United States v. James

• Decision Date: 03 April 2020
• Docket Number: No. 19-1250,19-1250
• Citation: 955 F.3d 336
• Parties: UNITED STATES of America v. Wayne A.G. JAMES, Appellant
• Court: U.S. Court of Appeals — Third Circuit

955 F.3d 336

UNITED STATES of America

v.Wayne A.G. JAMES, Appellant

No. 19-1250

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a December 12, 2019

Filed: April 3, 2020

Brian A. Benczkowski, Annalou Tirol, Amanda R. Vaughn, United States Department of Justice, Criminal Division, Public Integrity Section, 1400 New York Avenue, N.W., Washington, DC 20005, Gretchen C.F. Shappert, Delia L. Smith, Office of the United States Attorney, 5500 Veterans Drive, United States Courthouse, Suite 260, St. Thomas, VI 00802, Counsel for Appellee

Gabriel J. Villegas, Federal Public Defender District Virgin Islands, Office of the Public Defender, 1336 Beltjen Road, Suite 202, Tunick Building, St. Thomas, VI 00802, Michael A. Rogers, Office of Federal Public Defender, 4094 Diamond Ruby, Suite 5, Christiansted, VI 00820, Counsel for Appellant

Before: SMITH, Chief Judge, McKEE, and SHWARTZ, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Defendant Wayne A. G. James appeals his conviction for wire fraud and embezzlement. James challenges: (1) the introduction of evidence outside the statute of limitations; (2) the Government’s attempts to introduce evidence about James’s eviction lawsuit; (3) the use of a demonstrative aid; and (4) the substitution of an excused juror with an alternate after the jury had been polled. Discerning no error, we will affirm.

I

A

During the 2009 to 2010 term, James served as a senator in the Virgin Islands Legislature. The Legislature maintained a fund that James and other senators could use to pay for Legislature-related expenses, such as the costs of running their offices, supplies, or for legislative initiatives. Senators sometimes received checks from the fund for such items. James used a large portion of the checks issued to him for his personal expenses.

James obtained these checks by presenting invoices purportedly associated with work on a historical project. Before becoming a senator, James took an interest in the 1878 Fireburn, a revolt on St. Croix. The Danish National Archives ("the Archives") possesses historical documents about the event. In February 2008, James inquired about retrieving documents from the Archives and received a cost estimate. For a fee, which had to be pre-paid by wire transfer, the Archives would gather and provide copies of documents to individuals outside of Denmark. James hoped to use the records to eventually produce a movie.

Over a year later, after James’s election to the Legislature, he requested funds for his Fireburn research project from the Legislature. From April 2009 through mid-October 2010, James obtained several checks by submitting false invoices for purported translation and research work for the Fireburn project. Only a fraction of the funds James received were used to pay for the Danish records and translations. James used most of the funds for his personal benefit, including for his re-election campaign.

Law enforcement investigated this conduct and, on October 1, 2015, a grand jury returned an indictment charging James with two counts of wire fraud in violation of 18 U.S.C. § 1343 and one count of federal program embezzlement in violation of 18 U.S.C. § 666(a)(1)(A).

B

At trial, three evidentiary issues arose that are relevant to this appeal. First, the District Court permitted the Government to introduce evidence of acts outside the limitations period, 18 U.S.C. § 3282(a).

Second, James moved to exclude evidence that he paid a court-ordered $18,000 bond in an eviction dispute with his landlord on the same day as he cashed one of the checks from the Legislature. The District Court did not rule on this motion before trial, but it instructed the Government not to discuss the eviction case in its opening. Thereafter, the Government called two witnesses to testify about the eviction-related payment, Gerald Groner and Indira Chumney. Groner was an attorney who had participated in the eviction litigation. James objected to Groner’s testimony before any questioning took place. The objection was sustained and Groner was excused. Chumney was the branch operations manager for First Bank and was questioned about a bank statement and deposit slip reflecting James’s deposit of $18,000. James objected before she testified about any other topic. The objection was sustained and the witness was excused. Although neither witness testified about the eviction case, James argued that the Government’s attempts to introduce evidence about it constituted prosecutorial misconduct and moved for a mistrial. The Court denied the motion.

Third, the District Court permitted the use of a chart as a demonstrative aid to accompany the case agent’s testimony. The chart captured information from admitted exhibits, including dates of check requests, amounts requested and paid, and dates checks were cashed. James objected to the Government’s effort to offer the chart into evidence under Federal Rule of Evidence 1006. The Court took the objection under advisement. The Court thereafter asked if James objected to use of the chart as a demonstrative aid and James replied "no objection." App. 676. The Court thereafter instructed the jury that it should consider the chart as a guide for testimony, not as substantive evidence. The Government used the chart during the case agent’s testimony to discuss the transactions, but it was not admitted into evidence.

C

When the jury determined they had completed their deliberations, the foreperson announced a guilty verdict. Before the District Court recorded the verdict, it polled the jury and perceived a problem with Juror 8. After discussion with counsel, the Court questioned Juror 8. The questioning revealed Juror 8’s limited ability to speak and understand English. The Court also noted concerns about Juror 8’s candor and memory, and then it excused Juror 8. James consented to the Court’s decision to excuse Juror 8, but he objected to replacing the excused juror with an alternate. Despite James’s objection, the Court replaced the excused juror with an alternate. The Court then instructed the jury: (1) to "restart" its deliberations "as though you are starting from scratch," App. 913-14; (2) "there is no rush to reach a verdict;" App. 914; (3) the verdict "must be considered and deliberate;" id.; and (4) the new juror "should feel as though he is beginning anew, not ... interposing or becoming someone who is interrupting an ongoing process," id. The reconstituted jury retired to deliberate anew and eventually announced a unanimous guilty verdict.

James appeals.

II¹

James challenges: (1) the introduction of evidence outside the statute of limitations; (2) the Government’s attempts to introduce evidence of the payment in the eviction lawsuit; (3) the use of the chart during the case agent’s testimony; and (4) the substitution of an excused juror with an alternate after jury polling. We address each claim in turn.

A²

James argues that the District Court erred in permitting the Government to introduce evidence of acts falling outside the statute of limitations. 18 U.S.C. § 3282(a). "The general statute of limitations is five years after the offense is committed." United States v. Schneider, 801 F.3d 186, 195 (3d Cir. 2015) (citing 18 U.S.C. § 3282(a) ). Because the Indictment was filed in October 2015, James argues that evidence of conduct that occurred before October 2010 is inadmissible.

To prove wire fraud, the Government must show that the defendant "willful[ly] participat[ed] in a scheme or artifice to defraud," with intent to defraud, and used a wire to further that scheme. United States v. Andrews, 681 F.3d 509, 518 (3d Cir. 2012). Wire fraud is not a continuing offense, United States v. Siddons, 660 F.3d 699, 705 (3d Cir. 2011), but each wire may further a single, ongoing scheme to defraud, see Andrews, 681 F.3d at 518. Thus, "mailings [and wirings] that fall outside the statute of limitations can be considered as evidence to prove [a] fraud that [occurred] within the statute of limitations." United States v. Pharis, 298 F.3d 228, 234 n.3 (3d Cir. 2002) (en banc), as amended (Sept. 30, 2002); see United States v. Morelli, 169 F.3d 798, 806 n.9 (3d Cir. 1999) ("[T]he wire fraud and mail fraud statutes differ only in form, not in substance[.]").

Because the jury may consider evidence outside the limitations period that proves the existence of an artifice to defraud, Pharis, 298 F.3d at 234, the District Court properly permitted evidence predating October 2010. Such evidence, including James’s submission of false invoices to the Legislature to obtain funds for his own use, proved "the existence of [his] overarching scheme to defraud, [which] is an essential element of the wire fraud offenses." App. 101-02. More specifically, the Government introduced evidence of fake invoices and check requests from 2009 and early 2010, together with the fraudulent, non-time-barred October 2010 invoices, to show that James had an ongoing scheme to use the Fireburn research as cover to obtain Virgin Island funds for his personal use. The fact that James’s scheme began before October 2010 does not make evidence about his scheme from that period inadmissible, as it is relevant to prove an element of a non-time-barred crime: the existence of a scheme to defraud. Pharis, 298 F.3d at 234 ; see also Fitzgerald v. Henderson, 251 F.3d 345, 365 (2d Cir. 2001) ("A statute of limitations does not operate to bar the introduction of evidence that predates the commencement of the limitations period but that is relevant to events during the period."). Thus, the Court did not abuse its discretion in admitting evidence of activities that occurred outside the statute of limitations.³

B⁴

James also argues that the District Court erred in refusing to grant a mistrial motion based on alleged prosecutorial misconduct. According to James, the Government attempted to introduce evidence of an eviction matter that the Court had precluded.

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