United States v. Chafin

• Decision Date: 28 October 2015
• Docket Number: No. 14–10160.,14–10160.
• Citation: 808 F.3d 1263
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Richard A. CHAFIN, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

808 F.3d 1263

UNITED STATES of America, Plaintiff–Appellee,

v.Richard A. CHAFIN, Defendant–Appellant.

No. 14–10160.

United States Court of Appeals, Eleventh Circuit.

Oct. 28, 2015.

Michelle Lee Schieber, Michael J. Moore, U.S. Attorney, U.S. Attorney's Office, Macon, GA, James N. Crane, U.S. Attorney's Office, Albany, GA, for Plaintiff–Appellee.

Martin J. Vogelbaum, Cynthia W. Roseberry, Federal Public Defender's Office, Macon, GA, for Defendant–Appellant.

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

Before JORDAN and DUBINA, Circuit Judges, and GOLDBERG,^* Judge.

DUBINA, Circuit Judge:

Richard Chafin appeals his convictions for federal-program embezzlement, in violation of 18 U.S.C. § 666, and for obstructing justice by hindering the communication of information about a potential federal offense to federal officials, in violation of 18 U.S.C. § 1512(b)(3). After reviewing the record, reading the parties' briefs, and having the benefit of oral argument, we affirm Chafin's embezzlement conviction, vacate his § 1512(b)(3) conviction, and remand to the district court for further proceedings consistent with his opinion.

I.

In 2009, a federal grand jury indicted Chafin on one count of federal-program embezzlement and one count of obstructing a federal investigation. He pleaded not guilty and waived his right to trial by jury. During a two-day bench trial in May 2010, the government presented evidence of the following.

Chafin served as the Sheriff of Brooks County, Georgia for almost 20 years. In 2007 and 2008, his last two years in office, 225 checks totaling $65,730 were drawn on the jail commissary account and made payable to and cashed by him. During this period, both a clerk and an administrative assistant in the sheriff's department asked him about the checks. He told them that the funds were to pay an unnamed confidential informant. But according to five employees of convenience stores near the sheriff's department, Chafin frequently came into their stores, cashed checks from the jail commissary account, and used the money to buy lottery tickets.

In both 2007 and 2008, Brooks County received federal funds in excess of $10,000.

Indeed, over fiscal year 2007 (October 2006 through September 2007), the county received $33,897 in federal funds, and it received the same amount over the next fiscal year. These funds were part of a grant from the Office for Victims of Crime, which Congress created to disburse funds under the Victims of Crimes Act, and they were used to cover some of the personnel and operating costs associated with the witness-advocate position in the sheriff's department. According to Robert Thornton, the state official who oversaw these grants' disbursement, at least $25,000 of the witness advocate's salary each year was paid from these funds. Thornton also estimated that during the 2007 and 2008 calendar years Brooks County received $42,000 and $25,000, respectively.

Chafin was defeated by Mike Dewey in the 2008 election. After taking office, the newly elected sheriff engaged a certified public accountant to review the department's financial records. The accountant's review unearthed the checks written to and cashed by Chafin from the jail commissary account. The accountant's review, however, did not uncover any documents supporting Chafin's claim that he paid a confidential informant with these funds.

The Georgia Bureau of Investigation ("GBI") began an investigation into the alleged misuse of jail commissary funds. GBI Agent Michael Callahan interviewed Chafin about the jail commissary account. At trial, Agent Callahan played an audio recording of this interview. Before asking any questions, Agent Callahan advised Chafin of his Miranda¹ rights and told him that the district attorney had requested an investigation into the alleged misuse of jail commissary funds.

Agent Callahan asked Chafin to explain why 225 checks had been drawn on the jail commissary account and made payable to and cashed by him. Chafin did not deny cashing the checks, but he did deny buying lottery tickets with these funds. He told Agent Callahan that much of this money went to Joshua Wolfe, his confidential informant, though Chafin denied paying Wolfe over $60,000. Chafin added that he paid another informant several thousand dollars for information about a Mexican drug deal in the area.

Chafin then explained to Agent Callahan that he viewed these payments as an investment in the seizure proceeds that would likely follow. And when the jail commissary account ran low, he asked the county to move funds from the drug seizure account to the jail commissary account, thus allowing him to keep paying his informants. Chafin told Agent Callahan that while no one in the sheriff's department knew about his informants, he had records in the office showing where they signed for their payments. A subsequent GBI search for Chafin's confidential-informant records came up empty.

Joshua Wolfe committed suicide in December 2008. While Chafin claimed to have paid Wolfe large sums of money as a confidential informant, those closest to him saw no evidence of this. His wife did not know that he was an informant, nor did she believe that he was friends with Chafin or had ever mentioned meeting with him. At the time of Wolfe's death, he and his wife were two months behind on their mortgage, facing foreclosure, and paying back taxes. Furthermore, after Wolfe's death, his wife and beneficiary received only $30 from his bank account. Wolfe's neighbor, a former Lowndes County sheriff's deputy, and his coworker, the woman with whom he left his suicide note, likewise did not know that Wolfe was an informant. Nor did they remember him making any noteworthy purchases in 2007 and 2008 other than a used motorcycle that had a lien on it.

Following the government's case-in-chief, Chafin moved for a judgment of acquittal. See Fed.R.Crim.P. 29. He contended that the government failed to prove that his conduct hindered federal law enforcement, which he said was required for a conviction under 18 U.S.C. § 1512(b)(3). He also claimed that the government failed to prove that he was guilty of federal-program embezzlement because the evidence did not show that the federal-funds threshold in 18 U.S.C. § 666(b) was met. According to him, because most of the federal funds Brooks County received were used to pay the witness advocate's salary, and because § 666(c) excepts bona fide salaries paid in the usual course of business, the government had not shown that the county received more than $10,000 in federal funds during the one-year statutory period. The district court carried the motion with the case, and Chafin rested without presenting a defense.

In April 2012, the district court issued a written order denying the Rule 29 motion and finding Chafin guilty on both counts. In October, the district court sentenced Chafin to concurrent 13–month terms of imprisonment on each count and imposed a three-year term of supervised release. Four days later, Chafin moved for a new trial based on newly discovered evidence. The district court denied the motion in December 2013. This timely appeal followed.²

II.

Several standards of review govern this appeal. "We review both a challenge to the sufficiency of the evidence and the denial of a Rule 29 motion for judgment of acquittal de novo. " United States v. Gamory, 635 F.3d 480, 497 (11th Cir.2011). We examine the evidence "in the light most favorable to the government and resolv[e] all reasonable inferences and credibility issues in favor of the guilty verdicts." United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1203 (11th Cir.2009). We will not overturn a guilty verdict "unless no reasonable trier of fact could find guilt beyond a reasonable doubt." United States v. Farley, 607 F.3d 1294, 1333 (11th Cir.2010). Nor will we disturb the denial of a Rule 29 motion so long as a reasonable trier of fact could find guilt beyond a reasonable doubt. Gamory, 635 F.3d at 497.

When a party raises an objection for the first time on appeal, we review for plain error only. United States v. Rodriguez, 751 F.3d 1244, 1251 (11th Cir.2014). To prevail under this standard, the party must establish the existence of an error that is plain and that affects substantial rights. Id. at 1252. The second prong is satisfied if the error is plain at the time of appellate review, even if it was not so at the time of trial. Henderson v. United States, 568 U.S. ––––, ––––, 133 S.Ct. 1121, 1130–31, 185 L.Ed.2d 85 (2013). An error affects substantial rights if, but for the error, the judicial proceeding's outcome would have been different. United States v. Beckles, 565 F.3d 832, 844 (11th Cir.2009). If these conditions are met, we may exercise our discretion to notice the forfeited error, but only if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005) (quoting United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (alteration omitted)).

We review the district court's interpretation or construction of a statute de novo. Colbert v. United States, 785 F.3d 1384, 1389 (11th Cir.2015).

III.

A.

In 1984, Congress made it a crime for an agent of a covered entity (e.g., a state or local government³ ) to embezzle or convert to his own use property valued at $5000 or more and owned by or under the care, custody, or control of that covered entity. 18 U.S.C. § 666(a)(1)(A). Congress limited the statute's reach to only those covered entities that receive "benefits ... under a Federal program" of more than $10,000 during "any one-year period." § 666(b).

According to the legislative history, Congress enacted § 666"to protect the integrity of the vast sums of money distributed through Federal programs from theft, fraud, and undue influence by bribery." United States v. Keen, 676 F.3d 981, 990 (11th Cir.2012) (quoting S.Rep....