U.S. v. Valentine
| Decision Date | 27 October 1995 |
| Docket Number | No. 94-5022,94-5022 |
| Citation | 63 F.3d 459 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patricia VALENTINE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sarah R. Shults, Asst. U.S. Atty. (argued and briefed), Greeneville, TN, for plaintiff-appellee.
W. Thomas Dillard (argued and briefed), Wade Davies (briefed), Ritchie, Fels & Dillard, Knoxville, TN, for defendant-appellant.
Before: NELSON, SUHRHEINRICH, and SILER, Circuit Judges.
SILER, J. (p. 467), delivered a separate dissenting opinion.
Defendant Valentine appeals her conviction on two counts of violating 18 U.S.C. Sec. 666, which prohibits an agent of an entity receiving $10,000 or more in federal funds in one year from misappropriating property valued at $5,000 or more. For the reasons that follow, we REVERSE her conviction.
Valentine worked as City Recorder for Sevierville, Tennessee, from May 1975, until she resigned her position in November 1991. While Valentine worked as City Recorder, she also worked as Secretary/Treasurer of the Sevierville Water Department from 1980 through 1991. Valentine's conduct in each position formed the basis for a count of the Indictment.
Count One of the Indictment against Valentine covered her tenure as City Recorder, and the time period from April 1989 to May 22, 1991. Testimony at trial showed that as City Recorder, Valentine supervised the fiscal affairs of the city, collected taxes and revenues, dispersed operational funds and issued paychecks. In 1990, the Chief of Police contacted the FBI after Valentine was unable to explain what happened to the funds forwarded to the city by the police for parking tickets and copying fees. Not all of this money, which was given either to Valentine or one of the cashiers at the city recorder's office, had been deposited. At Valentine's direction, a portion of the money was never entered into the books or recorded in the daily cash reports. Instead, the money was placed in the "kitty," a drawer in Valentine's office. Cashier Kim Graves testified that copy money went to the kitty because parking money was easily traced by the presence of a ticket. Copy money not diverted into the kitty was receipted on the "supplies account" and recorded in the daily cash report as revenue to the supplies account. During the relevant time, the police collected $11,769.50 for copying fees, but only $3,406.50 was receipted in the books and deposited. Thus, $8,363 was diverted to the kitty.
Count Two of the Indictment covers Valentine's tenure as Secretary/Treasurer of the Water Department from July 1988 through May 1991. Under Count Two, the government alleged that Valentine required water department employees to run her personal errands during working hours. Not only did employees perform these chores during work hours, they used city-owned vehicles and equipment to do them. The trial testimony revealed that the chores included grocery shopping and delivery, paying Valentine's personal bills, moving firewood and providing transportation to Valentine's maid. One employee, Joanne Bettes, estimated that the amount of time she spent completing these chores resulted in a loss calculated at $7,000 in wages paid. Other witnesses testified that they performed services for Valentine including landscaping, trimming trees, and delivery of furniture.
The jury found Valentine guilty on both counts. She now appeals her conviction.
Valentine challenges the district court's interpretation of Sec. 666, a matter we review de novo. United States v. Hans, 921 F.2d 81, 82 (6th Cir.1990). In assessing the reach of a federal criminal statute, we are obliged to heed the language of the statute, its legislative history and the purpose underlying its enactment. Dowling v. United States, 473 U.S. 207, 213, 105 S.Ct. 3127, 3131, 87 L.Ed.2d 152 (1985).
The language of the charging statute reads in pertinent part as follows:
(a) Whoever, if the circumstance described in subsection (b) of this section exists--
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof--
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that--
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government, or agency; ... shall be fined under this title, imprisoned not more that 10 years, or both.
(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
(c) This section does not apply to bona fide salary, wages, fees, or other compensation paid, or expenses paid or reimbursed, in the usual course of business.
18 U.S.C. Sec. 666.
To bring Valentine within the boundaries of Sec. 666, the government must establish the following elements. First, the government must show that Valentine was an agent of local government at the time of the offense. 18 U.S.C. Sec. 666(a)(1). Here, it is undisputed that Valentine was an agent of city government and the water department. Second, the government must show that Valentine embezzled, stole, fraudulently obtained or willingly converted property worth at least $5,000 which was under the control, care or supervision of the city and water department. 18 U.S.C. Sec. 666(a)(1)(A)(i), (ii). Third, the government must show that the above elements occurred during a time in which the city and the water department received in excess of $10,000 in any one year from a qualifying federal assistance program. 18 U.S.C. Sec. 666(b).
Defendant contends that the statute does not criminalize her conduct for three reasons: (1) the $5,000 misappropriation threshold was not met; (2) the funds misappropriated were not connected to a federal program; and (3) the statute exempts theft of employee services. We discuss each in turn.
The first issue involving interpretation of the statute arises out of the $5,000 minimum threshold requirement and concerns the proper time frame that the government may use to reach the minimum amount. In short, the question presented is whether Sec. 666(a)(1)(A)(i) of the statute criminalizes multiple conversions of less than $5,000, if more than one year is needed to reach the $5,000 statutory minimum.
Defendant contends that to establish a violation under the statute, the government must prove at a minimum that she misappropriated property valued at $5,000 within a one-year period. The government counters that the aggregation of thefts occurring beyond a one-year time frame is permissible. Both counts in the Indictment cover a three-year period, and the evidence at trial covered events occurring during those years specified in the Indictment. The government made no attempt to separate incidents of theft by the year in which they occurred.
The rules of construction direct our attention first to the language of the statute to resolve this dispute. The government correctly states that no explicit time restraint is placed on the length of time needed to reach the $5,000 minimum in Sec. 666(a)(1)(A)(i). Our inquiry does not end with this observation; a proper reading requires attention to the statute in its entirety.
We note that the statute is violated by a $5,000 theft only "if the circumstance described in subsection (b) ... exists." 18 U.S.C. Sec. 666(a) (emphasis added). Subsection (a) specifically incorporates the elements of subsection (b). Therefore, if subsection (b) contains a time restraint, it is applicable to subsection (a).
Subsection (b) defines the federal funding requirement, limiting subsection (a) to an agency that receives benefits greater than $10,000 in any one year. The term "any one year" is defined in subsection (d)(5), as follows:
a continuous period that commences no earlier than twelve months before the commission of the offense or that ends no later than twelve months after the commission of the offense. Such period may include time both before and after the commission of the offense.
The interrelationship between subsections (a) and (b) of the statute mandate that a one-year limitation likewise attaches to the $5,000 threshold requirement.
Our reading of the statute is bolstered by another rule of construction: that "Congress' use of a verb tense is significant in construing statutes." United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 1354, 117 L.Ed.2d 593 (1992). Because Congress used verbs in the present tense in this statute, it indicated that the "commission" of the theft must be completed within a one-year period of time. Specifically, the text of subsection (b) requires that the agency receive $10,000 in any one-year period. Thus a financial limitation and a temporal limitation are incorporated in this provision. The language relevant to the one-year period indicates the availability of three measurements to meet the time restriction; the one-year time measurement may start twelve months before the theft, it may end twelve months after the theft or it may include time both before and after the commission of the offense. Because the one-year period includes time both before and after the theft, a natural reading of the statute incorporates a finding that the offense must fall within the twelve-month window. In sum, proof must be of any one-year period that includes the date(s) of the crime.
We find no expressed legislative intent contrary to our reading. Congress enact...
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