U.S. v. Turner

• Decision Date: 30 December 2008
• Docket Number: No. 07-1062.,07-1062.
• Citation: 551 F.3d 657
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cecil TURNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

551 F.3d 657

UNITED STATES of America, Plaintiff-Appellee, v. Cecil TURNER, Defendant-Appellant.

No. 07-1062.

United States Court of Appeals, Seventh Circuit.

Argued December 3, 2007.

Decided December 30, 2008.

Gregory K. Harris, Office of The United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Michael J. Gonring, Quarles & Brady, Milwaukee, WI, for Defendant-Appellant.

Before BAUER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

A jury convicted Cecil Turner of two counts of making false statements to the FBI and four counts of wire fraud for his part in a fraudulent scheme by which three janitors employed by the State of Illinois worked only a small fraction of their required 40 hours per week but falsified their attendance logs and collected their full salaries. On appeal, Turner contends that his statements to the FBI were not material because the FBI already knew about his involvement in the scheme and therefore could not have been misled by what he said. We disagree. A false statement need not actually influence the agents to whom it is made in order to satisfy the materiality requirement for this offense; it need only have the possibility of influencing a reasonable agent under normal circumstances. Turner's statements to the FBI—denying that he provided supervisory cover for the janitors' fraudulent scheme—satisfied this standard.

Turner also maintains the evidence was insufficient to convict him of wire fraud. His argument is twofold: He challenges the sufficiency of the evidence on the government's "honest services" fraud theory and the sufficiency of the use of the wires. As to the former, the case was charged and submitted to the jury as a traditional money or property fraud and as an honest services fraud. The evidence established that Turner aided and abetted a straightforward money or property fraud—Turner assisted the janitors' fraudulent scheme to collect thousands of dollars in wages for hours they did not work—so the verdict may be sustained regardless of any factual insufficiency on the alternative honest services fraud theory. As for the use of the wires, two of the janitors were paid through direct deposit; under the circumstances of this case, this use of the wires was sufficient to satisfy the wire-fraud statute. The janitors' receipt of falsely inflated wages was the final step—indeed, it was the whole point—of the fraudulent scheme.

I. Background

Turner was the Director of the Division of Physical Services for the Illinois Secretary of State's office from 1999 to 2005. He supervised over 300 employees who were responsible for cleaning and maintaining various state-owned buildings in Springfield, Illinois. Three of those employees were night janitors Dana Dinora, Steven Boyce, and David Medvesek. Turner promoted Dinora to lead night janitor shortly after being appointed Director in 1999, and the three janitors comprised a cleaning crew responsible for the Herndon Building, the Court of Claims, and the Lincoln Towers. Dinora also worked as an Assistant Superintendent for the City of Springfield Public Works Department where he handled street cleaning and garbage pick-up throughout the city.

Dinora and his crew were required to report to work by 3 p.m. Monday through Friday and stay until 11 p.m. As with any other employee, each was required to submit a leave slip and obtain approval if he was going to be absent during normal work hours. The janitors were supervised by building managers, who in turn reported to the division chief, who was overseen by the deputy director, who reported directly to Turner.

Led by Dinora, the three night janitors devised a scheme to take massive amounts of unauthorized leave without being detected by their supervisors. At its peak the scheme allowed Dinora to collect a full salary while working less than 30 minutes each day and the others to receive full pay while cutting their work hours in half. Sometimes one janitor would remain at work while the other two were absent; the "on duty" janitor would tip off the absent ones if questioned by a supervisor about the whereabouts of the other members of the crew. The absent janitors would then come in to work, call the supervisor who made the inquiry, or submit an appropriate leave slip. Another feature of the scheme involved leaving a note in one building falsely representing that the absent janitor was working in another building. The three janitors also kept two sets of attendance logs. The first accurately recorded occasions when one or more of the janitors did not work a full shift and submitted a proper leave request. If no one checked their work that night, however, the "on-duty" janitor would replace the first, accurate attendance log with a second log falsely recording that all three had been working the entire night.

The janitors' scheme could not have succeeded without Turner's help. Prompted by requests from Dinora, Turner repeatedly intervened when the janitors' immediate supervisors began to watch the three more closely. In 1999 Building Manager Randy Lewis forced Dinora to prove that he was actually sick before taking more sick days. Dinora complained to Turner, who reprimanded Lewis and told him to leave Dinora and his crew alone. Two other building managers received similar warnings after attempting to more closely supervise Dinora. Building Manager James Carter was admonished by Turner to "stay the hell away from" Dinora and his crew after Dinora told Turner that Carter was watching the Herndon Building. Turner also instructed Building Manager Harry Fanning to leave Dinora's men alone and to stop checking their work.

Turner's efforts to deflect attention from the night janitors' fraud were successful from 1999 until 2003, when Division Chief Dodie Stannard became involved. After receiving numerous complaints about the unsanitary conditions in the buildings that Dinora's crew was assigned to clean, Stannard began to investigate. On a number of occasions, she visited the Herndon Building at night and found no one there cleaning. Just to be sure the men weren't working in another of their assigned buildings, she checked the Court of Claims, but it, too, was deserted. She made a written report to Turner about her investigation and recommended involving the Inspector General. Turner responded harshly, claiming that Stannard had "stabbed him in the back" by putting her concerns in writing instead of passing along the information verbally. He also told her that reporting Dinora's crew to the Inspector General's office was unnecessary as the matter rested with him alone.

The fraud thus went undetected through mid-2005, when Stannard defied Turner and contacted the Inspector General's office. In August 2005 Turner's wife, Doris—a member of the County Board—called Dinora to warn him that Stannard had tipped off the Inspector General. Dinora confirmed this with Turner, who told Dinora to be careful and make sure his crew showed up for work. A week later, inspectors advised Turner of their investigation and told him not to disclose it to anyone. Nevertheless, Turner kept Dinora informed about the Inspector General's inquiry and advised him to watch his crew closely. In September the FBI opened an investigation and Dinora began cooperating. Thereafter Dinora recorded many of his conversations with Turner.

As a result of Dinora's cooperation, Turner became the focus of the investigation. In mid-October FBI agents questioned Turner about the janitors' scheme. He told them that he never "looked the other way" for Dinora or his crew and that he never reprimanded any of their supervisors for checking on their activities at the Herndon Building. He also claimed that he only learned about the scheme in September 2005 and that he complied with the Inspector General's request to tell no one about the investigation. The FBI interviewed him again in November, and Turner stuck to his story. When asked if he told his wife to call Dinora, Turner denied it. The agents then played a tape of Doris Turner warning Dinora about the Inspector General's investigation and explaining that she was calling on behalf of her husband. Turner continued to maintain that he did not ask his wife to make the call.

Turner was charged with four counts of wire fraud in violation of 18 U.S.C. §§ 1343 and 1346 and two counts of making false statements in violation of 18 U.S.C. § 1001.¹ The government's wire-fraud theory was that Turner either aided and abetted the night janitors' fraudulent scheme or deprived the State of Illinois of his honest services.

At the close of the government's case, Turner moved for judgment of acquittal on the wire-fraud charges under Rule 29(a) of the Federal Rules of Criminal Procedure, arguing insufficiency of the evidence. The district court denied this motion. The court also denied Turner's later motion under Rule 29(c) for judgment of acquittal after the jury returned a verdict of guilty on all charges. Turner appeals, reiterating his challenges to the sufficiency of the evidence in a number of respects.

II. Analysis

A. False Statements to the FBI

Turner contends the evidence was insufficient to convict him of making false statements in violation of 18 U.S.C. § 1001.² On these counts the government was required to prove that Turner's statements were false; material; knowingly and willfully made; and concerned a matter within the jurisdiction of a federal department or agency—here, the FBI. United States v. Ringer, 300 F.3d 788, 791 (7th Cir.2002). Turner claims there was not enough evidence to prove that the FBI investigation was within its jurisdiction or that his false statements were material.

On a sufficiency-of-the-evidence challenge, we view the evidence in the light most favorable to the verdict and will overturn the conviction only if there is no evidence upon which a rational juror could have found the defendant guilty. United States v. James, 464 F.3d 699,...