US v. Leeseberg

• Decision Date: 09 May 1991
• Docket Number: No. 90-10082-01.,90-10082-01.
• Citation: 767 F. Supp. 1091
• Parties: UNITED STATES of America, Plaintiff, v. Roger P. LEESEBERG, Defendant.
• Court: U.S. District Court — District of Kansas

767 F. Supp. 1091

UNITED STATES of America, Plaintiff, v. Roger P. LEESEBERG, Defendant.

No. 90-10082-01.

United States District Court, D. Kansas.

May 9, 1991.

David Lind, Asst. Atty. Gen., for U.S.

Jean Oliver Moore, Geary N. Gorup, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

On April 17, 1991, the jury returned a verdict finding Roger P. Leeseberg guilty of all four counts of wilful misapplication of bank funds in violation of 18 U.S.C. § 656. This case comes before the court upon the defendant's motion for a new trial and upon the defendant's motion for judgment of acquittal notwithstanding the verdict. The Government opposes both motions. The court, having considered the briefs of counsel, the evidence presented at trial and the applicable law, is now prepared to rule.

MOTION FOR NEW TRIAL

The defendant asserts in six separate paragraphs alleged errors entitling him to a new trial. At trial, the defendant testified on his own behalf and claimed that he did not wilfully misapply the funds of the bank. The defendant contended that each of the four transactions for which he was charged were done with the authorization of the bank customer.

The court may grant a motion for new trial "if required in the interest of justice." Fed.R.Crim.P. 33. "A motion for new trial `is not regarded with favor and is granted only with great caution, being addressed to the sound discretion of the trial court.'" United States v. Page, 828 F.2d 1476, 1478 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987) (quoting United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977)). See United States v. Martinez, 763 F.2d 1297 (11th Cir.1985).

The court will discuss each of the arguments raised by the defendant. The court notes that neither of the defendant's motions contain any reference to relevant case law.

1. The jury misunderstood the burden of proof.

Leeseberg contends the jury obviously misunderstood the burden of proof as the evidence was insufficient to support his conviction. The court has again reviewed the jury instructions and is confident that the instructions, particularly instructions 5, 7 and 8, accurately and clearly explain that the government bears the burden of proving the defendant's guilt beyond a reasonable doubt as well as providing the definition of "reasonable doubt." "The assumption that juries can and will follow the instructions they are given is fundamental to our system of justice." United States v. Lonedog, 929 F.2d 568 (10th Cir.1991) (quoting United States v. Cardall, 885 F.2d 656, 668 (10th Cir.1989)). As discussed later in this opinion, the court is satisfied that the evidence viewed in the light most favorable to the Government proved each of the elements of the charged offenses beyond a reasonable doubt. The court finds this argument unpersuasive and without merit.

2. The Government violated the defendant's Fifth and Sixth Amendment rights.

Leeseberg contends that the Government, during direct examination of a Government witness, asked a question which inferred that Roger Leeseberg had a duty to produce a note located at Leeseberg's home to prove his innocence, thus commenting on Leeseberg's right to remain silent and shifted the burden of proof to the defendant.

During the Government's case-in-chief, Dan Gipple, an examiner with the Office of the Comptroller of the Currency, testified to statements made by the defendant during the bank's board of director's meeting on December 7, 1988. It was at this meeting that the board confronted Leeseberg with evidence of the $100,000 Galvin transaction.¹ Gipple testified that Leeseberg said the $100,000 transaction was a gift from Leo Galvin to be used for the bank. According to Gipple, Leeseberg claimed he considered the gift to be a loan and had prepared a note which evidenced his claim. Mr. Gipple and other witnesses testified that when they requested Leeseberg to retrieve the document from his home in Independence, Kansas, Leeseberg either refused to do so or did not respond to the request.

During cross-examination, the defendant's attorney explored Gipple's testimony concerning the note. The defendant's attorney inquired as to whether Gipple understood that the written document was a promissory note or a "note" in the common usage of the word. Counsel also inquired into the purpose and tenor of the meeting. It is clear that the meeting was called not only to confront Leeseberg with the $100,000 transaction, but unless a satisfactory explanation of the transaction was given, to request his resignation or in the alternative fire him. A letter of resignation was apparently prepared for Leeseberg's signature prior to the time the meeting began.

On redirect, the Government asked Gipple if he would expect one accused of misappropriating monies would retrieve a document that the accused person claims to possess in order to prove the existence of the document. The defendant objected to this question and the court sustained the objection. Immediately after that question was asked, the defendant, in chambers, made a motion for mistrial based upon that question, basically making the same argument presented in this motion.

The court concludes that this question, while improper as it calls for speculation, does not constitute an unconstitutional comment upon Leeseberg's right to remain silent, nor does the question impermissibly shift the burden of proof to the defendant. The question asked related to Leeseberg's attitude and demeanor on December 7, 1988, and was not a comment on Leeseberg's failure to produce the note at trial. At the time the bank examiners asked for the note, Leeseberg was not under arrest. The court is not persuaded that the question, in the context in which it was asked, was a comment on the defendant's right to remain silent, nor did the question shift the burden of proof from the Government.

In any event, the jury was correctly instructed that the burden of proof is always on the Government and that a plea of not guilty "puts in issue every material ingredient of the crime charged and makes it incumbent upon the United States to establish by the evidence, to your satisfaction beyond a reasonable doubt, as such term is hereinafter defined, every material allegation of the offense charged." Instruction 5. Instructions 8, 10, and 15 each explain that the law never imposes upon the defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.

The court concludes that this argument is without merit.

3. Improper argument.

Leeseberg contends the Government improperly argued "that the instructions would permit the jury to convict the defendant even if he had legitimately obtained the contested funds from Mr. Galvin and Mr. Jackson, because the subsequent transfers of funds constituted the crimes in question." The Government contends that the defendant's recollection of the Government's closing statement is incorrect. The court notes that no contemporaneous objection was made during the Government's closing argument. "In the absence of a timely objection, the question is not whether the particular conduct of a prosecutor was appropriate; rather, the question becomes whether the conduct rose to a level of `plain error' affecting substantial rights of the defendant." United States v. Haar, 931 F.2d 1368, 1376 (10th Cir.1991) (citing Fed.R.Crim.P. 52(b); United States v. Young, 470 U.S. 1, 6, 105 S.Ct. 1038, 1041, 84 L.Ed.2d 1 (1985)).

As set-out more fully in footnote # 1 of this opinion, the Government argued that the defendant could be convicted of wilful misapplication of funds even if Galvin had made a $100,000 gift to the bank because Leeseberg had used the money to benefit the bank's holding company (which indirectly benefited Leeseberg and his wife), which, according to the Government's witnesses, did not benefit the bank. Therefore, the Government's argument was not improper. If the jury believed that Leeseberg used the $100,000 for a purpose which did not comport with the directions of Leo Galvin (and concurrently personally benefited the defendant), his actions constituted a wilful misapplication of bank funds.²

The court concludes that this argument was not improper and did not deprive the defendant of a fair trial.

4. Improper argument as to credibility of witnesses.

In closing argument, during the Government's rebuttal, the prosecutor made statements which injected his personal opinion regarding the credibility of the witnesses. This argument drew an immediate objection which was sustained. The defendant contends that this error entitles him to a new trial. The Government responds that this error, if it was error, does not necessitate a new trial.

"A trial court has great discretion in determining whether a mistrial is warranted based on alleged prosecutorial misconduct, and its determination will not be disturbed absent an abuse of discretion." Haar, 931 F.2d at 1374 (citing United States v. Pinto, 755 F.2d 150, 153 (10th Cir.1985)).

"A prosecutor's summation may appropriately suggest to the jury what inferences it ought to draw from the evidence in the case." United States v. Peña, 930 F.2d 1486, 1490 (10th Cir.1991). It is improper, however, for the prosecutor to inject his personal opinion as to the credibility of the witnesses or weight of the evidence. See Hopkinson v. Shillinger, 866 F.2d 1185, 1206 (10th Cir.1989) ("A prosecutor should not assert his personal knowledge of the facts, except when testifying as a witness."); United States v. Ainesworth, 716 F.2d 769 (10th Cir.1983). However, the court concludes that this error did not deprive the defendant of a fair trial and does not serve as proper ground for a new trial. The prosecutor's injection of his personal opinion was singular and isolated. The defendant's timely objection was sustained.

In H...