U.S. v. Woodard

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation459 F.3d 1078
Docket NumberNo. 04-12056.,04-12056.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Debra B. WOODARD, a.k.a. Debra Beverly, John D. Woodard, Defendants-Appellants.
Decision Date08 August 2006

Kristin Wedean, Wedean & Associates, Daniel Kane, Atlanta, GA, for Defendants-Appellants.

Richard M. Langway, Amy Levin Weil, U.S. Atty., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before EDMONDSON, Chief Judge, KRAVITCH, Circuit Judge, and MIDDLEBROOKS*, District Judge.

PER CURIAM:

Defendants John and Debra Woodard were convicted of 37 counts of mail fraud, in violation of 18 U.S.C. sections 1341 and 1346, and one count of conspiracy to commit mail fraud and deprivation of honest services, in violation of 18 U.S.C. sections 371, 1341, and 1346. Defendants challenge their convictions and sentences. Finding no reversible error, we affirm.

I. BACKGROUND

Evidence showed that between 1992 and 2001, spouses John and Debra Woodard (collectively "Defendants") used the U.S. mail to carry out a scheme to defraud the City of Atlanta, Georgia (the "City") and the rightful owners of money and property that was held in the custody of the Atlanta Police Department (the "APD"). John Woodard was employed by the City as a police officer; he was the Captain in charge of administering APD's Property Control Unit (the "PCU") from 1989 to 1992. The PCU maintains custody and control of property seized by the APD, including seized money. Upon presenting proper identification and paperwork, property owners are permitted to reclaim their seized property. Unclaimed money is deposited into the City's general fund after a certain time.

Around the time John stopped supervising the PCU, evidence indicates Defendants formed a company known as "R.A.P. Limited" or "R.A.P. Inc." ("RAP").1 RAP charged clients a fee — often fifty percent of the reclaimed funds — to reclaim their money from the APD. Debra was RAP's chief executive. After RAP was formed, John continued to work as an officer of the APD but in a different capacity, outside the PCU.

To facilitate its reclamation business, RAP would contact those persons with unclaimed money held by the APD. Some evidence indicates that RAP representatives misled prospective clients that RAP provided the only means through which they could reclaim their money. Clients would execute a limited power of attorney, empowering a RAP employee to act as an intermediary between the client and the APD. RAP would then reclaim the money from the APD and pay to the client the client's share.

Evidence showed that RAP relied on confidential APD information obtained by John Woodard to locate and to contact potential clients. Evidence also showed that RAP sometimes used forged powers of attorney to obtain money held by the APD. All of this money was deposited into Debra Woodard's personal accounts or RAP accounts, and some money was never distributed to its rightful owners. Evidence also showed these things:

(1) RAP "Investigator" Lawrence Yarbrough forged signatures on some powers of attorney for persons he was unable to locate or persons who were deceased. Debra Woodard knew about these forgeries.

(2) Debra Woodard and another RAP employee presented forged powers of attorney to the APD to reclaim property.

(3) John Woodard signed Debra's name as notary on fraudulent powers of attorney and delivered those powers of attorney along with other papers to the APD for processing.

(4) Defendants took steps to conceal their connection with each other, and John took steps to hinder the APD's investigation into RAP.

(5) Confidential documents and copies of files from the APD's investigation of RAP were recovered from Defendants' home.

In total, the APD issued $710,262 to RAP. The 37 counts of mail fraud for which Defendants were convicted involved approximately $33,900 of this total. RAP returned $43,243 to the APD.

The jury found Defendants guilty of all counts. At sentencing, the district court calculated the total loss amount to be $710,262 and enhanced Defendants' sentences in accordance with U.S. Sentencing Guidelines section 2F1.1(b)(1)(K) (2000) (recommending 10-point increase if loss amount was greater than $500,000 but less than $800,000). John and Debra Woodard were sentenced to serve 36 months' imprisonment and 24 months' imprisonment on each count, respectively, to be served concurrently. The district court further sentenced Defendants to pay $333,504 in restitution, jointly and severally, to the City. This figure, according to the district court, takes into account that some of RAP's clients received from RAP fifty percent of the money owed to them by the City.

II. DISCUSSION

Defendants raise three main enumerations of error. First, Defendants challenge their convictions by arguing that the district court failed to instruct the jury properly. Second, Defendants allege the district court erred by failing to direct a judgment of acquittal on the conspiracy charge. And third, Defendants challenge their sentences by alleging the district court erred in calculating the total loss amount and in ordering that restitution be paid to the City.

A. Jury Instructions

Count 1 of the indictment charged Defendants with conspiracy to commit mail fraud. A conspiracy is an agreement between two or more persons to accomplish an unlawful plan. 18 U.S.C. § 371; United States v. Parker, 839 F.2d 1473, 1477 (11th Cir.1988). 18 U.S.C. section 1341 prohibits the use of the mails to implement a scheme or artifice to defraud. 18 U.S.C. section 1346 defines "scheme or artifice to defraud" to include schemes to deprive another of the intangible right of honest services. Defendants contend the district court, when it instructed the jury on the conspiracy charge, erred in these ways: (1) by instructing the jury that they could convict Defendants of conspiracy to commit either mail fraud or deprivation of honest services when the indictment charged Defendants with conspiracy to commit both; (2) by failing to give properly the Pinkerton instruction; and (3) by failing to give a multiple conspiracy instruction.

We review jury instructions de novo to determine whether they misstate the law or mislead the jury to the objecting party's prejudice. United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001). If the instructions accurately state the law, the trial judge has wide discretion to determine their style and wording. United States v. Kenney, 185 F.3d 1217, 1222-23 (11th Cir.1999).

1. Disjunctive conspiracy instruction. Defendants were charged with committing a single conspiracy with two unlawful objects: using the mails to defraud the City and its citizens of (1) money and property and (2) John Woodard's honest services. Defendants contend that the district court erred when it instructed the jury that Defendants could be convicted of conspiracy if the Government proved beyond a reasonable doubt that Defendants intended to achieve at least one of the objects and the jury unanimously agreed on which of the objects Defendants intended to achieve.2

Defendants assert that this excuses the Government from having to prove each and every element of the offense. We disagree. We have written that "[a] guilty verdict in a multi-object conspiracy will be upheld if the evidence is sufficient to support a conviction of any of the alleged objects." United States v. Ross, 131 F.3d 970, 984 (11th Cir.1997); see also United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir.2000) ("[W]here an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof of only one of the means, and accordingly the jury instruction may properly be framed in the disjunctive.").

By the way, the district court's unanimity instruction was virtually a verbatim recitation of Eleventh Circuit Criminal Pattern Jury Instruction 13.2. The jury returned a general verdict finding Defendants guilty. Evidence at trial was sufficient to show that Defendants knowingly agreed to and knowingly acted in an effort to accomplish the conspiracy's objects.

2. Pinkerton instruction. Defendants contend the district court erred when it instructed the jury that, if the jury found a defendant guilty of conspiracy, then the jury could then find that defendant guilty of the substantive mail fraud offenses based on the acts of a co-conspirator.3 In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court concluded that a defendant may be convicted of a substantive offense based on the acts of co-conspirators. Defendants assert that the court's Pinkerton instruction, when combined with the disjunctive conspiracy instruction discussed above, removed the intent element from the substantive mail fraud offenses. Because Defendants did not raise this objection below, we review for plain error. Hansen, 262 F.3d at 1248.

Criminal intent to commit substantive offenses may be established by the formation of the conspiracy. Pinkerton, 66 S.Ct. at 1184. But Defendants argue that intent to commit the 37 substantive mail fraud acts was not established if the jury concluded in its general verdict that the evidence supported only one object of the conspiracy. Even if the jury so found, Defendants' argument lacks merit.

In its general verdict, the jury found that both Defendants were part of a conspiracy to use the mails to defraud the City and its citizens of (1) money and property, or (2) John Woodard's honest services, or (3) both. And in convicting Defendants on the substantive counts, the jury also found that at least one Defendant used the mails to carry out the scheme. Because the indictment described the substantive counts of mail fraud as using the mail to defraud the City and its citizens of money and property and John Woodard's honest...

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