United States v. John Bad Wound

203 F.3d 1072, 53 Fed. R. Serv. 1233, 2000 U.S. App. LEXIS 2075, 2000 WL 175154
CourtCourt of Appeals for the Eighth Circuit
DecidedFebruary 16, 2000
Docket99-1550
StatusPublished
Cited by30 cases

This text of 203 F.3d 1072 (United States v. John Bad Wound) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. John Bad Wound, 203 F.3d 1072, 53 Fed. R. Serv. 1233, 2000 U.S. App. LEXIS 2075, 2000 WL 175154 (8th Cir. 2000).

Opinions

[1074]*1074WOLLMAN, Chief Judge.

John A. Bad Wound appeals from his conviction for various ' offenses resulting from his participation in á scheme to defraud Oglala Lakota College (the College) through the use of phony office supply companies, and from the resulting sentence imposed by the district court. We affirm Bad Wound’s convictions, vacate his sentence, and remand for resentencing.

I.

The College is a federally funded institution of post-secondary education located on the Pine Ridge Indian Reservation in South Dakota. From 1990 to 1996, Bad Wound was professionally associated with the College in various capacities. In 1990 and 1991, Bad Wound periodically performed financial consulting work for the College, but had no consistent employment relationship with it. This changed in January of 1992, when the College hired Bad Wound to manage its accounting department. ■ He served in this capacity until March of 1995, at which time he was promoted to vice-president of business affairs, a position that he held until his departure from the College in 1996.

At some point during Bad Wound’s association with the College, he became involved in a fraudulent scheme initially hatched in 1991 by Arlynn Knudsen, the College’s vice-president of business affairs from 1991 to 1995. Under this scheme, Knudsen, Bad Wound, and several other individuals, including Margaret Minko-Bad Wound, whom Bad Wound held out to be his wife, formed nine phony supply companies. These companies, which generally conducted no legitimate business and existed as bank accounts only, billed the College for supplies that it never received. The College, acting through Knudsen, issued checks for the non-existent supplies, which were then deposited in the bank accounts of the phony businesses, ultimately for the benefit of the conspirators. From 1991 to 1995, the College paid a total of $2,657,032.06 to the conspirators through the fraudulent companies.

In October 1991, Bad Wound personally created one of the supply companies, Territorial Office Products (Territorial), which engaged in at least some legitimate business with the College through June of 1993. Minko-Bad Wound, at the direction of Bad Wound, created two others, Rapid Office Products (Rapid) and Greenway. These two companies, unlike Territorial, were mere conduits of fraud from their respective formations in September and October of 1992. Overall, Bad Wound and Minko-Bad Wound personally received $174,488.92 in fraudulently obtained funds through their three companies.

In early 1997, Bad Wound and his co-conspirators’ web of deceit unraveled, and they were indicted on numerous violations of federal law. Bad Wound was charged with conspiracy, 18 U.S.C. § 371, theft from an Indian tribal organization, 18 U.S.C. § 1163, theft of federal funds, 18 U.S.C. § 666, transportation of stolen money, 18 U .S.C. § 2314, money laundering, 18 U.S.C; § 1956(a)(1), transacting in property derived from unlawful activity, 18 U.S.C. § 1957, tax evasion, 26 U.S.C. § 7201, and criminal forfeiture, 18 U.S.C. § 982. Bad Wound pleaded not guilty to all counts. Following a four-day trial, the jury returned a verdict of guilty on all counts, and Bad Wound was sentenced to 151 months’ imprisonment and three years of supervised release.

II.

Bad Wound first challenges his conviction, arguing that the district court erred in admitting the testimony of Minko-Bad Wound at trial. Prior to trial, Bad Wound moved to exclude Minko-Bad Wound’s testimony on the basis of the adverse spousal testimony privilege. He also sought to question Minko-Bad Wound out of the jury’s presence regarding her awareness of the privilege and whether she wished to assert it. The court denied both the motion and the request. At trial, Bad Wound renewed his objection, but it was once again denied. Minko-Bad Wound,.,with [1075]*1075apparent reluctance, then offered testimony harmful to Bad Wound’s defense, stating that he was part of the illegal scheme and that she had opened the Rapid and Greenway accounts pursuant to his direction.

We review the district court’s admission of testimony for an abuse of discretion. See United States v. Fregoso, 60 F.3d 1314, 1326 (8th Cir.1995). Because we find that .Minko-Bad Wound waived her testimonial privilege, we affirm the court’s ruling.

Federal courts recognize two distinct marital privileges under Rule 501 of the Federal Rules of Evidence: the marital confidential communication privilege and the adverse spousal testimony privilege. See United States v. Jackson, 939 F.2d 625, 627 (8th Cir.1991). Under the adverse spousal testimony privilege, the privilege at issue in this case, an individual “may be neither compelled to testify nor foreclosed from testifying” against the person to whom he or she is married at the time of trial.1 Trammel v. United States, 445 U.S. 40, 53, 100 S.Ct. 906, 914, 63 L.Ed.2d 186 (1980); see also Jackson, 939 F.2d at 627. The privilege therefore rests with the testifying spouse, who may waive the privilege without the consent of the defendant spouse. See Trammel, 445 U.S. at 53, 100 S.Ct. 906.

Minko-Bad Wound entered into a plea agreement following her indictment for her involvement in the supply company scheme. Under the terms of the agreement, Minko-Bad Wound pleaded guilty to six of the charged counts in return for the dismissal of the remaining counts and her promise to provide “complete and truthful testimony before grand juries, at trial, and at other proceedings as required.”

Bad Wound argues that the agreement lacks the specificity necessary to support a finding of a voluntary waiver of the testimonial privilege. We do not agree. The First Circuit recently suggested that a broadly phrased consent to full discovery contained within a plea agreement might constitute a waiver of the adverse spousal testimony privilege. See United States v. Yerardi, 192 F.3d 14, 18 (1st Cir.1999). This suggestion is consistent with our recognition that a plea agreement that states in general terms the defendant’s obligation to cooperate with the government can constitute a waiver of the defendant’s Fifth Amendment privilege against self-incrimination. See United States v. Lawrence 918 F.2d 68, 72 (8th Cir.1990); see also United States v. Resto,

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Bluebook (online)
203 F.3d 1072, 53 Fed. R. Serv. 1233, 2000 U.S. App. LEXIS 2075, 2000 WL 175154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-john-bad-wound-ca8-2000.