U.S. v. Winstead, 94-3025

• Decision Date: 02 February 1996
• Docket Number: No. 94-3025,94-3025
• Citation: 316 U.S. App. D.C. 52,74 F.3d 1313
• Parties: UNITED STATES of America, Appellee, v. James A. WINSTEAD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1313

74 F.3d 1313

UNITED STATES of America, Appellee, v. James A. WINSTEAD, Appellant.

No. 94-3025.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 8, 1995.

Decided Feb. 2, 1996.

Lisa B. Wright, Assistant Federal Public Defender, argued the cause for appellant, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the briefs.

Matthew G. Olsen, Assistant United States Attorney, argued the cause for appellee, with whom Eric H. Holder, Jr., United States Attorney, and John R. Fisher, Thomas C. Black and Heather L. Cartwright, Assistant United States Attorneys, were on the brief. Elizabeth Trosman, Assistant United States Attorney, Washington, DC, entered an appearance.

Before: EDWARDS, Chief Judge, BUCKLEY and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Chief Judge EDWARDS.

HARRY T. EDWARDS, Chief Judge:

On November 22, 1993, a jury found appellant James Winstead guilty of ten counts of mail fraud, in violation of 18 U.S.C. Sec. 1341 (1988), and six counts of making false statements to a federal agency, in violation of 18 U.S.C. Sec. 1001 (1988). Winstead contends that these convictions must be reversed because the District Court improperly questioned two witnesses. Winstead also asserts that he was deprived of a jury verdict on the false statement charges because the jury was improperly instructed as to the requisite elements of that crime. Finally, Winstead claims that, because three bench conferences held during his trial could not be transcribed due to a mechanical failure and could not be reconstructed by the parties, his right to appeal his convictions was unfairly jeopardized, and, therefore, a retrial on all counts is required.

We reject Winstead's contentions. First, we find that the District Court's questioning of witnesses did not jeopardize Winstead's right to a fair trial. Second, on the record at hand, it is clear that the jury was instructed to consider the materiality of appellant's statements before convicting him on the mail fraud charge, so there can be little doubt that the jury also would have found those statements material with respect to the false statement charge. Only one fraudulent scheme was at issue with respect to both charges, so the court's instruction to the jury that materiality was an element of the mail fraud charge ensured that that element would have been found with respect to the false statement charge. The instructions were not a model of clarity, but they are not a cause for reversal. Third, Winstead's additional complaint, raised for the first time on appeal, that the jury was not informed that the jurisdiction of a federal agency is necessary under 18 U.S.C. Sec. 1001, did not result in prejudicial error; therefore, under the plain-error standard, there is no warrant for the reversal of his false statement convictions. Finally, because there is no indication that the bench conference transcripts have been illegally withheld from Winstead, or that the transcripts would be likely to contain information relevant to an appeal, we decline to reverse his convictions on that ground.

I. BACKGROUND

In late 1982, the Department of Labor ("DOL") granted Winstead Federal Employees' Compensation Act ("FECA") benefits based upon an injury to his back that occurred during his employment as a custodian at Walter Reed Medical Center. As part of the administration of these benefits, DOL's Office of Worker's Compensation Programs periodically required Winstead to complete and submit a form that was used to determine his qualification for continued benefits. This form, CA-EN1032 ("Form 1032"), requests information about the preceding fifteen-month period, including data about the disability recipient's employment history during that time. ¹

Winstead was still receiving FECA disability payments when, in 1985, he began to work as a computer aide in a District of Columbia high school, and when, in 1986, he reenlisted as a member of the District of Columbia National Guard. Nonetheless, Winstead filled out six Form 1032s, between October 1988 and September 1992, in which he failed to disclose this employment. The allegedly false statements on these forms led to his indictment for six violations of 18 U.S.C. Sec. 1001; ² United States Treasury Department disability checks totaling over $53,000 that had been mailed to Winstead between December 1988 and February 1992 resulted in his being charged with ten mail fraud violations under 18 U.S.C. Sec. 1341. ³

A. Winstead's Trial

In opening argument, both the prosecution and defense counsel made it clear that it would not be disputed that Winstead "was indeed injured ... and had disability payments awarded to him." Trial Tr. (Nov. 23, 1993) at 10-11; see also id. at 7. Instead, the central issue was whether Winstead knowingly misrepresented his employment status to DOL.

The Government's case-in-chief focused on witnesses who identified the forms Winstead completed and the representations he made to DOL. A former DOL special agent testified about a meeting that she had with Winstead on July 11, 1991, during which she asked him about his disability benefits and obtained from Winstead a Form 1032 with false statements on it. See generally Trial Tr. (Nov. 24, 1993) at 46-66. This meeting was videotaped and, after an appropriate foundation was laid, portions of the tape were introduced into evidence and played for the jury.

The Government also set out to establish the payments that had been made to Winstead, both from the U.S. Treasury for the disability benefits, and from his employers, the D.C. Government and the D.C. National Guard. A representative of the D.C. Government testified that, between 1986 and 1992, Winstead had received between $17,700 and $21,300 per year in compensation. Trial Tr. (Nov. 23, 1993) at 184. Sergeant James Thomas of the Personnel Department of the D.C. National Guard similarly identified Winstead's enlistment and compensation records, noting that, between 1988 and 1992, Winstead was entitled to receive between $1,300 and $2,400 per fiscal year as compensation for attendance at monthly drills and annual training. Trial Tr. (Nov. 24, 1993) at 28-29.

On cross-examination of Sergeant Thomas, Winstead's counsel brought out that appellant missed 16 drill sessions between 1986 and 1990. Id. at 36-37. Following this cross-examination, the trial judge questioned Sergeant Thomas:

THE COURT: Does a National Guardsman get paid for a drill that he misses?

THE WITNESS: No, he does not, sir. That's the question that wasn't asked. No, he does not. That leave and earnings statement is blank. It says, "No drill performance."

THE COURT: No, drill, no pay?

THE WITNESS: No money. No money is earned.

THE COURT: Are there certain requirements for the physical condition for a member of the National Guard?

THE WITNESS: Yes, sir.

THE COURT: What are they?

THE WITNESS: They are that the individual be able to--depending upon age. Depending upon the individual's age. They must be able to do a two-mile run, "X" amount of situps, and pushups, depending upon age.

THE COURT: If a person was walking around with a cane, would he be eligible to be a member of the National Guard?

THE WITNESS: They could be, until such time as they were medically evaluated and found not to be militarily fit.

THE COURT: What's your experience as a--

THE WITNESS: My experience is that we have a thing called profiles. When people injure themselves, then we write it--write it up, send them to be evaluated. Then we get the evaluation back and make the determination.

THE COURT: If a person is disabled to the extent that he has to walk around with a cane and has great difficulty walking, would he--could he be a member of the Guard?

THE WITNESS: No, sir. The medical evaluation would stipulate that that individual would have to be medically--would be medically unfit to remain a member of the National Guard.

Id. at 37-38.

Upon completion of the trial judge's questioning of Sergeant Thomas, Winstead's attorney asked for leave to inquire further. In response to additional questions on cross-examination, Sergeant Thomas testified that he was not a member of Winstead's unit, did not attend Winstead's drill sessions, had no idea whether Winstead was ever scheduled for a medical evaluation, and had no knowledge of whether Winstead had used a cane at a drill session. Id. at 39. As Sergeant Thomas put it, "The only thing I testify is on the documents that are maintained in the Military Personnel Record jacket." Id. On redirect, the prosecutor drew information from Sergeant Thomas that Winstead had participated in drill sessions other than those for which his leave and earnings statements showed "no drill performance." Id. at 40-41.

B. The Jury Instructions

Although the specific elements of the two crimes with which Winstead was charged differ, the representations he made to DOL were relevant to both of the charges against him. Therefore, in reviewing the jury instructions, it is helpful to consider not only the portion of the jury instructions to which Winstead objects, but also other excerpts relevant to the jury's deliberations over Winstead's statements to DOL.

When instructing the jury on the mail fraud counts, the trial judge adhered to the language of 18 U.S.C. Sec. 1341 in stating that the Government was required to prove that Winstead "knowingly devised or knowingly participated in a scheme or artifice to defraud or to obtain money by false or fraudulent pretenses, representations or promises as detailed in ... the indictment." Trial Tr. (Nov. 29, 1993) at 66. To further assist the jury, the judge defined "[a] scheme or artifice to defraud or to obtain money or property by means of false or fraudulent pretenses, representations or promises" as "any deliberate plan of action or course of conduct by which someone intends to deceive or to cheat another or by which someone intends to deprive another of...