Francis v. People

52 V.I. 381, 2009 WL 4063796, 2009 V.I. Supreme LEXIS 44

• Court: Supreme Court of The Virgin Islands
• Decided: November 19, 2009
• Docket: S. Ct. Crim. No. 2007-093
• Status: Published

Opinions

OPINION OF THE COURT

(November 19, 2009)

DUNSTON, J.

Appellant Laurie Lynn Francis (hereafter “Appellant”) appeals her convictions for eight counts of embezzlement and one count of conspiracy, alleging that insufficient evidence exists to sustain her convictions. For the following reasons, we will affirm the trial court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

From January, 2000, to March, 2003, the Virgin Islands Department of Human Services (hereafter “DHS”) received federal funds to run a Child Care Development Program. This program was run by Delreise Hamilton (hereafter “Hamilton”), who was employed by DHS as a Child Care Specialist within the Office of Child Care and Regulatory Services. The Child Care Development Program issued vouchers — through Hamilton — to childcare providers who would submit those vouchers to Lutheran Social Services (hereafter “LSS”). LSS handled DHS’s accounting and would issue payment either to the childcare providers directly or to DHS, where Hamilton would contact the provider.

Hamilton, along with her roommate Delma Francis (hereafter “Delma”) — Appellant’s sister — submitted fraudulent vouchers to LSS in the names of third parties who had voluntarily submitted their personal information to Hamilton and Delma. Once checks were issued in the names of these third parties, Hamilton and Delma would cash the checks and collect the proceeds. During this period, Appellant informed Delma that she was in desperate need of money. Delma informed Appellant of her activities, and told Appellant that she would need to get a third party’s personal information in order to also receive payments from LSS. Shortly thereafter, Appellant contacted Alvera Maduro (hereafter “Maduro”), a resident of Tortola whom Appellant had known for twenty years, to receive her personal information, which Appellant forwarded to Hamilton for input into the voucher system. Whenever a check from LSS arrived, Appellant would meet Maduro, have Maduro endorse and cash the check, and provide the money to Appellant. The checks issued in Maduro’s name listed a mailing address in St. Thomas, which was a post office box registered to Appellant. When Maduro asked Appellant if this arrangement was legal, Appellant informed Maduro that she needed to use Maduro’s name in order to receive funds for utilities and other expenses for low income households.

After a whistleblower informed the Department of Justice of Hamilton’s activities, Appellant was interviewed but initially not arrested. Hamilton, Delma, and Appellant were subsequently arrested, with Appellant being advised of her rights before the Superior Court on October 25, 2006, and arraigned on November 2, 2006. Hamilton and Delma both entered into plea agreements in April, 2007, and agreed to cooperate with the Department of Justice’s investigation. The second amended information the People of the Virgin Islands (hereafter “People”) filed against Appellant charged her with eight counts of aiding and abetting embezzlement or falsification of public accounts in violation of title 14, section 1662(7), 11(a) of the Virgin Islands Code, conspiracy in violation of title 14, section 551(1), and aiding and abetting the filing or recording forged instruments in violation of title 14, sections 795, 11(a).

Appellant was tried on June 13 and 14, 2007. The trial court granted Appellant’s motion for acquittal as to the tenth count of filing or recording forged instruments. However, the jury found Appellant guilty of the remaining nine counts. On July 6, 2007, the trial court sentenced Appellant to three years of incarceration — eighteen months suspended with respect to the eight embezzlement counts — with all sentences to run concurrently. Appellant was also fined and ordered to pay restitution and court costs. Appellant filed her notice of appeal on July 16, 2007.

II. DISCUSSION

A. Jurisdiction and Standard of Review

“The Supreme Court shall have jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law.” V.I. Code Ann. tit. 4 § 32(a). Because Appellant was sentenced on July 6, 2007 and filed her notice of appeal on July 16, 2007, the notice of appeal was timely filed. See V.I.S. Ct. R. 5(b)(1).

“When appellants challenge the sufficiency of the evidence presented at trial, it is well established that, in a review following conviction, all issues of credibility within the province of the jury must be viewed in the light most favorable to the government.” Latalladi v. People, 51 V.I. 137, (V.I. 2009) (quoting United States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990)). “The appellate court ‘must affirm the convictions if a rational trier of fact could have found the defendants guilty beyond a reasonable doubt and the convictions are supported by substantial evidence.’ ” Id. (quoting Gonzalez, 918 F.2d at 1132). However, “[t]his evidence ‘does not need to be inconsistent with every conclusion save that of guilt’ in order to sustain the verdict.” Id. (quoting United States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957)). Thus, “[a]n appellant who seeks to overturn a conviction on insufficiency of the evidence grounds bears ‘a very heavy burden.’ ” Id. (quoting United States v. Losada, 614 F.2d 167, 173 (2d Cir. 1982)).

B. The Evidence Was Sufficient to Convict Appellant on All Counts of Embezzlement

Appellant first challenges the sufficiency of the evidence used to convict her as a principal on eight counts of embezzlement as an aider and abettor. “To be convicted as a principal for aiding and abetting in the commission of a crime, the government must prove two elements: (1) that the substantive crime was committed, and (2) that the defendant knew of the crime and attempted to facilitate it.” Gov’t of the V.I. v. Peters, 121 F. Supp. 2d 825, 828 (D.V.I. App. Div. 1998). This requires that

an individual have a “purposive attitude” to see the venture succeed and must participate in the criminal endeavor at least to the point of encouraging the perpetrator and “participate in it as something that he wishes to bring about.. . .” In determining whether a defendant has associated himself with and participated in a criminal undertaking, care must be taken that speculation is not permitted to substitute for evidence.

Gov’t of the V.I. v. Navarro, 11 V.I. 542, 549, 513 F.2d 11, 14-15 (3d Cir. 1975) (citations omitted). “Liability as an aider and abettor may arise from affirmative participation such as words or actions which encouraged, induced or helped the perpetration of the criminal enterprise.” Peters, 121 F. Supp. 2d at 828-29.

On appeal, Appellant does not dispute that Hamilton, et al., committed the substantive offenses of embezzlement, but only argues that the People did not prove beyond a reasonable doubt that Appellant intended to facilitate or otherwise induce these crimes because “[t]here is no evidence that [Appellant] knew anything of the matters instigated by Ms. Hamilton. . . .” (Appellant’s Br. at 8.) The record, however, contains sufficient evidence that, when viewed in the light most favorable to the People, would establish that Appellant knew of the embezzlement and attempted to facilitate it. At trial, Hamilton testified that she falsified vouchers and paperwork by “preparing] vouchers for children for a particular provider . . . who did not actually watch the children” in order to “obtain money.” (App. at 101-03; Trial Tr., vol. 1, 113-15, June 13, 2007.) Hamilton further testified that she obtained most of the names of these fictitious providers from Delma. (App. at 101-02; Trial Tr., vol. 1, 113-14, June 13, 2007.) Hamilton then stated that Delma told her to prepare vouchers and documents in Maduro’s name, and that once the checks were issued “[t]hey were supposed to be given to [Appellant], and then [Appellant] would give them to [Maduro.]” (App. at 111-12, Trial Tr., vol. 1, 123-24, June 13, 2007.) Hamilton further elaborated that the purpose of preparing these fraudulent vouchers and documents in Maduro’s name was “to ... get [Appellant] money.” (App. at 113-15, Trial Tr. vol. 1, 125-27, June 13, 2007.) Hamilton further stated on direct examination that Appellant had received the fraudulent checks from Delma, that it was Appellant’s role to then give the checks to Maduro, and that Maduro would then endorse and cash the checks and “[g]ive the money to [Appellant.]” (App. at 117-118, Trial Tr. vol. 1,129-30, June 13, 2007.) Hamilton concluded by stating that the address — P.O. Box 502681 — and phone number — 715-0152 — listed on Maduro’s fraudulent provider agreement, which was introduced into evidence as People’s Exhibit 8, both belonged to the Appellant. (App. at 135, Trial Tr. vol. 1, 147, June 13, 2007.) The People also entered the fraudulent vouchers in Maduro’s name into evidence, as well as the four checks made out to Maduro, with Hamilton testifying that the proceeds of those checks were expected to go to Appellant. (App. at 139-152, Trail Tr. vol. 1, 151-164, June 13, 2007.)

Delma also testified at trial. During direct examination, Delma stated that the plan was to give the proceeds of the checks entered in Maduro’s name to Appellant because she was having financial problems. (App. at 242-43, Trial Tr. vol. 1, 222-223, June 13, 2007.) Delma further testified that Appellant provided her with Maduro’s name, and that Delma provided those checks to Appellant once she obtained possession of them. (App. at 245, Trial Tr. vol. 1, 225, June 13, 2007.) On re-direct examination, Delma also stated that Appellant never objected to taking the checks made out to Maduro. (App. at 247-48, Trial Tr. vol. 1, 227-28, June 13, 2007.)

The People also called Maduro to testify at Appellant’s trial. Maduro stated that the Appellant had asked her if she could use her name to get the checks at issue, and that “she explained it’s like some kind of fund that helps mothers who are not making enough money. . . .” and that she said “it’s not anything illegal.” (App. at 256, Trial Tr. vol. 1, 238, June 13, 2007.) Maduro further testified that Appellant called her when the checks arrived in her P.O. Box, at which point she would travel to St. Thomas in order to cash the checks for Appellant, who would drive her to the bank. (App. at 257-71, Trial Tr. vol. 1, 239-53, June 13, 2007.) Maduro also stated that after the Department of Justice investigation started and Hamilton was terminated from her position, Appellant called her to inform her that the checks would no longer arrive and to advise her not to speak to the Department of Justice’s investigators. (App. at 278-281, Trial Tr. vol. 1, 260-63, June 13, 2007.)

Although Appellant’s testimony conflicted with the testimony of these other witnesses,² this evidence, when viewed in the light most favorable to the People, clearly proved beyond a reasonable doubt that Appellant knew that the crime of embezzlement had been taking place and had taken steps to facilitate the crime. Accordingly, the evidence was sufficient to convict Appellant as an aider and abettor to embezzlement.

C. The Evidence Was Sufficient to Convict Appellant of Conspiracy

Appellant also challenges the sufficiency of the evidence used to convict her of conspiracy under title 14, section 551(1) of the Virgin Islands Code. Pursuant to section 552, the essential elements for a section 551 conspiracy are an agreement and an overt act done in furtherance of the conspiracy. See Bigby v. Gov’t of the V.I., 125 F. Supp. 2d 709, 712 (D.V.I. App. Div. 2000) (citing 14 V.I.C. §§ 551-52). “The elements of a conspiracy may be proven entirely by circumstantial evidence. . . .” United States v. Mark, No. 2005-76, 2007 U.S. Dist. LEXIS 59190, *5 (D.V.I. 2007) (citing United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)). This circumstantial evidence, however, must be “sufficient to create a ‘reasonable and logical inference[] that the activities of the participants . . . could not have been carried on except as the result of a preconceived scheme or common understanding.’ ” Id. (quoting United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)).

Appellant primarily argues that there is insufficient evidence that she knowingly participated in a conspiracy with Hamilton and Delma.³ However, as discussed in the prior section, the People called Hamilton, Delma, and Maduro as witnesses at trial, all of whom testified to Appellant’s actions and her role in the conspiracy. Notably, Delma testified that she had received Maduro’s name from Appellant and that she gave Appellant the checks bearing Maduro’s name once they were issued. Delma and Hamilton had also testified that they did not know Maduro, with Hamilton stating that Appellant had provided her with Maduro’s personal information and Maduro confirming that she had given this information to Appellant. Likewise, Maduro testified that she received a phone call from Appellant every time a check arrived and that Appellant would drive her to the bank in order for her to cash the checks and provide Appellant with the proceeds. Furthermore, Appellant confirmed that the P.O. Box listed on Maduro’s voucher was her own and admitted that she had taken Maduro to the bank to cash checks. (App. at 336-51, Trial Tr. vol. 2, 62-77, June 14, 2007.) This evidence, when read in the light most favorable to the People, is clearly sufficient to establish both an overt act and that Appellant had entered into an agreement or other understanding with Hamilton, Delma, and Maduro. Accordingly, the evidence is sufficient to sustain Appellant’s conviction for conspiracy to commit embezzlement.

D. The Trial Court’s Jury Instructions Do Not Constitute Plain Error

Although Appellant raised the sufficiency of the evidence as the sole issue on appeal, the dissent argues that this Court should sua sponte overturn Appellant’s convictions on counts five through eight of the information on the basis that the trial court purportedly committed plain error in issuing jury instructions that omitted a required element of the embezzlement offense. Specifically, the trial court instructed the jury that the People had to prove, beyond a reasonable doubt, that Appellant aided and abetted Hamilton in “fraudulently generating] a check payable to Alvera Maduro for child care services not rendered,” (App. at 441, Trial Tr. vol. 2, 249, June 14, 2007), even though the statute codifying the substantive offense of embezzlement under which Appellant was charged as an aider and abettor does not mention fraud, but requires that the public monies be used “for any purpose not authorized by law.” 14 Y.I.C. § 1662(3). This Court emphasizes that trial judges should carefully craft jury instructions that track the statutory language of the charged offense rather than rely on the language employed by the prosecution in the charging document. However, we hold that under the facts of this case the embezzlement instruction given by the trial court do not rise to the level of plain error but, at worst, constituted harmless error.

Pursuant to Federal Rule of Criminal Procedure 30(d),⁴ the failure to object to a jury instruction before the trial judge “precludes appellate review, except as permitted under Rule 52(b).” Under Rule 52(b), “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Fed R. Crim. P. 52(b). Thus, “before an appellate court can correct an error not raised at trial, there must be (1) ‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s] substantial rights.’ ” Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 1549, 137 L. Ed. 2d 718 (1997) (quoting United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d 508 (1993)). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at 467 (citations and punctuation omitted).⁵

The dissent correctly acknowledges that, “although it is not a per se rule, the omission of an essential element of an offense in a jury instruction ordinarily constitutes plain error.” (Dissenting Op. at 12 (quoting United States v. Dobson, 419 F.3d 231, 240 (3d Cir. 2005).) However, the Supreme Court of the United States — which was confronted with a scenario similar to the instant matter in Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) — has expressly recognized an exception to this general principle that is applicable to this case. In Neder, the trial court “instructed the jury that, to convict on the tax offenses, it ‘need not consider’ the materiality of any false statements ‘even though that language is used in the indictment’ ” because “[t]he question of materiality, the court instructed, ‘is not a question for the jury to decide.’ ” Id. at 6. Unlike Appellant in this case, however, Neder objected to this instruction. Id. On appeal, the United States Court of Appeals for the Eleventh Circuit held that the trial court erred in its instructions because materiality was an element of the charged offenses, but nevertheless affirmed the conviction because “ ‘materiality was not in dispute’ and thus the error ‘did not contribute to the verdict obtained.’ ” Id. at 6-7. The Supreme Court affirmed:

Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Our decision in Johnson v. United States, supra, is instructive. Johnson was a perjury prosecution in which, as here, the element of materiality was decided by the judge rather than submitted to the jury. The defendant failed to object at trial, and we thus reviewed her claim for plain error. Although reserving the question whether the omission of an element ipso facto affects substantial rights, we concluded that the error did not warrant correction in light of the overwhelming and uncontroverted evidence supporting materiality. Based on this evidence, we explained, the error did not seriously affect the fairness, integrity or public reputation of judicial proceedings.

That conclusion cuts against the argument that the omission of an element will always render a trial unfair. In fact, as this case shows, quite the opposite is true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder’s defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder’s trial “fundamentally unfair,” as that term is used in our cases.

Id. at 8-9 (internal citations, punctuation marks, and quotations omitted). The Court then held that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” Id. at 17. Applying this standard, Neder was not entitled to have his convictions overturned because “the record contained] no evidence that could rationally lead to a contrary finding with respect to the omitted element” and thus “the District Court’s failure to submit the element of materiality to the jury with respect to the tax charges was harmless error.” Id. at 19-20.⁶ See also Gov’t of the V.I. v. Venzen, 7 V.I. 488, 490, 424 F.2d 521, (3d Cir. 1970) (holding that trial judge’s failure to instruct jury, in forgery prosecution, on required element that checks actually be forged did not constitute plain error because jury could not have convicted defendant based on the instructed elements of forgery without also concluding that checks were forged); cf. United States v. Velez-Vasquez, 116 F.3d 58, 62 (2d Cir. 1997), cert. den., 522 U.S. 926, 118 S. Ct. 324, 139 L. Ed. 2d 251 (1997) (“At least absent objection, there is no per se rule requiring reversal for failure to include the presumption [of innocence] in the final instructions to the jury without consideration of how that failure affected the trial.”).

Here, the trial court’s jury instruction, even if erroneous, did not impact Appellant’s substantial rights. Significantly, as in Neder, Appellant never argued at trial or on appeal that Hamilton — who had pled guilty to embezzlement — did not commit the substantive offense and, accordingly, never disputed that Hamilton’s actions were not authorized by law. Rather, Appellant’s trial strategy consisted of conceding that Hamilton committed embezzlement but arguing that Appellant did not take any actions to facilitate those crimes. Notably, Hamilton had testified at trial that she falsified vouchers and paperwork by “prepar[ing] vouchers for children for a particular provider... who did not actually watch the children” in order to “obtain money.” (App. at 101-03; Trial Tr., vol. 1, 113-15, June 13, 2007.)⁷ Moreover, unlike Neder and United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996), the trial court did not completely omit an element from its jury instructions, but replaced the statute’s language with a phrase that held the People to an even higher standard than required by the statute. We note that although not all acts that are “not authorized by law” rise to the level of fraud, a fraud, by its very nature, is not authorized by law. See 14 V.I.C. § 831-52. Consequently, the trial court’s error, if any, benefited the Appellant by effectively instructing the jury that the People were required to prove beyond a reasonable doubt the higher standard of “fraud” rather than the lower standard of “not authorized by law.” See People v. Pierce, 56 Ill. 2d 361, 308 N.E.2d 577, 579 (1974) (holding that an error that favors the defendant is “a species of harmless error . . . and of which he cannot complain.”). Because the “unauthorized by law” element was “uncontested and supported by overwhelming evidence,” and since any arguable error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings because the trial court’s erroneous jury instruction ultimately favored the Appellant, the trial court’s instruction does not constitute plain error and cannot form the basis for reversing Appellant’s convictions.⁸

III. CONCLUSION

Based on the record before this Court, the evidence introduced at Appellant’s trial, when read in the light most favorable to the People, was sufficient to convict Appellant of aiding and abetting embezzlement and for conspiracy to commit embezzlement. Furthermore, the trial court’s jury instructions with respect to counts five through eight, even if erroneous, do not rise to the level of plain error. Consequently, this Court shall not disturb Appellant’s convictions.

2 See App. at 336-49, Trial Tr. vol. 2, 62-75, June 14, 2007.

3 Appellant, though not expressly making the argument in her brief, implies that multiple conspiracies existed and that the People never proved that she was a member of the same conspiracy involving Twana Hodge, Kendra Vickers, and Sandra Glaseo. (Appellant’s Br. at 13.) However, nothing in the record indicates that the People had charged Appellant as a participant to this larger scheme. Rather, the nature of the witnesses and their testimony indicates that the People only charged Appellant as a member of a single conspiracy, with Hamilton, Delma, and Maduro as her co-conspirators, with the goal of embezzling money from the government for Appellant’s use.

4 The Federal Rules of Criminal Procedure apply to proceedings in the Superior Court of the Virgin Islands to the extent that they are not inconsistent with either the procedural rules promulgated under the Virgin Islands Code or the Rules of the Superior Court. See Phillips v. People, 51 V.I. 258, 273 (V.I. 2009); Super Ct. R. 7.

5 For purposes of this analysis we assume, without deciding, that Appellant did not intentionally waive her objection to the trial court’s jury instructions. See Gov’t of the V.I. v. Rosa, 399 F.3d 283, 290-91 (3d Cir. 2005) (distinguishing between waived and forfeited errors); see also Latalladi, at 144 (holding that errors invited by the appellant cannot form the basis for reversal).

6 The dissent cites Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) for the proposition that Appellant is entitled to a jury determination that she is guilty of every element of the crime charged beyond a reasonable doubt, as well as Waddington v. Sarausad, _ U.S. _, 129 S. Ct. 823, 831, 172 L. Ed. 2d 532 (2009) for the proposition that a jury instruction that relieves the government of its burden of proving every element of the crime beyond a reasonable doubt constitutes constitutional error. However, these cases are easily distinguished from both Neder and the instant case in that the Apprendi, Gaudin, and Waddington defendants disputed the elements that were not properly brought before the jury whereas Neder and Appellant did not contest the omitted elements and conceded them at trial. See United States v. Harrison, 204 F.3d 236, 241-43, 340 U.S. App. D.C. 198 (D.C. Cir. 2000) (explaining that defendant’s stipulation to a necessary element of the crime precludes defendant from challenging the sufficiency of the evidence on appeal based on the government’s failure to introduce evidence proving the stipulated element) (collecting cases).

7 In fact, during closing arguments Appellant’s counsel characterized Hamilton’s testimony as an admission that she “created a scheme in which she... had done vouchers fraudulently.” (App. at 394; Trial Tr., vol. 2, 202, June 13, 2007).

8 The dissent, citing United States v. Alferahin, 433 F.3d 1148 (9th Cir. 2006) and United States v. Baldwin, 987 F.2d 1432 (9th Cir. 1993), states that “[i]n cases where courts have found that the omission of an element of the crime from jury instructions did not affect the defendant’s substantial rights, the courts found that there was a functional equivalent of the elements of that crime in other charges against the defendant in the same trial.” (Dissenting Op. at 15.) However, other courts, such as the United States Supreme Court in Neder, have affirmed such omissions even under the less stringent harmless error standard when the omitted elements were not contested by the defendant at trial and were supported by overwhelming evidence. Furthermore, because a fraud is an action that is not authorized by law, the trial court’s alternate wording, which resulted in requiring the jury to find that the People prove a more demanding element than required by the statute, effectively constituted a fimctional equivalent under Alferahin and Baldwin.

Likewise, the dissent correctly notes that the Third Circuit, in United States v. Wilkinson, 137 F.3d 214 (3d Cir. 1998), found no error where a trial court substitutes its own words for those of a statutory element of a crime. (Dissenting Op. at 17.) However, while the dissent characterizes the Wilkinson court’s substituted element — “false declarations before a grand jury or court” —■ as “synonymous” with the element of the crime in the statute — “perjury generally” — the relationship between these terms is identical to the association between a fraud and an action unauthorized by law, in that a false declaration before a grand jury is a type of perjury just as a fraud is a type of action unauthorized by law. Consequently, the Third Circuit’s decision in Wilkinson provides further support for a finding that the trial court’s substitution of elements did not constitute a plain error.