United States v. Williams

527 F.3d 1235, 2008 WL 2066095
Court of Appeals for the Eleventh Circuit·Decided May 16, 2008·No. 06-15318·Published·Cited by 193 cases

Opinions

WILSON, Circuit Judge:

Alma Williams (“Williams”) appeals her convictions for five counts of wire fraud and one count of theft concerning programs receiving federal funds [hereinafter “federal funds theft”], in violation of 18 U.S.C. §§ 1343 and 666, and the resulting 33-month sentence imposed by the district court. On appeal, Williams argues that her convictions violate the Double Jeopardy Clause. Williams also argues that the evidence at trial was insufficient to support a conviction, and that the district court constructively amended the indictment, improperly admitted evidence, and improperly applied three sentencing adjustments. For the following reasons, we affirm Williams’s convictions, but vacate her sentence and remand this case back to the district court for resentencing consistent with this opinion.

I. BACKGROUND

Williams was the Executive Director and Chief Financial Director of Eastside Training Academy (“ETA”) in Valdosta, Georgia. ETA, a non-profit organization incorporated in the State of Georgia, primarily provides pre-kindergarten child care and infant daycare. Williams’s husband, Bun-nis Williams, was the Chief Executive Officer and President of the Board of Directors of ETA.

In late 2000, Williams agreed to manage two federal programs, the Foster Grandparent Program and the Retired Senior Volunteer Program, under ETA’s sponsorship. To that end, Williams applied for and received federal grants from the Corporation for National and Community Service (“CNCS”). CNCS is an independent federal agency that administers and dispenses federal grant funds to support local programs fostering volunteer and community service activities. CNCS granted funds to ETA for the limited purpose of organizing senior volunteers to engage in community service in schools, hospitals and museums.

During 2001, CNCS wired approximately $320,000 in federal grants to ETA’s account for its management of the Foster Grandparent Program and the Retired Senior Volunteer Program. ETA’s use of the grant funds was limited to the direct costs of managing these programs, including mileage reimbursements and small stipends to low-income senior volunteers, and salaries for a full-time project director, full-time coordinators, and a part-time bookkeeper. CNCS also authorized ETA to spend grant funds on certain administrative overhead costs that CNCS had pre-approved and built into the budgets for each program. Grant rules prohibited service providers such as ETA from using [1239]*1239grant funds to pay for administrative overhead or indirect costs not pre-authorized by CNCS through a separate line-item budget.

As we describe in further detail later in this opinion, ETA spent federal grant money on unauthorized items such as Williams’s salary, checks made payable to Bunnis Williams, general ETA operating expenses, rent and utilities for facilities not being used by the federal grant programs, and plumbing work for one of Williams’s separate rental properties. Despite CNCS restrictions, ETA spent approximately one-third, or $101,000, of grant funds on unauthorized expenditures.

A federal grand jury charged Williams and her husband with seven counts of wire fraud, one count of federal funds theft, and aiding and abetting each other thereto, pursuant to 18 U.S.C. §§ 1343, 666, and 2. At trial, the government showed that Williams had primary authority over ETA finances and that she had direct control over the bookkeepers who managed the federal grant funds. The evidence showed how the bookkeepers, following Williams’s orders, charged unapproved, personal expenditures to the federal grant programs using a percentage-based formula that Williams devised. In support of her good faith defense, Williams testified that she was unaware that her use of the grant funds was improper and that she did not intend to defraud the government. The jury convicted Williams on five counts of-wire fraud and on the federal funds theft count, but it acquitted Bunnis Williams of all charges.

To determine Williams’s advisory guideline sentence, the district court applied four upward adjustments to Williams’s base offense level: (1) a two-level aggravating role adjustment; (2) a two-level abuse of trust adjustment; (3) a two-level obstruction of justice adjustment; and (4) an eight-level adjustment for the amount of loss. After applying these adjustments, the district court sentenced Williams to thirty-three months imprisonment, the bottom of the applicable guidelines range.

II. DISCUSSION

A. Double Jeopardy

Williams first contends that her separate convictions for wire fraud and federal funds theft violate the Double Jeopardy Clause of the Fifth Amendment because the factual basis of her theft conviction is “part and parcel” of the scheme to defraud underlying her conviction for wire fraud. She also asserts that her convictions on multiple counts of wire fraud constitute double jeopardy.

We review claims of constitutional error de novo. United States v. Brown, 364 F.3d 1266, 1268 (11th Cir.2004). Where a defendant fails to assert a double jeopardy claim before the district court, however, she has forfeited that claim. United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir.2007) (en banc). We nonetheless review such forfeited claims under the plain error standard Of Federal Rule of Criminal Procedure 52(b). Lewis, 492 F.3d at 1222. As the Supreme Court explained in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the defendant’s “[mjere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).” Id. at 733, 113 S.Ct. at 1777.

Williams did not raise her double jeopardy arguments to the district court. Although she failed to raise the claims, Williams made no affirmative steps to voluntarily waive them. See Lewis, 492 F.3d at 1221-22 (finding that defendant did not waive, but rather forfeited, double jeopardy claim when raising it for the first time on appeal). Consequently, Williams’s fail[1240]*1240ure to raise these claims did not result in her intentional relinquishment of a known right, and we review these forfeited claims for plain error.

As a threshold matter, “[w]e will correct a plain error when (1) an error has occurred, (2) the error was plain, and (3) the error affected substantial rights.” Lewis, 492 F.3d at 1222. “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if ... the error seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631-32, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation marks omitted) (quoting Johnson v.

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United States v. Williams, 527 F.3d 1235, 2008 WL 2066095 (11th Cir. 2008).

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