U.S. v. Walser

• Citation: 3 F.3d 380
• Decision Date: 30 September 1993
• Docket Number: No. 92-6496,92-6496
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Virginia Nell WALSER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 380

3 F.3d 380

UNITED STATES of America, Plaintiff-Appellee, v. Virginia Nell WALSER, Defendant-Appellant.

No. 92-6496.

United States Court of Appeals, Eleventh Circuit.

Sept. 30, 1993.

John W. Kelly, III, Selma, AL, for defendant-appellant.

Donna Barrow, U.S. Attorneys Office, Mobile, AL, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before FAY and DUBINA, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

DUBINA, Circuit Judge:

This appeal presents a novel question: can one who intentionally causes an innocent party to commit perjury unwittingly be held liable as a principal under 18 U.S.C. Sec. 2? This question arises from Virginia Nell Walser's ("Walser") appeal from her convictions for perjury and aiding and abetting, in violation of 18 U.S.C. Secs. 1623 and 2(b), and making false and fraudulent statements to a government agency or department, in violation of 18 U.S.C. Sec. 1001. For the reasons that follow, we affirm.

I. FACTS

Walser and her husband farmed in Marion, Alabama. In 1989 a federal grand jury indicted them for defrauding the Federal Crop Insurance Corporation ("FCIC") and the Southern Crop Insurance Corporation ("SCIC") by submitting fraudulent crop insurance claims. ¹ The government had alleged that the Walsers failed to report all the soybeans they produced on acreage insured by the SCIC. Specifically, the government claimed that Walser and her husband surreptitiously grew approximately 4,980 bushels of insured soybeans and sold them under another name. Thus, the government contended, the Walsers were overpaid on their subsequent crop loss claims because they grew and sold more soybeans than were reported to the SCIC.

At trial, the Walsers defended by claiming that those 4,980 bushels of soybeans were an uninsured crop derived from another farm. They contended that Walser notified the SCIC of these uninsured beans through a document known as an SCI-013 form, entitled Statement of Facts ("SCI-013"). The SCI-013 is a standard form used for all correspondence with the SCIC.

Walser called Richmond Morrow ("Morrow"), an FCIC claims specialist, as a defense witness. Pursuant to a subpoena, Morrow brought certain documents from his file to the trial. Two were admitted into evidence. The first was a letter dated July 14, 1986, from Walser to Morrow at the FCIC. It stated as follows:

Dear Mr. Morrow,

I am sending you a copy of the SCI-013 Statement of Facts that I have attached to my 1986 acreage report. ² My crop insurance is with reinsurance, but due to the confussion [sic] in 1985 soybean production I wanted a copy of this statement, that was attached to my acreage report, on record with you in your office.

Sincerely,

/s/Virginia N. Walser

The second document was the SCI-013 form referred to in Walser's letter. Entitled "Southern Crop Insurance Agency, Incorporated, Statement of Facts" and also dated July 14, 1986, it stated as follows:

I have broadcast approximately 300 acres of soybeans on the Bob Rees place, ASCS farm number 024. These soybeans will not be covered by crop insurance. So there will not be a confussion [sic] or mix up between the production of soybeans covered by crop insurance and the production on farm 024, I am attaching a copy of this statement to my acreage report.

The SCI-013 form sent to Morrow thus purported to show that the 4,980 bushels of soybeans at issue were not insured beans harvested from Walser's farm, but were uninsured beans planted on a farm owned by a man named Bob Rees.

A jury acquitted Walser and her husband of all charges.

After the trial, special agent William Doles ("Agent Doles") of the Office of the Inspector General ("OIG"), United States Department of Agriculture ("USDA"), examined the SCI-013 form. He noticed that the name of the printer, AAA Printing & Graphics ("AAA"), appeared at the bottom of the form. Agent Doles contacted AAA and learned that AAA did not print and deliver the SCI-013 form to the SCIC until July 22, 1986, one week after the July 14, 1986 date used by Walser on the form sent to Morrow. It thus appeared that Walser prepared and back-dated a false document.

A second federal grand jury returned a three-count indictment against Walser based on this and other evidence of alleged false statements. Count I charged Walser with perjury and aiding and abetting by knowingly and willfully causing Morrow to present false evidence under oath, in violation of 18 U.S.C. Secs. 1623 and 2(b). Counts II and III charged Walser with willfully and knowingly making and causing to be made false, fictitious and fraudulent statements and representations of material fact to the Agriculture Stabilization Conservation Service ("ASCS") an agency of the USDA, in violation of 18 U.S.C. Sec. 1001. ³ These counts stemmed from two 1989 disaster claims in which Walser provided false testimony and documentary evidence purporting to show that she purchased certain fruit and vegetable seeds, when in fact she had not.

Prior to her second trial, conducted in 1992, Walser moved for severance of Count I from Counts II and III. The district court denied the motion. Walser renewed her severance motion at trial, which the district court again denied. Walser also moved for a judgment of acquittal at the close of the government's case and renewed the motion at the close of the defense's case. The district court denied the motions. A jury found Walser guilty on all counts. The district court sentenced her to concurrent terms of twenty-seven months imprisonment, followed by a three-year term of supervised release. This appeal followed.

A. Evidence as to Count I

At the 1992 trial Agent Doles testified that he examined all official FCIC and SCIC files pertaining to Walser before her first trial and found no mention of the uninsured soybeans purportedly planted on Bob Rees' farm. (R.II-57.) He further examined Walser's 1986 soybean acreage reports and, contrary to Walser's statement in her letter to Morrow, found no copy of the SCI-013 attached to them. (R.II-67-68). Those acreage reports were dated July 14, 1986, the same date used by Walser when she created the SCI-013 form and the accompanying letter. Each acreage report was marked on the reverse side: "Received July 28, 1986." (R.II-66-67.) The SCI-013 form retrieved from Morrow's files had no date stamp. Agent Doles testified that he did not examine Morrow's files because Morrow, as an FCIC official, was not authorized to maintain official SCIC files. (R.II-58-59.) In sum, Agent Doles testified that neither Walser's 1986 acreage reports nor any other document in the FCIC or SCIC official files indicated that Walser informed the SCIC of uninsured soybeans.

Morrow testified that Walser sent him the SCI-013 and the accompanying letter, although he could not recall when he received them. (R.II-102.) He noted that it was unusual for him to have SCIC documents because he worked for the federal government and the SCIC was a private organization. (R.II-101, 104-05.) He kept the documents, however, because he routinely filed all correspondence. (R.II-103.) He further testified that after Walser subpoenaed the documents in his file she called Morrow to ensure he possessed the subpoenaed documents. (R.II-100.) Morrow told her that he did. Walser then explained that Morrow need not give the OIG a copy of the SCI-013 because it had one already. (Id.) Morrow testified that he felt tricked by Walser because he now knew the SCI-013 Walser sent him to be false and back-dated. (R.II-106-07.)

Robert Hagan ("Hagan"), the owner of AAA, testified that the SCIC ordered 5,000 SCI-013 Statement of Fact forms on July 10, 1986. (R.III-132-33.) Prior to this order, another printing company printed the forms. (R.III-143-44, 147.) The old forms did not identify the printer. (R.III-147.) AAA delivered the first 500 forms on July 22 and the remainder on July 28. (R.III-133.) No AAA forms were printed or delivered prior to July 14, 1986. (R.III-134.)

B. Evidence as to Counts II and III

In 1989 Walser applied for farm disaster relief pursuant to a program whereby the ASCS compensated farmers who could prove, inter alia, an inability to plant an intended crop because of bad weather or other forces beyond their control. These claims were referred to as "prevented planting" claims. Walser's claims asserted the prevented planting of sweet corn, watermelon and cantaloupe. The ASCS county committee reviewing her claims denied relief for lack of documentary support. The committee, however, gave Walser another chance to present evidence to support her claims. At the committee's next meeting, Walser submitted photocopies of several documents purporting to prove her intent to plant sweet corn, watermelon and cantaloupe. These documents included: (1) a cash receipt from Kwik Way Foods ("Kwik Way") for corn and cantaloupe seed, (2) a second Kwik Way receipt for cantaloupe seed, and (3) an invoice from Gold Kist Inc. ("Gold Kist") for the purchase of watermelon seed, sweet corn seed and fertilizer. Walser told the committee she purchased the seeds for planting in 1989, but poor weather prevented her from planting them. (R.III-175.)

After the meeting the committee deliberated. It found the Gold Kist receipt suspicious because it was handwritten. Moreover, William Neighbors ("Neighbors"), an ASCS employee in Marion, Alabama, informed the committee of a recent conversation he had with Walser during which she mentioned that she had not purchased seeds for sweet corn, watermelons or cantaloupe. (R.III-170, 198.) The committee withheld their decision until the Gold Kist invoice could be verified. Subsequently, Gold Kist's manager informed the committee that the questioned invoice was "an invalid ticket." The committee then recommended to the state committee that all payments to Walser be denied for 1989.

At trial, Mary Faith Wheeler ("Wheeler"), Gold Kist's operations...