1 Wiley also has filed various motions with this court,

including a motion for bail, a motion to disqualify two Assistant

U.S. Attorneys, a motion for a "Certificate of Reasonable Doubt,"

a motion to vacate the judgment, and a motion to dispose of the

foregoing motions expeditiously. We grant the motion for a

speedy disposition and deny all other motions.

 

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-8067

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EMIL F. WILEY,

Defendant-Appellant.

Appeal from the United States District Court

For the Western District of Texas

(December 3, 1992)

Before POLITZ, Chief Judge, HIGGINBOTHAM and WIENER, Circuit

Judges.

POLITZ, Chief Judge:

Convicted of conspiracy to pass counterfeit Internal Revenue

Service obligations and of the underlying substantive offenses,

Emil F. Wiley appeals. Finding no error, we affirm.1
2

Background

Wiley and Roger Elvick conceived of a scenario in which

various individuals would claim enormous refunds on their tax

returns and execute instruments purporting to be certified IRS

sight drafts against the refunds to Wiley or Elvick, who would

negotiate the counterfeit drafts for legitimate negotiable

instruments. Wiley sent two of these sight drafts to Thomas

Nathan Cox, a business associate in Austin, Texas. The first was

drawn by one Arnold Hilgeford in the amount of $990,000 and arrived

via Federal Express with instructions from Wiley to open a

brokerage account, to buy tax-exempt bonds and not to "use an

attorney or accountant." 

Cox took the draft to Prudential-Bache Securities. Its

suspicions aroused by the multiple endorsements, Prudential-Bache

notified the IRS and declined to accept the draft. The next day

Cox was arrested by the Treasury Division of the IRS. Offering to

cooperate with the government, he tendered a second package from

Wiley containing another draft similar to the first, this one

written by one Marvin E. Arlien to Wiley in the amount of

$1,000,100. 

Working with the government, Cox suggested to Wiley that he

had a high school friend in the brokerage business who was willing

to negotiate the drafts, further suggesting that Wiley fly to

Austin to meet his friend and bring additional drafts. Wiley

agreed. At a meeting at a local hotel, Wiley presented the broker,

in reality an undercover agent, with three additional drafts, one
3

from Hilgeford to Wiley in the amount of $990,000, another from

Arlien in the amount of $4,000 and a third from Elwick to Wiley in

the amount of $1,000,100. Like the other drafts, these were

payable through the IRS. Wiley was promptly arrested. Among his

belongings was a .25 caliber Excam pistol.

Wiley was indicted for passing counterfeit United States

obligations with intent to defraud, 18 U.S.C. § 472, possessing

counterfeit documents with intent to defraud the United States,

18 U.S.C. § 1002, and conspiracy to engage in these offenses,

18 U.S.C. § 371. Because of a previous felony conviction, he was

indicted for felony possession of a firearm, 18 U.S.C. §§ 922(g)(1)

and 924(a). While in jail awaiting trial, Wiley filed a Currency

Transaction Report falsely stating that the magistrate judge who

had handled certain preliminary aspects of his case had engaged in

a $4 million transaction with the undercover agent who had

represented himself as a broker. Wiley also was indicted for this

offense, 18 U.S.C. § 1001. Choosing to represent himself with the

aid of stand-by counsel, Wiley was convicted by a jury on all

counts and sentenced to 78 months' imprisonment. Wiley timely

appealed and proceeds herein pro se.

Analysis

1. Sufficiency of the indictment.

Wiley raises the instant challenges to the sufficiency of the

indictment for the first time on appeal. He contends that the
 

2 United States v. Chaney, 964 F.2d 437 (5th Cir. 1992).

 

3 Chaney, 964 F.2d at 446.

 

4 We are to construe the indictment liberally because

Wiley did not raise these objections below. Chaney. However the

indictment is read, it passes muster.

4

conspiracy count charges several different crimes, that it contains

language suggesting that the Internal Revenue Service, the Treasury

Department, and the United States are three separate entities, and

that the felony firearm count also is duplicitous. None of these

contentions has merit.

An indictment is sufficient if it (1) contains the elements of

the offense charged, (2) fairly informs a defendant of the charge,

and (3) enables the defendant to plead acquittal or conviction in

bar of future prosecutions for the same offense.2 "Practical, not

technical, considerations govern the validity of an indictment and

the test of the validity of an indictment is not whether the

indictment could have been framed in a more satisfactory manner,

but whether it conforms to minimal constitutional standards."3

Reviewing Wiley's indictment de novo, we find that it satisfies

this standard.4 The challenged clause, that defendants "did

willfully and knowingly combine, conspire, confederate and agree

together and with each other and with other persons to defraud the

United States by impeding, impairing, obstructing and defeating the

lawful governmental functions of the Internal Revenue Service of

the Treasury Department of the United States, and to commit an
 

5 United States v. Burton, 871 F.2d 1566, 1573 (11th Cir.

1989); see also Fields v. United States, 408 F.2d 885 (5th Cir.

1969).

5

offense against the United States," does not suggest that the

Internal Revenue Service, the Treasury Department and the United

States are separate entities. Nor is the conspiracy count

duplicitous. It cites the two underlying statutes which Wiley is

charged with conspiring to violate and lists ten overt acts in

furtherance of the conspiracy. This does not amount to a charge of

multiple crimes in one count. 

Finally, the language of the firearm count is not improper.

"Where a penal statute . . . prescribes several alternative ways in

which the statute may be violated and each is subject to the same

punishment, . . . the indictment may charge any or all of the acts

conjunctively, in a single count, as constituting the same offense,

and the government may satisfy its burden by proving that the

defendant, by commiting any one of the acts alleged, violated the

statute."5 That is what happened in this case. 18 U.S.C.

§ 922(g)(1) makes it unlawful for a convicted felon to ship,

transport, receive, or possess a firearm in interstate commerce.

Each is an alternative way to violate the statute; each is subject

to the same punishment. The indictment charged two of these

methods: transportation and possession of the Excam pistol found in

Wiley's luggage. The jury was instructed that it had to find only

one in order to convict. The firearm count charged Wiley with only

one offense. 
 

6 Glasser v. United States, 315 U.S. 60 (1942); Chaney.

 

7 Jackson v. Virginia, 443 U.S. 307 (1979); Chaney.

 

8 United States v. Shively, 927 F.2d 804 (5th Cir.),

cert. denied, U.S. , 111 S.Ct. 2806, 115 L.Ed. 2d 979

(1991).

6

2. Sufficiency of the evidence.

Wiley contends that the evidence of conspiracy was so

deficient that it effectively proved a different crime than that

for which he was indicted. He also challenges the sufficiency of

the evidence of intent to defraud the United States. In reviewing

a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the verdict6 and affirm if

any rational trier of fact could have found the essential elements

of the offense beyond a reasonable doubt.7 Applying this standard,

we find the evidence more than sufficient. 

Wiley maintains that there is no evidence of an agreement to

commit an unlawful act. An agreement may be inferred from concert

of action.8 Therefore, Wiley's criticism that "the government

relied on overwhelming the jury with evidence of the acts

themselves" is misplaced. The record also contains direct evidence

of an agreement between Wiley and Elvick, including Elvick's

representation during a tape recorded telephone conversation with

Cox that he and Wiley had worked for a number of years on the

drafts and that he could "fix Emil with anything he needs" for the

meeting in Austin, and Wiley's representation during that meeting
 

9 Intent to defraud the government is an element of 18

U.S.C. § 1002. Contrary to Wiley's arguments, it is not an

element of the conspiracy offense as submitted to the jury. 18

U.S.C. § 371 may be violated in either of two ways: by a

conspiracy to defraud the government or by a conspiracy to

violate a federal law. Tanner v. United States, 483 U.S. 107

(1987); United States v. Loney, 959 F.2d 1332 (5th Cir. 1992). 

The indictment charged both of these methods of violating the

statute but the jury was instructed in only the latter:

conspiracy to violate 18 U.S.C. § 472 and 18 U.S.C. § 1002. 

Proof of intent to defraud the government is not an element of

this type conspiracy. Loney. Nor is it an element of 18 U.S.C.

§ 472. Accordingly, Wiley's conviction for conspiracy to violate

this statute can stand without proof of intent to defraud the

United States.

7

that Elvick was his partner. Indeed, Elvick joined Wiley in three

recorded telephone conversations with Cox to explain the scheme. 

 There also was ample evidence of intent to defraud the

government.9 Wiley knew that the drafts were demands for funds

from the Internal Revenue Service; they so stated on their face and

Wiley explained to Cox that they were written against IRS 1040-

Forms. There also was evidence from which a reasonable jury could

conclude that he knew the demands for funds were not legitimate; he

described the scheme to Cox as "a bookkeeping charade" and warned

him not to involve accountants or lawyers. Wiley argues that he

merely was accepting assignments of refunds from taxpayers in

private transactions. The jurors were not obliged to accept this

interpretation of the evidence. They obviously did not.

3. Resolution of objections to PSR.

Invoking Fed.R.Crim.P. 32(c)(3)(D), Wiley contends that the

court failed to resolve his objections to the Presentence
8

Investigation Report. Fed.R.Crim.P. 32(c)(3)(D) requires the court

to make findings with regard to allegations of factual inaccuracies

in the PSR. At sentencing, the only specific objection to the PSR

raised by Wiley was that the conspiracy conviction was a

misdemeanor. This the court rejected. He then delivered a lengthy

speech in support of his "Motion to Dismiss," asserting violations

of, inter alia, natural law, the confrontation clause, the Speedy

Trial Act, the law merchant and the lack of admiralty jurisdiction.

These objections were not factual and did not relate to the PSR;

the were beyond the scope of Rule 32(c)(3)(D). This assignment of

error is meritless. 

4. Admission of evidence.

In his defense Wiley offered evidence that the IRS owed

Hilgeford a $10 million refund against which the sight drafts were

drawn. He now claims error in the admission of evidence that the

IRS froze Hilgeford's account and placed Hilgeford under

investigation in response to the 1040-Form on which he claimed such

a refund.

Wiley first challenges the evidence as hearsay, outside the

Fed.R.Evid. 803(8) public records exception to the hearsay rule

because it was offered in a criminal proceeding and concerned

"matters observed by . . . law enforcement personnel." In applying

this exclusion, however, we distinguish "between law enforcement

reports prepared in a routine, non-adversarial setting, and those

resulting from the arguably more subjective endeavor of
 

10 United States v. Quezada, 754 F.2d 1190, 1194 (5th Cir.

1985).

 

11 United States v. Beaumont, 972 F.2d 91, 94 (5th Cir.

1992).

9

investigating a crime and evaluating the results of that

investigation."10 Only the latter is excluded from the Rule 803(8)

public records exception to Rule 802's proscription of hearsay

evidence. The bare fact that Hilgeford's account was frozen and

that he was under investigation is in the former category and hence

is not excludable as hearsay. 

Wiley also maintains that the prejudicial effect of the

evidence outweighs its probative value. This objection was not

raised at trial. Our review, therefore, may only be for plain

error, that is, error "so fundamental as to result in a miscarriage

of justice."11 Our review of the record convinces us that admission

of the evidence was not plain error. Wiley presented evidence that

the IRS owed Hilgeford $10 million; in rebuttal the government was

entitled to present evidence that the IRS had made no such

determination. This assignment of error likewise is without merit.

The convictions and sentences are AFFIRMED.