U.S. v. Tipton, 90-3649

• Citation: 964 F.2d 650
• Decision Date: 20 May 1992
• Docket Number: No. 90-3649,90-3649
• Parties: 35 Fed. R. Evid. Serv. 893 UNITED STATES of America, Plaintiff-Appellee, v. Darryl TIPTON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 650

964 F.2d 650

35 Fed. R. Evid. Serv. 893

UNITED STATES of America, Plaintiff-Appellee, v. Darryl TIPTON, Defendant-Appellant.

No. 90-3649.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 12, 1991.

Decided May 20, 1992.

Kaarina Salovaara, argued, Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Martin S. Agran, argued, Agran & Agran, Chicago, Ill., for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The defendant-appellant, Darryl Tipton, appeals his conviction for embezzling money and evading federal income tax, alleging that the district court abused its discretion in admitting samples of his handwriting in evidence, the government's closing argument was improper, and that the evidence was insufficient to support a finding of guilt. We affirm.

I. FACTS

On January 4, 1990, a federal grand jury returned a six-count indictment against the defendants Tipton (four counts) and Sam Clark (two counts) for their role in a fraudulent payout scheme involving money from the Department of Housing and Urban Development. Clark pled guilty prior to trial and testified on behalf of the government at Tipton's trial. Tipton was charged with two counts of embezzling money of the United States in violation of 18 U.S.C. § 641 ¹ as well as with two counts of evading federal income tax in 1984 and 1985 in violation of 26 U.S.C. § 7201, ² and proceeded to trial on August 22, 1990.

The Department of Housing and Urban Development ("HUD") provided the City of Aurora, Illinois with money (as part of an annual entitlement grant) to be used by qualified low income homeowners for repair and/or remodeling work of their homes. Tipton worked for the City of Aurora as a rehabilitation specialist in the division of Neighborhood Services from 1983 to 1985. His responsibilities included assisting qualified homeowners through the housing repair application process as well as training and supervising the work of David Kramer, who also worked on housing rehab projects. Following confirmation of the applicant's income, the rehabilitation specialist (Tipton or Kramer) determined the applicant's eligibility, inspected the applicant's home and prepared a draft-specifications sheet listing the details of the work project. Contractors submitted sealed bids for the projects, and once the bids were opened, the rehabilitation specialist and the homeowner determined whether to proceed. If the homeowner decided to proceed, the rehabilitation specialist assisted in preparing the applicant's written loan proposal, which was in turn forwarded to Tipton's immediate supervisor Patricia Casler, and ultimately to the City Council of Aurora, Illinois. If the City Council approved the loan, it would adopt a resolution approving a transfer of funds. After the City Council's approval of the transfer of funds from the City's bank account to the homeowner's individual account, the rehab specialist prepared, signed, and submitted a cover letter to the bank enclosing the City's resolution and a "transfer of funds" form requesting that the bank set up an individual account for the homeowner. The "transfer of funds" form directed to the bank was signed by the rehab specialist, the comptroller and the mayor. The approval process did not require independent investigation of the loan proposals submitted by Tipton.

After the project was completed, the contractor was required to forward a signed completion notice to either Tipton or Kramer certifying completion of the contract. The rehabilitation specialist was supposed to inspect the home and verify the completion of the project. Following the verification, the specialist completed a payout authorization form which required three signatures, those of the homeowner, the rehabilitation specialist and Pat Casler (Tipton's immediate supervisor). Casler testified that it was her usual practice not to independently inspect Tipton's work before approving the payout form. Once the payout form was signed by these three, the bank reviewed the form to determine whether it was properly executed. The bank then prepared the check in the name of the homeowner and entered the debit on a ledger card, recording the date of the check, the amount and the name of the contractor paid.

At trial, the government relied extensively on the testimony of Sam Clark, an old friend and distant relative of Tipton. In the early 1980's, Clark was working on a number of rehabilitation projects for the City of Aurora. ³ Clark testified that in the summer of 1983, Tipton suggested a fraudulent payout scheme to him in which several unidentified contractors who lacked the necessary insurance coverage would operate under Clark's name and insurance, and upon receipt of payout authorizations, the City's bank would issue payout checks in Clark's name. Tipton further proposed that Clark cash the checks and give the money to Tipton, who would in turn take care of the uninsured contractors. Clark agreed to the plan, and several months later Tipton called Clark at a job site and asked him to pick up a check at Aurora Federal Savings & Loan. Clark followed Tipton's instructions, picked up and cashed the check, placed the money in an envelope, and delivered it to Tipton. At this time Tipton gave Clark some of the money. Clark testified that this procedure continued from the summer of 1983 to January of 1985. Clark stated he picked up approximately twenty or thirty checks from the Aurora Savings & Loan for work that he never performed, and he received approximately $200 to $300 from Tipton for each check he cashed.

Around May of 1984, assistant rehabilitation specialist David Kramer sent a letter to Georgana Brison, a rehabilitation applicant who had been on his case list since 1983, to determine why she had not completed her rehab application. After a period of time and receiving no answer from Brison, Kramer stated that he reviewed her file and discovered it contained a City Council resolution transferring funds to an account in Brison's name. Kramer testified that he was surprised at this unusual procedure, for he had not done any work to initiate a resolution transferring funds. Kramer stated that he inquired of Tipton concerning the transfer of funds resolution in Brison's file, and Tipton replied that the rehabilitation process had been restructured so that the funds were now approved as soon as the rehabilitation work was identified. Kramer related that he advised Tipton that Brison was not interested in participating in the program and asked him to have the resolution authorizing the transfer of funds to Brison's account rescinded, and Tipton replied that he would take of it. Several months later, Kramer again asked Tipton to have the City cancel Brison's transfer of funds resolution, and Tipton replied once again that he would take care of it. Unbeknownst to Kramer, the bank had transferred the HUD funds from the City's account into Brison's loan account prior to his conversations with Tipton. On April 27, 1984 and May 1, 1984, the bank issued payout checks to Sam Clark for $8,000 and $4,000 respectively, for Brison's alleged home rehabilitation. Clark testified that he gave all the cash from these checks to Tipton.

Patricia Casler testified that her name had been forged on certain payout forms and that she had never authorized anyone to enter her signature on any form indicating approval. In addition, approximately twenty rehabilitation applicants testified and disavowed the authenticity of their respective signatures on payout forms and stated further that the work described as completed in certain invoices or payout forms had never been performed. Kramer testified that certain signatures and handwriting on rehabilitation applicants' bogus "transfer of funds" forms, payout forms and invoices appeared to be Tipton's. Robin Hunton, a forensic document examiner of more than twelve years experience in the field, who has examined thousands of documents, testified concerning her examination and comparison of various rehabilitation documents with handwriting exemplars supplied by Tipton and likewise stated that Tipton's handwriting appeared on a number of these forged documents.

Joe Mazzura, an agent with the Internal Revenue Service, also testified for the prosecution regarding Tipton's 1984 and 1985 federal tax returns. Mazzura stated that after comparing Tipton's reported income for 1984 and 1985 with the sum of money involved in the embezzled checks Clark cashed and gave to Tipton, he was of the opinion that Tipton failed to report income of $146,715 in 1984 and $14,903.50 in 1985.

Following trial, the jury found the defendant guilty on two counts of embezzling money of the United States and two counts of evading federal income tax in 1984 and 1985. The district court sentenced Tipton to four years imprisonment on the two counts of embezzlement and one count of tax evasion to be served concurrently with each other, but consecutive to a state sentence Tipton was then serving, followed by five years of probation on the remaining tax evasion count to be served consecutively to the federal term of imprisonment. The district court also ordered Tipton to participate in drug screening, to pay a special assessment of $200, and to pay restitution to HUD in the amount of $18,500.

II. ISSUES FOR REVIEW

The defendant raises the following issues on appeal: (1) whether the district court abused its discretion in admitting in evidence the identification of the defendant's handwriting, since Robin Hunton was, in his opinion, unqualified to testify as a handwriting expert, and the probative value of David Kramer's lay opinion of Tipton's handwriting was purportedly outweighed by its prejudicial effect; (2) whether the prosecution's closing argument constituted misconduct and violated...