U.S. v. Wilkinson

• Decision Date: 06 October 1997
• Docket Number: 96-3774,Nos. 96-3448,s. 96-3448
• Citation: 124 F.3d 971
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: 47 Fed. R. Evid. Serv. 1057 UNITED STATES of America, Appellee, v. Wilbur D. WILKINSON, Appellant.

Page 971

124 F.3d 971

47 Fed. R. Evid. Serv. 1057

UNITED STATES of America, Appellee, v. Wilbur D. WILKINSON, Appellant.

Nos. 96-3448, 96-3774.

United States Court of Appeals Eighth Circuit.

Submitted May 20, 1997.

Decided Sept. 5, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 6, 1997.

Reed A. Soderstrom, Minot, ND, argued, for Appellant.

Clare R. Hochhalter, Asst. U.S. Atty., Bismarck, ND, for Appellee.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

BOWMAN, Circuit Judge.

A jury found Wilbur Dale Wilkinson guilty of embezzling, misapplying, and converting tribal funds from an Indian tribal organization in violation of 18 U.S.C. § 1163 (1994); misapplying funds under the care, custody, and control of an Indian tribal government receiving federal grants in excess of $10,000 in violation of 18 U.S.C. § 666(a)(1)(A) (1994); knowingly and willfully making false material statements in violation of 18 U.S.C. § 1001 (1994); and aiding and abetting the above activities in violation of 18 U.S.C. § 2 (1994). Having been sentenced by the District Court, ¹ Wilkinson appeals his convictions. We affirm.

I.

The following facts are based on the evidence, with disputed questions of fact deemed to have been resolved by the jury in a manner that supports its verdict. Wilkinson was Chairman of the Three Affiliated Tribes (the Tribe) at all times relevant to the illegal activities charged in the indictment. The Tribe is located on the Fort Berthold Indian Reservation in North Dakota and qualifies as an Indian tribal organization under 18 U.S.C. § 1163 (1994). In July 1991, Wilkinson completed, signed, and submitted an application to the Bureau of Indian Affairs (BIA) for a Management and Technical Assistance grant for the purposes of hiring a consultant to assist the tribal loan office in resolving defaulted loans. The grant application stated that the Tribe would be responsible for hiring the individual consultant. As a result of this application, the Tribe received approximately $68,000 in 1992 and $105,000 in 1993. The $105,000 disbursement was made under the condition that the Tribe comply with special reporting and supervision requirements imposed by the BIA. These conditions were placed on the receipt of these funds after the Tribe neglected to comply with standard reporting procedures after receiving the $68,000 payment in 1992. A Commitment Order between the Tribe and the BIA outlining the applicable conditions was signed by Wilkinson on behalf of the Tribe.

The $105,000 check was received and endorsed by Wilkinson on behalf of the Tribe and deposited in a supervised account opened in the name "Three Affiliated Tribes and the Bureau of Indian Affairs, Technical Assistance." Signatories on the account included two tribal officials and two BIA officials; withdrawals from the account required the signature of two parties--one from the Tribe and one from the BIA. Wilkinson was not a signatory on this account.

In September 1993, Wilkinson approached his nephew's wife, Kaye Wilkinson, and, promising to train her in the consulting business, offered her the position described in the grant application. In tendering to Kaye the proposed consulting agreement between her and the Tribe, Wilkinson represented, contrary to the terms of the proposed agreement, that she would receive ten percent of the proceeds earned under the agreement and he would receive the remaining ninety percent. Based on these representations, Kaye accepted the position and executed the consulting agreement, which provided that she would perform the consulting duties in return for an hourly wage and reimbursement of expenses.

Wilkinson presented this consulting agreement to tribal officials and the BIA superintendent and, without Kaye's knowledge, represented to them that Kaye needed a $20,000 advance for start-up expenses. Pursuant to Wilkinson's direction, the tribal credit officer, a signatory of the supervised account, prepared and signed a $20,000 check made payable to Kaye and obtained the requisite counter-signature of the BIA superintendent. Wilkinson then personally delivered this check to Kaye's home and, because Kaye was not there, demanded that her husband, Spencer Wilkinson Jr., endorse and deposit the check, keep $2,000 for Kaye, and return $18,000 to Wilkinson in cash. Spencer Jr., surprised at the size of the payment and worried about the potential tax consequences of the transaction, called Kaye who communicated her understanding that she was to receive only $2,000 and who could not explain why a check for $20,000 was issued in her name. Despite his misgivings, Spencer Jr. deposited the check and, rather than returning $18,000 in cash, wrote a personal check to Wilkinson for $18,000. Spencer Jr. testified that Wilkinson chastised him for his failure to obtain cash, but grudgingly accepted the personal check.

Kaye performed no consulting work, received no training from Wilkinson, and submitted no progress reports to the Tribe or the BIA for the next several months. Eventually, however, BIA officials began to wonder whether any work was being performed to justify the $20,000 advance payment made to Kaye. Officials called Kaye on a number of occasions inquiring about her progress on the delinquent loan accounts and Kaye, because she was expecting guidance from her uncle, called Wilkinson who informed her that he was on top of the situation.

In April 1994, Wilkinson delivered to Kaye handwritten reports summarizing the current status of some problem loans and requested that she type the reports. The information contained in these reports was derived from files obtained by Wilkinson from the tribal loan office and did not signify any progress on the resolution of the delinquent loans. Once typed, these reports, which provided little if any new information, were submitted to the BIA and represented by Wilkinson to be Kaye's work product under the consulting agreement.

Also in April 1994, Wilkinson procured seven blank consultant claim statements and had them delivered to Kaye at work. She was directed to sign the blank documents and return them to Wilkinson, which she did. Wilkinson then completed these forms with fictitious numbers of miles driven and hours worked by Kaye in relation to the consulting agreement for each month from October 1993 through April 1994. Wilkinson then presented these claim statements, totaling $7,972.25, for verification to tribal officials who signed them at Wilkinson's direction. A check was issued by the tribal credit officer and, after a cursory inquiry into the legitimacy of the claims, the BIA superintendent eventually counter-signed the expense check. Wilkinson delivered the check, issued in Kaye's name, to her home and, because Kaye was not there, presented the check to Spencer Jr. and insisted that he keep $2,000 for Kaye and return the remainder of the funds to Wilkinson in cash. Spencer Jr., having become even more suspicious of the arrangement, denied that Kaye had performed sufficient consulting work to warrant an additional $2,000 payment and consequently wrote a personal check to Wilkinson for the full $7,972.25. Spencer Jr. deposited the expense check in his and Kaye's joint checking account the next day.

An investigation was launched by BIA and FBI officials, leading to Wilkinson's indictment by a grand jury and his subsequent trial.

II.

Wilkinson first argues that the District Court abused its discretion by withdrawing two exhibits from evidence at the close of his case. Prior to trial, in an effort to expedite the presentation of the documentary evidence, the parties jointly prepared a binder containing the exhibits each side intended to rely on during trial. The prosecution explained, and defense counsel agreed, that although the foundation for these exhibits had been established, their relevancy remained at issue and was to be determined during the trial. The District Court understood that the parties had "reserved the right to object to relevancy on documents, even though foundation may have been established." Trial Tr. Vol. 1 at 12.

Included in the jointly prepared binder was Exhibit 32, a bill of sale signed by Wilkinson and attested to by his brother, Virgil Wilkinson, purporting to establish that Wilkinson sold a 1992 Chevrolet Camaro to his nephew, Spencer Wilkinson, Jr. for $18,000. Also included was Exhibit 47, a cash receipt for $7,972.25 signed by Wilkinson and attested to by Virgil. During cross-examination of Spencer Jr., the defense attempted to show that the $18,000 personal check written to Wilkinson by Spencer Jr. was payment for the purchase of the Camaro and that the $7,972.25 check written to Wilkinson was repayment of a $6,000 loan made by Wilkinson to Spencer Jr. and a $1,792.25 earnest money payment from Spencer Jr. to Wilkinson for farm equipment. Spencer Jr. specifically refuted these explanations for the checks, denying that he had ever borrowed money from Wilkinson and asserting that his father, Spencer Wilkinson Sr., rather than he, had purchased the Camaro from Wilkinson. Defense counsel did not attempt to impeach this testimony through the use of Exhibits 32 or 47 nor did defense counsel call Virgil, the attesting party on both documents, to corroborate the theory that Spencer Jr.'s checks to Wilkinson were for legitimate purposes.

Wilkinson called witnesses and presented a defense. At the close of his proof, the government informed the District Court that it intended to recall Spencer Jr. to rebut Wilkinson's theory that the two checks were written to Wilkinson for legitimate reasons and to discount the authenticity of the bill of sale and the cash receipt included in the evidence binder because neither document had been published or explained to the jury during trial. After a discussion in chambers, the government agreed not to recall Spencer Jr. if Exhibits 32 and 47 were withdrawn. Defen...