REVISED, March 26, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT _______________
No. 96-50384 _______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CLARENCE RAY MIKOLAJCZYK, et al.,
Defendants-Appellants.
_________________________
Appeals from the United States District Court for the Western District of Texas _________________________ March 11, 1998
Before JONES and SMITH, Circuit Judges, and FITZWATER,* District Judge.
JERRY E. SMITH, Circuit Judge:
Appellants, convicted of mail fraud following a jury trial,
raise several issues on appeal. Finding no reversible error, we
affirm. In so doing, we find it necessary to discuss only a few
issues and affirm on the remaining issues without discussion.
I.
Between October 1993 and May 1995, the defendants made several
* District Judge of the Northern District of Texas, sitting by designation. attempts to pass off fraudulent “Certified Money Orders” (CMO's) as
legitimate money orders. The scheme was initiated by Billy Mack
O’Neill and his partners in USA First, an alleged non-profit
organization, who put together packets each containing six CMO's
and information on how to use them. In exchange for the $300 price
of the packet, buyers could write six CMO's, in any amount. Buyers
were asked to provide almost no information upon receiving or using
the CMO's, although most were asked for their name, and some gave
their phone numbers.
The packets contained the following statement: “Warning.
Just like the children’s story about the emperor’s new clothes, do
not mention that your current credit money, the negotiable
instrument, is pretend money. Only speak of the bank’s negotiable
instruments as being pretend money.” It warned that the money
orders would not “work for everyone” and that there was no
“guarantee of a win against thieves and robbers dressed in bankers’
or even judicial clothing.”
The scheme apparently was designed to express dissatisfaction
with the banking system and to obtain cash from buyers of the
CMO's. In addition to the comment about thieves and robbers, the
packet said “In God we trust, in banksters we bust!” and contained
a cartoon about the banking system in which bankers stated, “With
our system, it is easy to rob the people. All we have to do is
lend paper credit and charge interest.”
There is no indication that O’Neill, First USA, or the
fictitious business they created under the name of O.M.B. W.D.
2 McCall ever intended to make payment on any of the CMO's. The
instructions in the packet and on the CMO's required the individual
who received a CMO as payment to send it to W.D. McCall’s post
office box. Upon receiving the CMO, First USA would send out a
fake “Certified Banker’s Cheque” (CBC). W.D. McCall never paid any
of the obligations created by the CMO's.
The indictment named eight individuals: Billy O’Neill (who
initiated the scheme), Michael Kearns, Earl Forrester, Wayne
Slater, Vicki Slater, Patricia Koehler, Oliver Paulson and Clarence
Mikolajczyk. Kearns, Forrester, and Paulson do not appeal their
convictions. Except for the first count, which referred to the
entire scheme of mailing fraudulent CMO's, each count of the
indictment involved a separate incident in which a CMO was used.
Several defendants used CMO's to purchase motor vehicles from
individuals, using CMO's to pay off existing bank loans on those
vehicles; others used the instruments to pay off credit card
balances at various banks.
Appellants allege they were not aware that use of the CMO's
was illegal. They claim they thought the CMO's were a credit-for-
credit exchange. Their claim lacks support in the evidence,
because they never provided financial information similar to that
generally provided to a lending institution upon establishing a
line of credit. Nor did they sign or receive any documentation
about this alleged line of credit. Furthermore, the statements in
the information packet strongly suggested the CMO's were not a
legitimate form of payment.
3 Appellants’ expert testified that these instruments were not
intended to be used to obtain anything of new or current value, and
that attempts to do so “come pretty close to fraud.” He stated
that with instruments like these CMO's, there should be full
disclosure by the user of the fact that the CMO is backed by
private money, so that the recipient can make a determination of
its worth. Yet, none of the appellants disclosed any kind of
credit-for-credit exchange.
II.
A.
Wayne Slater, Vicki Slater, and O’Neill (the “represented
defendants”) argue that they were prejudiced by the actions of
their pro se codefendants, Koehler and Kearns, and did not have the
opportunity for a fair trial. The defendants moved to sever on
numerous occasions, but each request was denied. Their argument is
plausible, but ultimately fails the strict requirements imposed by
abuse-of-discretion review.
The rule that persons indicted together should be tried
together carries great weight where, as here, persons are charged
with committing the same conspiracy. United States v. Archer,
733 F.2d 354, 360 (5th Cir. 1984). Joinder is the rule rather than
the exception, United States v. Chagra, 754 F.2d 1186, 1188 (5th
Cir. 1985), and in fact, the defendants have failed to cite a
single case in which this court reversed a conviction for failure
to sever.
4 The denial of a motion to sever is reviewed only for abuse of
discretion. Zafiro v. United States, 506 U.S. 534, 539 (1993);
United States v. Faulkner, 17 F.3d 745, 758 (5th Cir. 1994).
Reversal is warranted only when the defendant demonstrates that the
denial resulted in compelling prejudice against which the trial
court was unable to afford protection. United States v. Thomas, 12
F.3d 1350, 1363 (5th Cir. 1994).
B.
The pro se defendants, Kearns and Koehler, argued that their
conduct was not illegal. They asserted that the CBC's were “backed
by liens,” and they offered an expert witness who testified that
this was an appropriate form of negotiable instrument. This line
of defense differed substantially from that offered by the
represented defendants, all of whom conceded that the CMO's were
worthless instruments, but argued that they believed them to be
legal tender.
In addition to their technical argument about the legality of
CMO's, Kearns and Koehler attempted to justify their conduct by
attacking the monetary system. Koehler complained in her opening
statement that “I asked the United States Attorney to explain what
he meant by money, and he wouldn’t explain it to me.” Kearns
continued this line of defense when cross-examining Postal
Inspector Butler, taking issue with Butler’s characterization of
the CMO's as “fraudulent” and asking questions about the definition
of money and the value of federal reserve notes. Defendants’
5 attorneys observed that the jury found this line of defense
irrelevant and annoying; one juror allegedly rolled her eyes every
time Kearns spoke.
In addition, the pro se defendants may have alienated the jury
through their hostile attitudes at trial. Kearns badgered Butler
while he was on the stand, complaining that “it doesn’t appear
[Butler] knows too much,” and “I’m asking you a simple question
about your employer [(whether the Postal Service is a corporation)]
and you don’t even know the status.” Kearns also accused Norman
Summers, a former employee of USA First, of testifying “out of a
vindictive heart.” He asked Linda Hultgren, an employee of Capital
One Financial Corporation, whether she was “looking to [the
prosecutor] for him to answer the question for you.” Objections to
the argumentative nature of Kearns’ questioning were made and
sustained frequently during the part of the trial he attended.
Kearns did not limit his attacks to witnesses. He also
interrupted the prosecutor’s direct examination to tell the judge
that a particular juror was asleep, an assertion the juror denied.
C.
After six days of disruptive trial tactics, Kearns
disappeared. Given his active participation in the early days of
the trial, his absence was conspicuous. He was tried and convicted
in absentia.
The Sixth Circuit has held that severance is particularly
appropriate when the evidence against an absent codefendant is much
6 greater than that against a present defendant. See United States
v. Davidson, 936 F.2d 856, 861 (6th Cir. 1991). We need not
consider adopting that reasoning, however, because Davidson is
distinguishable. There, the defendant tried in absentia was
charged with ten counts, while his present codefendant was charged
with only one. The court believed that Davidson was prejudiced by
the introduction of an overwhelming amount of uncontested
incriminating evidence, even if that flood of evidence pertained to
his codefendant and not to himself.
Here, in contrast, while Kearns was named in more counts than
were the other defendants, and the evidence of his guilt was
slightly stronger, plenty of factual and legal issues remained for
the other defendants to dispute. The jury was not overwhelmed with
uncontested, incriminating evidence, but instead witnessed a normal
trial in which the prosecutor’s case received no rebuttal with
respect to one of several nearly equivalent defendants. Finally,
the district court gave an instruction designed to neutralize any
negative effects of Kearns’ departure on the jury’s view of the
case:
Members of the jury, Michael Kearns is not with us. It appears that he has decided to voluntarily not continue to participate in the proceeding. So, I have decided that we will go forward with the trial without Mr. Kearns being here. The trial will continue as to all eight accused. The fact that Mr. Kearns has decided not to be present and participate any further should not be interpreted by you, in any way, as to effect [sic] or to prejudice any of the other people on trial. It should not affect you at all, in any way.
To the extent that Kearns’s departure had an effect on the jury,
this instruction was sufficient to protect the defendants from
7 compelling prejudice.
D.
Vicki Slater argues that the pro se defendants introduced
evidence harmful to her that would not have been admissible by the
prosecution. Specifically, Kearns invited the introduction of
evidence about Slater’s ownership of a gun by asking a Bank One
representative why she did not have Slater’s car repossessed. The
witness replied that she “did not send a repo agent” because she
knew that Slater owned guns. Slater’s counsel's objection to this
testimony was overruled.
Counsel then asked questions to demonstrate that Slater was a
former police officer, that she hunted, and that gun ownership was
not illegal. These questions presumably contradicted the
implication that she was a dangerous and violent person and that
the bank agent was afraid of her. The prosecution then asked the
witness if she didn’t send a repo agent because she didn’t want to
take a risk that the guns “might be anything more than . . . for
hunting.” Because evidence of Slater’s gun ownership was already
in the record, the introduction of this evidence did not rise to
the level of compelling prejudice. See United States v. Daly, 756
F.2d 1076, 1081 (5th Cir. 1985).
E.
In Daly, this circuit found no compelling prejudice arising
out of a codefendant’s pro se representation. As in this case,
8 most of the pro se defendant’s blunders were made out of the jury's
presence.1 756 F.2d at 1080. Furthermore, the Daly court pointed
out that in a long, complex trial, considerations of judicial
economy require that defendants involved in related criminal
conduct be tried together. 756 F.2d at 1080. The facts of the
instant trial were complex, and several of the counts involved acts
by both represented and unrepresented codefendants. Conducting two
trials would have caused significant inconvenience to witnesses and
duplicative use of court resources.
Judicial economy aside, the refusal to sever was not an abuse
of discretion because the court used special instructions to
ameliorate any prejudice. See Daly, 756 F.2d at 1081. The court
instructed the jury to compartmentalize the evidence against each
defendant on each count:
A separate crime is charged against one or more of the defendants in each count of the indictment. Each count, and the evidence pertaining to it, should be considered separately. Also, the case of each of the defendants should be considered separately and individually. The fact that you may find one or more of the accused guilty or not guilty of any of the crimes should not control your verdict as to any other crime or any other defendant. You must give separate consideration to the evidence as to each defendant.
During voir dire and trial, the court gave additional instructions
to consider the counts and defendants separately. Under the
1 For instance, the pro se defendants proclaimed themselves sovereign citizens primarily at pre-trial motions. Forrester appeared in court and stated, “I’m a man on the land. I’m a sovereign citizen. And, further I say not.” Similarly, Paulson demanded to see the prosecutor’s identification because Paulson had been required to attend an “identity hearing.” Even if the jury had heard these statements, however, a neutralizing instruction sufficiently would have ameliorated any prejudice.
9 circumstances, the court did not abuse its discretion in refusing
to sever the trials.
III.
Vicki Slater is the only defendant who presents a colorable
case on sufficiency of the evidence, although her argument is more
accurately characterized as claiming a constructive amendment of
the indictment. She was indicted on only one substantive count,
which involved a CMO she sent to Bank One.
The indictment, however, does not list Bank One as one of the
several financial institutions defrauded by the conspiracy and by
the specific acts. The facts describing Slater’s substantive count
state that the CMO was mailed to Bank One, and the acts alleged in
the conspiracy count accurately describe her conduct, so there is
no question of notice. Slater argues that notice is irrelevant
because there was a constructive amendment of the grand jury
indictment, and the amendment invalidates her conviction despite
the full description of her conduct.
The government characterizes the claim as one of fatal
variance between indictment and proof. Slater cannot succeed on
this theory, because a defendant cannot receive relief for a
variance unless it is material and prejudices his substantial
rights. See, e.g., United States v. Morgan, 117 F.3d 849, 858 (5th
Cir.), cert. denied, 118 S. Ct. 454 (1997). As long as the
defendant receives notice and is not subject to a risk of double
jeopardy, his substantial rights are not affected. See, e.g.,
10 United States v. Berger, 295 U.S. 78, 83 (1935). Because the
conspiracy count accurately described the conduct, and the
substantive count stated the date and the fact that Bank One was
involved, there was no problem with notice, and double jeopardy
could not occur.
Slater urges us to apply the more stringent rule for
constructive amendments: Where a constructive amendment has
occurred, the conviction cannot stand; there is no prejudice
requirement. See, e.g., United States v. Salinas, 654 F.2d 319
(5th Cir. 1981), overruled on other grounds by United States v.
Adamson, 700 F.2d 953 (5th Cir. 1983) (en banc). This argument
fails, too, because a constructive amendment cannot occur where the
indictment completely and accurately describes the conduct, so that
the grand jury is not misled about the basis for the indictment.
This criterion distinguishes the cases Slater cites from her
own. In Salinas, the case most closely analogous, the defendant
was charged with conspiring to defraud a bank. The indictment
alleged that he conspired with the bank's president. The evidence
showed, however, that the defendant had conspired with the
executive vice president. We reversed, holding as follows:
The mistake in the particular name of the officer involved is not like a variance in a date or place. The appellant was not formally charged with theft. The indictment said in effect that Woodul stole and that the appellant helped. Once it is shown that the named principal did not steal, it begins to look like the appellant was convicted of a crime different from that of which he was accused.
Salinas, 654 F.2d at 324-25.
11 In Salinas, the indictment did not even mention the name of
the real principal. Therefore, the grand jury easily could have
been misled as to the crime with which it charged the defendant.
Here, in contrast, the indictment makes plain what Slater did, and
the grand jury probably did not even notice the omission of Bank
One from the list of victims.
Other cases applying the doctrine of constructive amendment
detract further from Slater’s argument. For instance, she cites
United States v. Mucciante, 21 F.3d 1228, 1235 (2d Cir. 1994), in
which the defendant alleged that the government charged him as a
principal, but instructed the jury to find him liable as an aider
and abettor. Not only would such a change be easily
distinguishable from this case, but Mucciante’s claim was rejected.
Slater also cites United States v. Doucet, 994 F.2d 169, 173 (5th
Cir. 1993), in which we reversed on the ground that the prosecution
had obtained an indictment for possession of an unregistered
machine gun, but finally asked the jury to convict for possession
of individual parts that could be assembled into a shotgun. This
allowed the defendant to be convicted on grounds broader than those
stated in the indictment.
Such a situation raises the possibility that both the grand
jury and the defense were misled about the material elements of the
crime, so that the grand jury might have mistakenly indicted, and
the defense was unable to prepare an effective defense. Here, in
contrast, the indictment contained a drafting error that confused
and prejudiced no one. While Slater is correct that the
12 constructive amendment rule does not require a showing of
prejudice, prejudice is inherent in the concept of constructive
amendment: If the amendment contained an accurate description of
the crime, and that crime was prosecuted at trial, there is no
constructive amendment.
IV.
Vicki Slater also challenges the admission of allegedly
irrelevant evidence of past acts. Because this is a criminal case,
evidentiary rulings are reviewed under a heightened abuse of
discretion standard. United States v. Carrillo, 981 F.2d 772, 774
(5th Cir. 1993). Evidence in criminal trials must be “strictly
relevant to the particular offense charged.” United States v.
Hays, 872 F.2d 582, 587 (5th Cir. 1989). We must take into account
“what effect the error had or reasonably may be taken to have had
upon the jury’s decision.” Hays, 872 F.2d at 587 (citing Kotteakos
v. United States, 328 U.S. 750, 764 (1946)).
All of the evidence whose admissibility is contested was
evidence of past acts used to cross-examine the defendant.
Importantly, FED. R. EVID. 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .
A defendant makes his character an issue, losing the protection of
rule 404(b), when he testifies. United States v. Tomblin, 46 F.3d
1369, 1388 (5th Cir. 1995). This does not give the prosecution
13 free rein, but allows it to cross-examine him with respect to
“instances of misconduct that are ‘clearly probative of
truthfulness or untruthfulness,’ such as perjury, fraud, swindling,
forgery, bribery, and embezzlement.” Id. at 1389 (citing United
States v. Leake, 642 F.2d 715, 718 (4th Cir. 1981)).
Slater argues that the court erred in admitting evidence that
she had filed a public notice “rescinding” her tax returns.
Objections to the introduction of this testimony were initially
sustained, but when Slater took the stand to testify to her own
good faith, the judge allowed the prosecution to cross-examine her
about it. The government defends this decision on the ground that
the CMO's were arguably also a form of “protest” activity, so the
tax protest evidence was relevant to her “state of mindSSknowledge,
intent and motive.”
Slater’s past protest activity does not fall within the
category of past acts that may be used to impugn a defendant’s
credibility on cross-examination. It involved no fraud and no
illegal activity, and therefore falls far short of the “clearly
probative of truthfulness or untruthfulness” test we apply. The
government does not allege that the evidence directly contradicted
an issue raised in Slater's direct examination, and the evidence
cannot do so, because Slater's past lawful protest has, at best, a
tenuous relationship to her good faith in using the CMO's.
The evidence does not actually relate to Slater’s state of
mind at the time she allegedly committed the crime, either. It is
not relevant to her “knowledge” whether the CMO's were valid. The
14 government argues that it is relevant to her motive and intent,
because it suggests she had a motive or intent to protest the
monetary system. The past protest has only slight relevance on
this issue.
Slater emphasizes the fact that her past protest was lawful,
while the CMO scheme was unlawful. Furthermore, however, the
government offered no evidence suggesting that Slater had a protest
motive when she used the CMO's. The only evidence on this was the
statements in the CMO packets, which Slater did not prepare.
The only possible effect of the past protest evidence would be
to suggest a protest motive in the use of the CMO's that the
evidence did not already put at issue. Slater claims that labeling
her a “protester” unfairly associated her with Kearns and Koehler,
self-proclaimed “sovereigns” who would be viewed by the jury as
terrorist lunatics. While this argument is farfetched, her
conclusion that the evidence might have had a “guilt by
association” effect, suggesting that she had a motive that could
otherwise have been attributed only to the instigators of the
scheme, is plausible.
Nevertheless, we deny Slater’s request for a new trial,
because the error was harmless. See United States v. Polk, 56 F.3d
613, 629 (5th Cir. 1995); United States v. Heller, 625 F.2d 594,
599 (5th Cir. 1980). She did not contest the evidence that she
attempted to pay off her car loan with a CMO, demanded that her
loan balance be brought to zero, and refused to offer legitimate
payment or turn over the car when asked. These are not the actions
15 of an innocent victim. If, as she alleges, Slater thought the
CMO's were valid and had no intent to defraud anyone, she would not
have attempted to avoid her loan obligations once she discovered
that the CMO's were worthless.
Furthermore, the prejudicial effect of the evidence was
slight. While it did suggest a protest motive not convincingly
demonstrated by the evidence, it was not the kind of inflammatory
evidence that could get an overly emotional response from the
jurors. Nor was it similar enough to the crime charged that the
jury was likely to conclude, improperly, that the commission of the
prior act implied commission of the current act. Under these
circumstances, we are “sure, after viewing the entire record, that
the error did not influence the jury or had a very slight effect on
its verdict.” Heller, 625 F.2d at 599 (citing United States v.
Underwood, 588 F.2d 1073, 1076 (5th Cir. 1979)).
V.
Koehler contests the amount of restitution to which she was
sentenced. She claims she should not have to pay $27,192.51 to the
Ford Motor Credit Company, because the amount includes compensation
for consequential damages not properly recoverable under the Victim
and Witness Protection Act (VWPA). Specifically, Koehler contests
restitution for the legal expenses incurred by Ford to defend a
lawsuit that Kearns had brought after he tried to pay off a car
loan with a CMO and Ford, unable to obtain payment on the CMO,
repossessed the vehicle. Ford incurred over $20,000 in legal fees
16 defending the suit.
The VWPA does not generally authorize recovery of legal fees
expended to recover stolen property. See United States v.
Mitchell, 876 F.2d 1178, 1184 (1989). This limitation is derived
from 18 U.S.C. § 3663 (1985), the relevant portion of which reads
as follows:
(b) The order may require that such defendantSS
(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offenseSS
(A) return the property to the owner of the property or someone designated by the owner, or
(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater ofSS
(i) the value of the property on the date of the damage, loss, or destruction, or
(ii) the value of the property on the date of the sentencing,
less the value (as of the date the property is returned) of any part of the property that is returned. . . .
Because this is a case involving “loss” of property “of a
victim of the offense,” the statute authorizes the return of the
property or of its value. In Mitchell, we held that the plain
language of the statute did not authorize the “cost of employing
counsel to recover from an insurance company.” 876 F.2d at 1184.
Ford’s costs of recovering the Explorer, such as the wages of its
repo man or, hypothetically, the cost of a lawsuit to recover the
car, would not be recoverable by analogy to the situation in
Mitchell; such costs are merely consequential damages that would
17 not be recoverable as damages in a lawsuit and, similarly, are not
recoverable as restitution.
The legal costs incurred by Ford are not analogous to those
incurred by the victims in Mitchell or to the typical costs of a
lawsuit to recover property. In Hughey v. United States, 495 U.S.
411, 412 (1990), the Court held, in interpreting § 3663, that
restitution can be awarded only for “the loss caused by the
specific offense that is the basis of the conviction.” Here,
Kearns's action of bringing a lawsuit against Ford was part of the
scheme to defraud, the offense that is the basis of Koehler’s
conspiracy conviction.2 Ford’s costs of defending the lawsuit were
a direct and mandatory result of Kearns's act in furtherance of the
conspiracy, not a voluntary action taken by Ford to recover
property or damages from Kearns, Koehler, or a third party.
VI.
Mikolajczyk alleges that his counsel provided ineffective
assistance at trial and on appeal. He did not raise this argument
before the district court. We generally do not review claims of
ineffective assistance that have not been raised before the
district court, because there has been no opportunity to develop
and include in the record evidence bearing on the merits of the
allegation. See, e.g., United States v. Foy, 28 F.3d 464, 476 (5th
2 The fact that Kearns, rather than Koehler, brought the suit does not matter, because Koehler can be required to pay restitution for all acts taken in furtherance of the scheme to defraud of which she was convicted. See United States v. Stouffer, 986 F.2d 916, 928 (5th Cir. 1993); United States v. Ismoila, 100 F.3d 380, 398 (5th Cir.), cert. denied, 117 S. Ct. 1858 (1996).
18 Cir. 1994). The typical procedure is to dismiss without prejudice
to a subsequent § 2255 motion. Id. Mikolajczyk’s claim of
ineffective assistance at trial cannot be reviewed, because the
record is not well developed on this issue.
Mikolajczyk also complains of ineffective representation on
appeal, because he was appointed standby counsel, but counsel made
no effort to contact him. For the same reason that we decline to
consider the claim of ineffective assistance at trial, we must
pretermit consideration of this issue too, and allow it to be
raised in a § 2255 motion once the outcome of the appeal is known.
Were we to consider Mikolajczyk’s claim, however, his case
would be weak. This court has held that a defendant’s statutory
right to choose pro se or attorney representation is “disjunctive”;
a defendant has a right to one or the other, but not a combination
of the two. United States v. Daniels, 572 F.2d 535, 540 (5th Cir.
1978). Mikolajczyk was constitutionally guaranteed the right to
represent himself if he so chose, or to receive competent
representation from an attorney, but the availability of standby
counsel to provide a combination of the two was not
constitutionally required. If Mikolajczyk had no right to standby
counsel, it seems unlikely that standby counsel’s failure to assist
could be a violation of his Sixth Amendment rights.3
3 Furthermore, Mikolajczyk complains only that his standby counsel never contacted him. He does not allege that he made any attempt to contact standby counsel, despite the fact that standby counsel exists primarily to help the pro se litigant upon request. “The Court may appoint . . .’standby counsel’ to aid the accused if and when the accused requests help. . . .” Faretta v. California, 95 S. Ct. 2525, 2540 (1975), citing United States v. Dougherty, 473 F.2d 1113, 1124-26 (D.C. Ct. App. 1972). We have no evidence that (continued...)
19 AFFIRMED.
(...continued) Mikolajczyk made such a request or was prevented from making one.