations period.

The government responds that the evidence presented at trial was sufficient to establish the commission of an overt act within the statute of limitations period. With regard to Ms. Stoner's challenge to the indictment, the government maintains that an indictment need not allege the same overt act that is proven at trial. Instead, the government argues, a conspiracy conviction should be upheld if the indictment alleges an overt act as part of the conspiracy offense and the evidence presented at trial establishes that an overt act occurred within the limitations period, even if the overt act proven at trial is different than the overt act alleged in the indictment. Alternatively, the government argues, even if it were required to allege a timely overt act in the indictment, it satisfied this requirement by listing timely overt acts in the embezzlement counts of the indictment, which it argues are implicitly incorporated into the conspiracy count.

A. Sufficiency of the Evidence

As to her challenge to the evidence, we first note that Ms.Stoner did not include the entire trial transcript in the record on appeal. Accordingly, we are not required to consider this contention. "The appellant is responsible for insuring that all materials on which he seeks to rely are part of the record on appeal. When the appellant asserts that his conviction should be reversed because of a particular error, and the record does not permit the [sic] us to evaluate the claim, we will generally refuse to consider it." See United States v. Vasquez, 985 F.2d 491, 495 (10th Cir.1993); see also 10th Cir. R. 10.3 ("When the party asserting an issue fails to provide a record sufficient for consideration of that issue, the court may decline to consider it."). Had the government not supplemented the record with portions of the trial transcript omitted by Ms. Stoner, it would be difficult, if not impossible, to thoroughly review her challenge to the sufficiency of the evidence underlying her conviction. However, aided by the government's supplemental appendix, we exercise our discretion to consider this claim.

In reviewing Ms. Stoner's sufficiency-of-the-evidence claim, we view the evidence in the light most favorable to the government. See United States v. Robertson, 45 F.3d 1423, 1441 (10th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 2258, 132 L.Ed.2d 265 (1995), and cert. denied, --- U.S. ----, 115 S.Ct. 2259, 132 L.Ed.2d 265 (1995), and cert. denied, --- U.S. ----, 116 S.Ct. 133, 133 L.Ed.2d 81 (1995); United States v. Horn, 946 F.2d 738, 741 (10th Cir.1991); United States v. Daily, 921 F.2d 994, 1011 (10th Cir.1990), cert. denied, 502 U.S. 952, 112 S.Ct. 405, 116 L.Ed.2d 354 (1991). If any reasonable jury could have found that the essential elements of the crime were proved beyond a reasonable doubt, the evidence is deemed sufficient to support the conviction. See United States v. Hauck, 980 F.2d 611, 613 (10th Cir.1992); Horn, 946 F.2d at 741; Daily, 921 F.2d at 1011-12.

Under 18 U.S.C. § 371, the government must prove the following elements: "(1) an agreement; (2) to break the law; (3) an overt act; (4) the purpose of which is to further the object of the conspiracy; and (5) that the defendant entered the conspiracy willfully." United States v. Davis, 965 F.2d 804, 811-12 (10th Cir.1992), cert. denied, 507 U.S. 910, 113 S.Ct. 1255, 122 L.Ed.2d 653 (1993). ¹ Conspiracy prosecutions under § 371 are governed by the five-year statute of limitations provided in 18 U.S.C. § 3282. See Hauck, 980 F.2d at 613 ("To satisfy the statute of limitations, the prosecution must show that the conspiracy continued to exist five years prior to the indictment...."). Therefore, in this case, because the indictment charging Ms. Stoner was returned on March 16, 1994, the government had to prove that the conduct constituting the conspiracy occurred some time after March 16, 1989.

Upon review of the record, we conclude that reasonable factfinders could have found Ms. Stoner guilty beyond a reasonable doubt on the conspiracy charge against her. Among the evidence at trial was the testimony of Ms. Ledavie Rhodd. She testified, and the jury apparently believed, that Ms. Stoner was in charge of the embezzlement scheme and that Ms. Stoner decided when and how Ms. Rhodd would cash the checks, as well as how the proceeds would be divided. See Aplt's App. at 38, 56. In addition, Ms. Stoner admitted that she signed some of the checks that were cashed, see id. at 86-87, and she failed to provide the jury with a credible excuse as to how she could have signed the checks, particularly those on which her signature appeared below Ms. Rhodd's, without being aware of Ms. Rhodd's improper activities. See id. at 87. Finally, the government introduced evidence linking cash deposits into Ms. Stoner's checking account to checks cashed by Ms. Rhodd drawn from the loan and burial accounts. See Aple's Supp.App. at 49-54.

Specifically regarding the element of a timely overt act, the record on appeal reflects evidence of overt acts that occurred after March 16, 1989, the date five years preceding the return of Ms. Stoner's indictment. Ms. Rhodd testified that she wrote and cashed improper checks during the period from March 1988 through August 1989. See Aplt's App. at 36. Also, Agent Barnes testified that a check in the amount of $1,450 was cashed on June 6, 1989 and that Ms. Stoner made a cash deposit into her checking account on June 7, 1989 in the amount of $400. See id. at 74. Taken together, the evidence at trial, viewed in the light most favorable to the government, see Robertson, 45 F.3d at 1441, was sufficient to establish the elements of a conspiracy. ²

B. Sufficiency of...