United States v. Atkins

• Decision Date: 01 February 2018
• Docket Number: No. 17-1074,17-1074
• Citation: 881 F.3d 621
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Kenneth W. ATKINS, also known as Ken Atkins, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

881 F.3d 621

UNITED STATES of America, Plaintiff–Appellee

v.Kenneth W. ATKINS, also known as Ken Atkins, Defendant–Appellant.

No. 17-1074

United States Court of Appeals, Eighth Circuit.

Submitted: January 10, 2018

Filed: February 1, 2018

Rehearing Denied April 24, 2018

David R. Ferguson, Aaron L. Jennen, Assistant U.S. Attorney, Mark W. Webb, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR, Jonathan Dean Ross, Assistant U.S. Attorney, Benjamin Wulff, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Texarkana, AR, for Plaintiff–Appellee.

Kenneth W. Atkins, Pro Se.

Glen R. Hines, Springdale, AR, for Defendant–Appellant.

Before LOKEN, BEAM, and KELLY, Circuit Judges.

BEAM, Circuit Judge.

Kenneth Atkins appeals following a guilty verdict and sentence on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 and three counts of money laundering in violation of 18 U.S.C. § 1957(a) and (d). Atkins challenges the district court's¹ denial of his motion for judgment of acquittal, comments made by the government during trial, and various aspects of his sentencing. For the reasons stated herein, we affirm.

I. BACKGROUND

In 2015 a grand jury charged Atkins with taking part in a scheme from January 2011 through March 2012 to defraud Georgia Pacific, a company that operated a paper mill in Arkansas. The premise of the alleged scheme was to obtain money from Georgia Pacific by falsely presenting scale tickets for non-existent pulpwood loads that resulted in payments to Atkins. The indictment alleged that Atkins, an independent contractor who delivered wood supplies to the Georgia Pacific paper mill, caused an employee at the mill who worked as a scaler/security guard in the scale house, to generate these false scale tickets. This employee, Mary Baker, would then receive a small kickback for her role in the scheme. Because wire transmissions and bank transfers were involved, the grand jury charged Atkins with one count of conspiracy to commit wire fraud and three counts of money laundering. Following a seven-day jury trial wherein Atkins represented himself under the supervision of an appointed attorney, the jury returned guilty verdicts on all counts.

II. DISCUSSION

A. Motion for Judgment of Acquittal

At the close of the government's case at trial, Atkins moved for judgment of acquittal on all counts, which the district court denied. On appeal, Atkins claims that there was insufficient evidence supporting convictions on each count and that the district court should have thus granted his motion. "This court reviews de novo the denial of a motion for judgment of acquittal, viewing the evidence most favorably to the guilty verdict, resolving all evidentiary conflicts in favor of the government, and accepting all reasonable inferences from the evidence." United States v. Morris, 817 F.3d 1116, 1119 (8th Cir. 2016).

As to the conspiracy conviction, the basis of Atkins' argument on appeal (and at trial) is that the government's primary witness, Atkins' alleged co-conspirator Mary Baker, was not reliable. However, viewing the evidence in the light most favorable to the guilty verdict, the government presented ample evidence of Atkins' participation in the conspiracy. To support a conspiracy conviction, the government was required to show: (1) an agreement between Atkins and one or more persons to commit wire fraud; (2) Atkins knew of the agreement; and (3) Atkins intentionally joined the agreement. United States v. Foster, 740 F.3d 1202, 1205 (8th Cir. 2014). We do not "reweigh the evidence or assess the credibility of witnesses." United States v. Whitlow, 815 F.3d 430, 435 (8th Cir. 2016). Mary Baker's testimony, supported by recovered text messages, described how Atkins approached her and how the two carried out the scheme. The testimony of the investigating corporate security officer who discovered the double-weighs, viewed favorably in light of the guilty verdict, was also more than sufficient to support the conviction in the case. Thus, the district court did not err in denying Atkins' motion for judgment of acquittal at the close of the government's case.

On the money laundering charges (counts two through four), Atkins argues that the government failed to present sufficient evidence on two of the elements. Precisely, he claims the government failed to prove the transactions were derived from wire fraud and that he knew the funds involved proceeds of a criminal offense. Again, he bases this claim largely on his assertion that Mary Baker's testimony was unreliable, a credibility determination we do not assess on appeal. Id. Carefully reviewing the case presented by the government at the time of Atkins' motion, there is no support for his arguments. The testimony of Mary Baker, along with that of Atkins' accountant, his daughter, and the other government witnesses, as well as the evidence supporting the monetary transactions, sufficiently met the government's burden on these charges.

As to count three particularly, Atkins argues, for the first time on appeal that the government failed to establish that the transfer of funds was of a value greater than $10,000 because the government improperly aggregated separate transactions to arrive at the requisite $10,000 amount required by statute to support the charge. He argues the plain language of 18 U.S.C. § 1957 prohibits this practice and the district court should have dismissed this count sua sponte.² Because this contention is raised for the first time on appeal, we review it for plain error only. United States v. Drapeau, 827 F.3d 773, 777 (8th Cir. 2016). There was no error, much less plain error here. In the indictment, count three charges Atkins with a violation of 18 U.S.C. § 1957(a) and (d) by causing cashier's checks in the amount of $9,000 and $4,000 to be issued from First National Bank in Crossett, Arkansas, which checks purchased a $13,000 tractor, when said funds consisted of the proceeds of the specified unlawful activity of wire fraud. The violative transaction was Atkins' purchase of a $13,000 tractor. The fact that Atkins tried to disguise his payment by purchasing separate but consecutive cashier's checks on the same day and then orchestrated the payment for the tractor in two installments with the separate checks is of no significant consequence and the district court did not commit plain error by not dismissing this count sua sponte.

B. Credibility of Witness Issue

Atkins additionally argues that the government improperly vouched for the credibility of Mary Baker at trial. We likewise review this claim for plain error, as there was no objection at trial. United States v. Samples, 456 F.3d 875, 885–86 (8th Cir. 2006). Atkins claims it was improper during questioning for the government to ask Baker about her own sentencing pending before the same judge in order to point out that it was especially important for her to tell the truth.³ Atkins next claims the government then compounded the impropriety during its closing arguments by stating in various ways that Baker had nothing to gain and everything to lose by falsely testifying at this trial before this particular judge who would likewise impose her sentence.⁴

Improper vouching may occur when the government refers to facts outside the record or implies that the veracity of a witness is supported by facts outside the record and unavailable to the jury. United States v. Benitez–Meraz, 161 F.3d 1163, 1167 (8th Cir. 1998). "Improper vouching may occur when the government expresses a personal opinion about credibility, implies a guarantee of truthfulness, or implies it knows something the jury does not." Bass v. United States, 655 F.3d 758, 761 (8th Cir. 2011) (quoting United States v. Roundtree, 534 F.3d 876, 880 (8th Cir. 2008) ). No matter, however, "[t]he relevant question ultimately is whether the prosecutor's comments, if improper, ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’ " United States v. Mullins, 446 F.3d 750, 757 (8th Cir. 2006) (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ).

Here, the government's questioning during its case-in-chief and comments during closing arguments were not improper vouching, but rather arguments about Baker's credibility in the face of repeated accusations by Atkins about her trustworthiness. See United States v. Sevilla–Acosta, 746 F.3d 900, 905–06 (8th Cir. 2014) (finding appropriate the government's comments about a cooperating witness's benefits and motivation for testifying truthfully, characterizing them as arguing credibility and not crossing the line into vouching for credibility). Baker's credibility was front and center in this trial. Atkins himself repeatedly called her a liar from the start, asked her when she was going to start telling the truth during questioning, referred to her as the "lyingist woman on the face of the earth" during his opening statement, and repeated this mantra throughout trial and during closing. In its questioning and closing, the government did not allude to any special knowledge regarding Baker's credibility nor did it give its own personal opinion of her credibility. These comments in no way "infect[ed] the trial with unfairness," Mullins, 446 F.3d at 757, especially in light of the remaining admitted evidence and witness testimony. There was no plain error in the court's failure to address the matter sua sponte, or set aside Atkins' convictions on this basis.

C. Willful Blindness Instruction

Atkins challenges the district court's inclusion of a deliberate indifference/willful blindness instruction; a matter this court reviews for abuse of discretion. Kahle v. Leonard, 563 F.3d 736, 741 (8th Cir. 2009). He claims there was no evidentiary basis for a willful blindness jury instruction. However, the evidence in this matter did not point solely to either actual...