United States Court of Appeals

For the Eighth Circuit

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No. 15-1139

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Donald Earl Dodson

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

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 Submitted: December 18, 2015

 Filed: March 29, 2016

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Before MURPHY, BENTON, and KELLY, Circuit Judges.

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KELLY, Circuit Judge.

After a jury trial, Donald Dodson was convicted of aiding and abetting

embezzlement from an agency receiving federal funds, in violation of 18 U.S.C.

§§ 666 and 2. At sentencing, Dodson objected to receiving a criminal history point
for a previous uncounseled conviction. The district court overruled the objection,

1

but varied downward from the 18 to 24 month advisory Guidelines range and

sentenced Dodson to 6 months’ imprisonment and 2 years of supervised release.

Dodson appeals, renewing his objection to his criminal history calculation and

challenging the sufficiency of the evidence. Having jurisdiction pursuant to 28

U.S.C. § 1291, and finding no error, we affirm. 

I. Background

In August 2012 the United States Department of Housing and Urban

Development Office of Inspector General began an investigation into the Star City,

Arkansas Housing Authority (SCHA) after being informed of allegations of

misappropriation of funds by Libby Dodson, Donald Dodson’s ex-wife. At the

beginning of the investigation, Libby Dodson was the Executive Director of SCHA

and had exclusive signatory authority as the person responsible for payroll

management and oversight, including printing checks and creating invoices. 

Libby Dodson admitted in an interview with investigators that she had been

preparing fraudulent invoices and checks made payable to her mother, Elizabeth

Roberts, and her brother-in-law, Jimmy Dodson, both of whom were occasionally

employed at SCHA. Libby Dodson admitted that the checks made out to her mother

were not in compensation for any work done. Libby Dodson deposited and cashed

the checks made out to Roberts herself, using the money for personal use, such as to

cover her monthly bills. Libby Dodson did so without Roberts’s knowledge or

permission. With regard to Jimmy Dodson, the checks were either for work that was

not performed or for amounts in excess of what his work actually justified. 

The Honorable D. Price Marshall, United States DistrictJudge for the Eastern 1

District of Arkansas.

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Donald Dodson never worked for SCHA. Libby Dodson admitted that she

gave himchecks nonetheless. To effect the scheme, Libby Dodson created fraudulent

work invoices for him in the name of a company called J&D Construction. Donald

Dodson’s checks sometimes bore the name of Donna Ballinger, another SCHA

employee, but Libby Dodson admitted to signing Ballinger’s name without her

knowledge or permission. Ultimately, Donald Dodson received $82,225.42 in checks

from the SCHA, and kept at least $21,307.00, giving the rest to Libby Dodson. 

Donald Dodson does not dispute he did not do any work for SCHA, yet the

evidence indicated he had previously lied and said that he did. For instance, he told

a bank teller who wassuspicious of a check he cashed that he was putting in windows

at SCHA. When interviewed, Donald Dodson told Detective Firmin—one of the

investigators from the Department of Housing—he cashed the checks, but he did not

know about the fraudulent invoices Libby Dodson had created. He also stated that,

for 18 of the 19 checks he cashed, he did work for SCHA, and he described for

Detective Firmin the type of work he had done. He also said he kept some of the

money, but gave much of it to Libby Dodson and to his brother, Jimmy Dodson. 

II. Discussion

Dodson argues there was not enough evidence to support the jury’s finding that

he had knowledge of the theft of federal funds sufficient to make him an aider or

abettor of Libby Dodson’s scheme. As he did at trial, he asserts that Libby Dodson

was the one who created the fraudulent invoices, forged the signatures, and

masterminded the scheme. He points out that no witnesses at trial testified explicitly

that he knew Libby Dodson had committed theft, and argues that the government

simply failed to present sufficient evidence that he knew the checks he cashed

represented stolen funds. “We review the sufficiency of the evidence de novo,

viewing [the] evidence in the light most favorable” to the jury’s verdict, “resolving

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conflicts in the government’s favor, and accepting all reasonable inferences that

support the verdict.” United States v. Brooks, 715 F.3d 1069, 1080–81 (8th Cir.

2013) (quoting United States v. Miller, 698 F.3d 699, 702 (8th Cir. 2012)). “[W]e

will reverse only if no reasonable jury could have found the defendant guilty beyond

a reasonable doubt.” Id. (alteration in original) (quoting United States v. Espinosa,

585 F.3d 418, 423 (8th Cir. 2009)).

As the district court instructed the jury, in order to be found guilty of aiding

abetting the charged theft, Donald Dodson had to “have known the theft concerning

a program receiving Federal funds was being committed or going to be committed.”

See 8th Cir. Model Crim. Jury Instr. § 5.01 (2014). The government may have lacked

direct evidence that Dodson knew of the theft, but the jury heard sufficient evidence

to reach the conclusion, beyond a reasonable doubt, that he did. See United States

v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994) (“Because knowledge in the mind of

another is a subjective thing not always capable of proof by positive or direct

evidence, circumstantial evidence may be relied upon in determining whether the

requisite mental condition existed.”) (internal quotations and alterations omitted).

Dodson cashed checks for work he knew he did not do (and from an organization he

had never worked for), lied to a bank teller who asked him what he did for the SCHA,

lied to an investigator about doing the work—going into detail about the work he

supposedly did—and kept a significant amount of the money. We conclude from

these facts a reasonable jury could have found beyond a reasonable doubt Donald

Dodson had knowledge of and was involved in Libby Dodson’s theft of funds from

the Housing Authority. 

Donald Dodson also alleges that the district court erred in including the one

criminal history point he was assessed for a prior conviction for Domestic Battery in

the Third Degree—a misdemeanor for which he did not receive jail time. He argues

that because he was both uncounseled and not advised of his right to counsel for the

prior conviction, it should not count for purposes of calculating his criminal history

score. 

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“The records show that [Dodson] was convicted of the misdemeanor offense[],

and our cases make clear that once the government carries its initial burden of

proving the fact of conviction, it is the defendant’s burden to show his prior

convictions were not constitutionally valid.” United States v. Charles, 389 F.3d 797,

799 (8th Cir. 2004). Dodson attempts to show a constitutional error in his prior

conviction by arguing that he was not advised of his right to counsel and therefore did

not knowingly waive that right during the proceeding that led to his misdemeanor

conviction. The record, however, is silent with regard to any evidence that would

establish his factual claim. The unobjected-to information in Dodson’s presentence

report indicates that Dodson’s “[a]ttorney representation [for the prior offense was]

unknown. The circumstancesfor this case are not available.” Dodson did not present

any evidence, beyond the lack of records, that he was not advised of his right to

counsel. He offered no transcript or additional documentation as to those

proceedings, and he presented no additional evidence by way of testimony or

otherwise to support his factual assertion. See Charles, 389 F.3d at 799–800. 

2

Because Dodson failed to meet his burden of proving the factual basis upon which

his legal argument relies, the district court did not err in calculating his criminal

history score. 

III. Conclusion

We affirm the judgment of the district court. 

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The government also argues that any sentencing calculation error was 2

harmless, because the district court would have imposed the same sentence

regardless. See United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012)

(“[C]omputation error is harmless if the government can show that the procedural

error did not substantially influence the outcome of the sentencing proceeding.”

(quoting United States v. Walker, 555 F.3d 716, 722 (8th Cir. 2009))). Even if

Donald’s prior misdemeanor had not been counted, the district court’s downward

variance was well below the Guidelines range of 15–21 months, and the court noted

that Donald’s advisory range over-represented his minor criminal history. We need

not speculate on what the district court would have done, however, as Donald has not

proven sentencing error. 

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