United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1134

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United States of America,

Appellee,

v.

Robert Turner,

Appellant.

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No. 99-1136

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United States of America,

Appellee,

v.

Guinn Kelly,

Appellant.

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Appeals from the United States

District Court for the

Eastern District of Missouri.

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Submitted: May 12, 1999

 Filed: August 12, 1999

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1The Honorable Stephen N. Limbaugh, United States District Judge for the

Eastern District of Missouri. 

2

Before LOKEN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges. 

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HANSEN, Circuit Judge.

A jury convicted former St. Louis, Missouri, police officers Robert Turner and

Guinn Kelly on charges stemming from a scheme to defraud a low-income housing

project funded by the United States Department of Housing and Urban Development

(HUD). The district court1 sentenced Turner to 18 months of imprisonment, and Kelly

received a 24-month sentence. Turner and Kelly appeal their convictions, and we

affirm.

I. Background

Cochran Gardens is a low-income housing project located in St. Louis, Missouri,

that receives substantially all of its funding from the federal government via HUD. The

housing project supplemented its security forces with off-duty police officers. One of

the officers hired by Cochran Gardens to supplement its security forces was Guinn

Kelly, a sergeant with the St. Louis Police Department. In September 1993, Robert

Turner, Kenny Givens, and Rodney Brunson, all of whom were also St. Louis police

officers, joined Kelly at Cochran Gardens. Turner and Givens were also partners in the

intelligence division of the St. Louis Police Department. Although many other off-duty

policemen worked at Cochran Gardens, Kelly, Turner, Givens, and Brunson comprised

a special, plainclothes unit charged with investigating drug trafficking, weapons

violations, and gathering intelligence. Almost immediately after Kelly, Turner, Givens,

and Brunson started working together at Cochran Gardens, the four men began

submitting false time cards that overstated the number of hours they worked at the

housing project.
3

The scheme was uncovered in the Spring of 1994, and shortly thereafter Brunson

pleaded guilty and agreed to cooperate with authorities investigating the matter. A

federal grand jury eventually indicted Kelly, Turner, and Givens, and the three men

stood trial together. On the fourth day of the trial, the district court declared a mistrial

with respect to all of the defendants when it appeared that Givens's attorney might have

to testify to impeach a government witness. After the district court denied defense

motions to dismiss the indictment on double jeopardy grounds, Turner, Kelly, and

Givens appealed. See United States v. Givens, 88 F.3d 608 (8th Cir. 1996). In that

case, we concluded that although a mistrial was manifestly necessary with respect to

Givens because it was his attorney who might have to testify, there was no manifest

necessity for declaring a mistrial with respect to Turner and Kelly. See id. at 613-14.

We held, therefore, that double jeopardy considerations barred a retrial of Turner and

Kelly on the charges contained in the indictment. See id. at 614.

After our decision in the first appeal, Givens pleaded guilty and agreed to

cooperate with authorities. A superseding indictment was filed against Turner and

Kelly, which the defendants moved to dismiss on double jeopardy and res judicata

grounds. The district court denied the motion, and, with the exception of one count

against Kelly, we affirmed. See United States v. Turner, 130 F.3d 815, 820 (8th Cir.

1997), cert. denied, 118 S. Ct. 2071 (1998).

Turner and Kelly's second trial commenced in late September 1998. Brunson

and Givens testified for the government and explained how the four officers clocked

each other in and out at Cochran Gardens and submitted false time cards so that they

would be paid for work they did not perform. Brunson testified that the men actually

worked only about 40 percent of the hours reflected on their time cards. Givens

testified that the men were required to be at Cochran Gardens at approximately 10

p.m., but that requirement often conflicted with their police duties because they were

frequently assigned to work the 6 p.m. to 2 a.m. shift. According to Givens, "we

wanted to keep both [jobs], so we showed up and clocked in anyway and as soon as
2

 During his opening statement, Turner's counsel offered an explanation as to

why officers had to submit an overtime slip in order to take comp time. If an officer

was injured while on comp time, the police department might have to pay a worker's

compensation claim because the duty roster showed the officer as being on duty. By

using an overtime slip, the department could document the fact that the officer was not

injured while on duty. If the officer returned from comp time unscathed, the overtime

slip could then be torn up and the officer would be paid as if he had been on duty, and

4

we had a chance, we'd go back to the police department and work." (Trial Tr. Vol. 2

at 162.)

Aside from the testimony of Brunson and Givens, the government presented

substantial documentary evidence showing overlaps between the times Turner and

Kelly were on duty with the police department and the times they also claimed to be

working at Cochran Gardens. In particular, the government submitted the relevant

police department duty rosters and corresponding Cochran Gardens time cards. This

evidence showed, for example, that between September 23, 1993, and March 11, 1994,

Kelly's time overlapped on some 58 occasions, and Turner's time overlapped on 38

occasions. During one seven day period in December 1993, Kelly's overlaps were so

large that it appeared as if he worked an average of 22 hours per day, and that he twice

worked more than 24 hours in a single day. The government also presented payroll

records showing that Turner and Kelly were paid for the time reflected on their

Cochran Gardens time cards.

Turner and Kelly offered various explanations for the overlaps between the

police department duty rosters and the Cochran Gardens time cards. For example, the

defendants maintained that the police department duty rosters were unreliable because

they did not reflect the use of an unofficial form of compensatory time (comp time) that

was allegedly used to compensate officers for unpaid overtime. According to the

defendants, a police officer could submit an overtime slip, take time off, and then the

slip would be destroyed upon the officer's return to work.2

 Such a practice, if it existed,
the duty roster would never show that the officer had taken comp time. See Trial Tr.

Vol. 1 at 184.

5

would undermine the accuracy of the police department duty rosters because the rosters

would show that an officer was on duty when in fact he was not. The government,

however, offered evidence showing that although the duty rosters were not infallible,

they were generally an accurate reflection of the times police officers were on duty.

Furthermore, the government offered direct and circumstantial evidence—unrelated to

the duty rosters—showing that the defendants did not work at Cochran Gardens all of

the hours reflected on the time cards. For example, Givens and Brunson testified that

all four men routinely clocked in and then left Cochran Gardens. In fact, the

government produced evidence showing that Turner was clocked in at Cochran

Gardens even though he was out of town at a football game.

Kelly faced an additional problem in his attempt to establish the unreliability of

the police department duty rosters. As a sergeant, Kelly was ineligible for overtime,

so he could not claim that he received unofficial comp time in lieu of overtime pay.

When pressed on this matter during cross-examination, Kelly offered several, often

confusing, explanations. Eventually Kelly claimed that his position with the police

department allowed him to come and go as he pleased without permission from any

supervisor. (See Trial Tr. Vol. 5-A at 48-50.) Kelly also maintained that Cochran

Gardens gave him a secret bonus of 25 hours per week to compensate him for his

service to Cochran Gardens when he was not officially on duty at the housing project.

Aside from the asserted unreliability of the police department duty rosters, the

defendants also suggested that the time cards did not accurately reflect the hours they

worked at Cochran Gardens, and that there was physically no way they could have

falsified the time cards. For example, they claimed that the time cards were locked up

and out of their control. This argument, however, was seriously undercut by Brunson's

and Givens's testimony. Both Brunson and Givens testified that the time cards were
6

not always stored in a secure location, and in any event, Kelly had a key that allowed

the men to gain access to the time cards. Brunson further testified that when the men

could not get access to the time cards because Kelly was sick, Kelly later recorded the

times by hand. Givens testified that he also had a key, and because he lived near

Cochran Gardens, he was often tasked with returning to the housing project, early in

the morning, to clock the men out.

Although Turner and Kelly testified at trial and maintained their innocence, the

jury found both men guilty of multiple counts of making false statements to HUD, in

violation of 18 U.S.C. § 1001, aiding and abetting Kenny Givens in making false

statements to HUD, in violation of 18 U.S.C. §§ 1001 and 2, and stealing HUD funds,

in violation of 18 U.S.C. § 641. Turner and Kelly both appeal and contest certain

evidentiary rulings, as well as the sufficiency of the government's evidence against

them. Additionally, Turner contends that he is entitled to a new trial due to several

alleged instructional errors, and that Givens's and Brunson's testimony should have

been excluded pursuant to 18 U.S.C. § 201(c)(2) (antibribery statute).

II. Discussion

A. Cross-Examination of Kenny Givens

During its case-in-chief, the government questioned Kenny Givens about the

accuracy of the police department duty rosters. Givens testified that with the exception

of a few isolated incidents, the duty rosters accurately reflected the times police officers

worked. On cross-examination, Turner's counsel attempted to elicit testimony

regarding comp time. In particular, Givens was asked if he knew of a practice whereby

an officer would submit an overtime slip, take a day off, and then the slip would be

destroyed upon the officer's return. Givens testified that he was not aware of any such

practice in the intelligence division, the division where he and Turner were partners.

In an attempt to impeach Givens's credibility on this issue, Turner's counsel sought to
3

 The district court expressed concerns that defense counsel might be angling for

another mistrial and accused counsel of "playing games" with the court. (Trial Tr. Vol.

3 at 135-37.)

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question Givens regarding statements Givens had allegedly made to defense attorneys,

including Kelly's attorney, Kurt Schultz, regarding comp time. The district court

refused to allow questions relating to conversations Givens had with defense attorneys

and would not let Mr. Schultz testify.3 On appeal, Turner and Kelly contend that the

district court infringed their confrontation rights by limiting their cross-examination of

Givens.

The Confrontation Clause of the Sixth Amendment secures a defendant's right

"to be confronted with the witnesses against him." U.S. Const. amend. VI. "The

defendant's right to confront witnesses, however, does not prevent a trial judge from

placing reasonable limits on defense counsel's cross-examination of government

witnesses, and the court has wide latitude to impose such limits." United States v.

Ortega, 150 F.3d 937, 941 (8th Cir. 1998) (quotations and brackets omitted), cert.

denied, 119 S. Ct. 837 (1999). Therefore, "[a]bsent a clear abuse of discretion and a

showing of prejudice, we will not reverse a district court's ruling limiting crossexamination of a prosecution witness on the basis that it impermissibly infringed [a

defendant's] right of confrontation." United States v. Stewart, 122 F.3d 625, 627 (8th

Cir. 1997).

Having carefully reviewed the relevant portions of the trial transcript, we cannot

say that the district court clearly abused its discretion in limiting the cross-examination

of Givens. Even if we assume that Givens made prior inconsistent statements regarding

comp time to Mr. Schultz or other defense attorneys, those statements were not given

under oath and thus did not qualify as substantive evidence under Federal Rule of

Evidence 801(d)(1)(A) (prior statement by a witness). As such, Givens's alleged

statements would have only been admissible for the limited purpose of impeaching
8

Givens's credibility, and not as substantive evidence that the alleged comp time practice

actually occurred at the police department. See Fireman's Fund Ins. Co. v. Thien, 8

F.3d 1307, 1311 (8th Cir. 1993) (noting that a prior inconsistent statement may be

admissible under Fed. R. Evid. 613(b) for impeachment purposes, but not for the truth

of the matter contained therein). In fact, had defense counsel been allowed to crossexamine Givens with respect to the statements he allegedly made to Mr. Schultz, the

government would have been entitled to have the jury "instructed that the evidence was

admissible only to impeach [Givens] and not as evidence of a material fact." Id. at

1312. 

In any event, the district court allowed the defendants to cross-examine Givens

extensively on issues related to Givens's credibility. The district court permitted

defense counsel to question Givens regarding any prior inconsistent statements Givens

may have made to nonlawyers regarding comp time. Further, the district court

permitted questioning that directly undercut the accuracy of the duty rosters. For

example, defense counsel questioned Givens regarding a personal trip Givens had taken

to North Carolina when the duty roster showed him as being on duty. In response,

Givens admitted that it was possible that the duty roster inaccurately showed him as

being on duty when he was in North Carolina. Finally, defense counsel cross-examined

Givens regarding his motivation to testify favorably for the government due to his plea

agreement. In view of the foregoing, we conclude that "[t]he jury's ability to judge

[Givens's] reliability was not significantly reduced" when the district court excluded

from the scope of cross-examination questions regarding what Givens had allegedly

told defense attorneys about comp time. United States v. Dempewolf, 817 F.2d 1318,

1321 (8th Cir.), cert. denied, 484 U.S. 903 (1987). Consequently, we cannot say that

the district court clearly abused its discretion, given its history with the prior mistrial.

We further conclude that the defendants have failed to show any meaningful

prejudice attributable to the district court's decision to limit the cross-examination of

Givens. See Stewart, 122 F.3d at 627 (noting that the court will not reverse a district
9

court's evidentiary ruling absent a showing of abuse of discretion and prejudice).

Turner and Kelly contend that Givens's testimony was critical to the government's case,

and that the case against them essentially boiled down to a swearing match between

Givens and the defendants. Therefore, according to Turner and Kelly, it was crucial

to their defense that they be allowed to cross-examine Givens as to what he told Kurt

Schultz, and possibly other defense attorneys, about the existence of comp time.

Although Givens's testimony was no doubt damaging to the defendants' cases,

we cannot ascribe such critical significance to his specific testimony regarding comp

time. Givens was not the only witness to testify as to the accuracy of the police

department duty rosters. For example, Ed Naeger, a detective in the St. Louis police

department during the time in question, also testified that the duty rosters accurately

reflected the hours officers worked. Mr. Naeger further testified that he had heard of

comp time, but that such a practice did not occur in the intelligence division of the

police department, the division in which Turner and Givens were partners while they

moonlighted at Cochran Gardens. (See Trial Tr. Vol. 4 at 63.) Furthermore, Rodney

Brunson's testimony provided substantial evidence against the defendants that did not

hinge on the accuracy of the police department duty rosters. According to Brunson, the

four men worked approximately 40 percent of the hours reflected on the Cochran

Gardens time cards, and the men coordinated who would be responsible for punching

each other's time cards. Brunson also testified that although the four had been assigned

to a special investigative unit at Cochran Gardens, he could not recall that the unit ever

actually performed those duties. Finally, as a sergeant, Kelly was ineligible for

overtime pay, thus he could not claim, as did Turner, that he received unofficial comp

time in lieu of paid overtime.

Turner and Kelly further maintain that the district court infringed their

confrontation rights when the court limited Turner's cross-examination of Givens with

respect to video surveillance conducted by Givens. According to the defendants,

Givens conducted the video surveillance in an effort to defend himself prior to the time
10

that he pleaded guilty. The district court allowed counsel for Turner to make an offer

of proof, but concluded that the surveillance evidence was not admissible because, inter

alia, it related to events occurring after the indictment. We have reviewed the relevant

portions of the record, and we cannot say that the district court clearly abused its

discretion in limiting the cross-examination of Givens with respect to the video

surveillance. Furthermore, the defendants have failed to attribute any legally

meaningful prejudice to this evidentiary decision of the district court.

In sum, we hold that the district court did not clearly abuse its discretion in

limiting the cross-examination of Givens. We further hold that the defendants are not

entitled to a reversal because they have failed to show any meaningful prejudice

attributable to the district court's decision to limit the cross-examination of Givens.

Because of our decision on this issue, we do not reach the separate question of whether

Givens's alleged statements to defense counsel regarding comp time were also

independently excludable under a joint-defense privilege.

B. Business Records Evidence

The government produced substantial documentary evidence against Turner and

Kelly. During its case-in-chief, the government introduced Cochran Gardens' time

cards and payroll records clearly showing overlaps between the times Turner and Kelly

were allegedly working at Cochran Gardens and the times reflected on the police

department duty rosters. Turner and Kelly contend that the district court erred in

admitting these records into evidence over their hearsay objections. We may reverse

a district court's determination regarding the admissibility of evidence only upon a

showing that the district court clearly abused its discretion. See Resolution Trust Corp.

v. Eason, 17 F.3d 1126, 1131 (8th Cir. 1994). As we explain below, we conclude that

the district court did not clearly abuse its discretion in admitting the time card and

payroll evidence in this case.
4

 Although the defendants use the term "double hearsay," we prefer the term

"hearsay upon hearsay" because it more accurately describes the evidentiary issue.

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We first reject Turner and Kelly's argument that the time card and payroll

evidence contained hearsay upon hearsay.4 The fact that a business document may

contain entries in different forms or even from different sources does not necessarily

imply that a hearsay upon hearsay problem exists. When a single business record

contains different information recorded directly from multiple sources, or on multiple

occasions, there may be several instances of hearsay, but there is only one layer of

hearsay. For example, if one employee records his time on a time card each day and

a supervisor signs the card prior to submitting it to the payroll department, the time card

contains hearsay entries from both the employee and the supervisor, but only one layer

of hearsay. On the other hand, when the source of information and the recorder of that

information are not the same person, the business record contains hearsay upon

hearsay. If both the source and recorder of the information were acting in the regular

course of the organization's business, however, the hearsay upon hearsay problem may

be excused by the business records exception to the rule against hearsay. See Grogg

v. Missouri Pac. R.R. Co., 841 F.2d 210, 213-14 (8th Cir. 1988); Fed. R. Evid. 803(6).

Because the defendants offer no credible assertion that an outsider to the chain of

producing the time card and payroll records (i.e., a person not acting in the regular

course of Cochran Gardens' business) provided any of the information contained in

those records, we conclude that the district court did not clearly abuse its discretion

in admitting the records over the defendants' hearsay upon hearsay objection.

Having rejected the defendants' hearsay upon hearsay argument, we must next

consider whether the district court abused its discretion in admitting the time cards and

payroll records under the business records exception. See Fed. R. Evid. 803(6). Rule

803(6) allows for the admission of business records
5

 The St. Louis Housing Authority took over the management of Cochran

Gardens from the Cochran Gardens Tenant Management Corporation in June 1998,

after the first trial for which the records had been subpoenaed. Therefore, at the time

of the second trial, although the St. Louis Housing Authority was responsible for

maintaining Cochran Gardens' business records, it did not possess the records because

they had been turned over pursuant to the subpoena.

6

 The defendants do not contest the fact that Ms. Bell was unavailable to testify

because she could not be located.

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made at or near the time by, or from information transmitted by, a person

with knowledge, if kept in the course of a regularly conducted business

activity, and if it was the regular practice of that business activity to make

the . . . record . . ., all as shown by the testimony of the custodian or other

qualified witness.

Fed. R. Evid. 803(6).

In this case, the government called Ms. Calea Stovall-Reid, the records custodian

for the St. Louis Housing Authority, to lay the foundation for the introduction of the

time cards and payroll records.5 As the custodian, Ms. Stovall-Reid's testimony would

normally be sufficient to lay the foundation for the introduction of Cochran Gardens'

business records. Ms. Stovall-Reid, however, had never seen the documents until

shortly before the trial. Out of an abundance of caution, the government read into

evidence the former testimony of Ms. Norma Bell, the records custodian who laid the

foundation for the introduction of the time cards and payroll records at the first trial.6

Notwithstanding the testimony of Ms. Stovall-Reid and Ms. Bell, Turner and Kelly

contend that the government failed to lay a sufficient foundation for the introduction of

the time card and payroll evidence, and, therefore, the district court abused its

discretion in admitting the evidence under the business records exception to the rule

against hearsay. See Fed. R. Evid. 803(6). As with most evidentiary decisions, we

may reverse a district court's determination of the adequacy of the foundation laid for
13

the admission of evidence only if the district court clearly abused its discretion. See

United States v. Franks, 939 F.2d 600, 602 (8th Cir. 1991).

A sponsoring witness need not possess or even see the records in question before

trial. See United States v. Coohey, 11 F.3d 97, 99-100 (8th Cir. 1993) (holding that

a sponsoring witness could authenticate phone records even though she had not seen

or possessed the records prior to trial). In Coohey, we specifically noted that even if

the witness "was not the keeper of the records and did not prepare them, . . . [that]

would not impede her ability to testify that the records were authentic." Id. at 100. See

also id. at 100 n.2 (applying the same rationale to arguments specifically directed to the

foundation required under Fed. R. Evid. 803(6)). "Evidence is admissible if the trial

judge is satisfied, after consideration of such factors as the nature of the evidence, the

circumstances surrounding its preservation and custody, and the likelihood that it has

been tampered with, that the evidence has not in all reasonable probability been

changed in any significant respect." Id. at 100. Further, "Rule 803(6) is satisfied if the

custodian 'demonstrates that a document has been prepared and kept in the course of

a regularly conducted business activity.'" Franks, 939 F.2d at 602 (quoting United

States v. Pfeiffer, 539 F.2d 668, 671 (8th Cir. 1976)). Having reviewed the relevant

portions of the trial transcript, we conclude that the testimony of Ms. Stovall-Reid and

Ms. Bell sufficiently established that the time cards and payroll records had been

prepared and kept in the regular course of Cochran Gardens' business. Further,

Brunson's and Givens's testimony established how the time entries on the time cards

were made. We cannot say, therefore, that the district court clearly abused its

discretion in admitting the time card and payroll evidence over the defendants'

objections.

Finally, Turner contends that his confrontation rights were violated when the

district court allowed the government to read Ms. Bell's former testimony into evidence.

Because Ms. Bell was unavailable to testify at the second trial, and she testified at the

first trial under oath and was then subject to cross-examination by Turner, there would
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normally be no problem reading her former testimony into evidence. See Fed. R. Evid.

804(b)(1) (permitting the introduction of an unavailable witness's former testimony "if

the party against whom the testimony is now offered . . . had an opportunity and similar

motive to develop the testimony by direct, cross, or redirect examination").

Furthermore, Turner does not argue that the time cards and payroll records were

improperly admitted at the first trial. Rather, Turner asserts that his confrontation rights

were violated in the instant case because he was unable to impeach Ms. Bell's

credibility with new evidence regarding Ms. Bell's alleged illegal activities, as

contained in an FBI memo. We find this argument unpersuasive.

The government read Ms. Bell's former testimony into evidence solely to lay the

foundation for the admission of the time card and payroll evidence. There is no

credible assertion that the evidence contained in the FBI memo was either directly

admissible or proper subject matter for cross-examination. The record does not show

that Ms. Bell had been convicted on any felony grade charges related to the alleged

illegal activities, and we reject the naked assertion that such evidence relates to Ms.

Bell's motive or bias to testify falsely in laying the foundation for the business records

in question. Simply stated, the district court did not infringe Turner's confrontation

rights by permitting the government to read Ms. Bell's former testimony into evidence.

We hold that the district court did not abuse its discretion in admitting the time

card and payroll evidence. We further hold that the district court did not violate

Turner's confrontation rights when it permitted the government to read Ms. Bell's

former testimony into evidence.

C. Jury Instructions

Turner claims that he is entitled to a new trial due to several alleged instructional

errors. We review a district court's jury instructions for abuse of discretion. See

United States v. Tucker, 169 F.3d 1115, 1119 (8th Cir. 1999). In so doing, we do not
15

consider portions of a jury instruction in isolation, but rather consider the instructions

as a whole to determine if they fairly and adequately reflect the law applicable to the

case. See id.

Turner first claims that Instruction No. 11 impermissibly "allowed the jury to

return guilty verdicts for offenses that were committed 'on or about' certain dates."

(Appellant Turner's Br. at 37.) Instruction No. 11 reads as follows:

You will note the indictment charges that the offenses were

committed "on or about" certain dates. The proof need not establish with

certainty the exact dates of the alleged offenses. It is sufficient if the

evidence in the case establishes beyond a reasonable doubt that the

offenses were committed on dates reasonably near the dates alleged. 

Turner cites no authority for his proposition that using "on or about" in the instruction

was improper, and we find no error. See United States v. Williams, 657 F.2d 199, 202-

03 (8th Cir. 1981) (approving a substantially similar "on or about" instruction); see also

United States v. Duke, 940 F.2d 1113, 1120 (8th Cir. 1991) ("The law is clear that the

use of 'on or about' in an indictment relieves the government of proving that the crime

charged occurred on a specific date, so long as it occurred within a reasonable time of

the date specified."); 1 Edward J. Devitt, et al., Federal Jury Practice and Instructions

§ 13.05 (4th ed. 1992) (collecting examples of similar federal pattern criminal jury

instructions explaining a jury's duty when a count in the indictment uses "on or about"

language).

Turner further suggests that Instruction Nos. 16 and 18 were improper because

those instructions did not follow the Eighth Circuit Model Instructions. We have held

that the Eighth Circuit Model Instructions are not binding on the district courts of our

circuit, and therefore, we decline to ascribe error solely because a district court's

instructions deviated from the model instructions. See United States v. Jones, 23 F.3d

1407, 1409 (8th Cir. 1994).
16

We also reject Turner's contention that Instruction No. 16 improperly defined

materiality. Instruction No. 16 defined the elements of making a false, fictitious, or

fraudulent statement in a matter within the jurisdiction of a federal agency, in violation

of 18 U.S.C. § 1001. In particular, the instruction required the jury to decide whether

the alleged false statement or representation was material, and instructed the jury that

"[a] statement or representation is 'material' if it has a natural tendency to influence or

be capable of influencing the decision to make payments of money." (Instruction No.

16.) According to Turner, Instruction No. 16 permitted the jury to make a finding of

materiality without specifically requiring the jury to find that Turner's false time cards

were material to the government.

The Supreme Court has held that the question of whether a statement or

representation is material within the meaning of 18 U.S.C. § 1001 is a matter for the

jury to decide. See United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (holding that

a trial judge's refusal to submit the issue of the materiality of a defendant's false

statements infringed the defendant's right to have a jury determine every element of the

charged offense beyond a reasonable doubt). In the instant case there is no dispute that

the district court committed the question of materiality to the jury, and we find no error

in the fact that Instruction No. 16 defined materiality generally, rather than by specific

reference to HUD. See United States v. Richmond, 700 F.2d 1183, 1188 (8th Cir.

1983) ("To establish materiality of a false statement it is not necessary to show that a

government agency actually relied on the statement, that the government suffered

pecuniary loss as a result of the statement, or that the false statement was sufficient to

induce a payment or benefit."), abrogated on other grounds, United States v. Raether,

82 F.3d 192 (8th Cir. 1996).

Finally, we cannot accept Turner's claim that Instruction No. 18 was improper

because it permitted him to be convicted of violating 18 U.S.C. § 641 without any
17

position. Turner's reliance on Owen is misplaced. In Owen, the Tenth Circuit

specifically declined to decide the question of whether federal grant money in the hands

of a grantee was money that belonged to the United States for purposes of 18 U.S.C.

§ 641. See id. at 343. Rather, the court simply concluded that there was insufficient

evidence showing that the money taken by the defendant had come from HUD. See id.

at 343 ("We need not decide whether the grant money was 'money . . . of the United

States' under § 641 because there is insufficient evidence to warrant a finding that any

of the money . . . was HUD grant money."). We labor under no such difficulty in this

case. Turner stipulated that during the relevant time frame, HUD provided substantially

all of the funds for Cochran Gardens' operating budget, including security costs, and

that the funds were federal funds. (See Trial Tr. Vol. 3 at 263.) In view of this

stipulation, we find no error in Instruction No. 18. Cf. United States v. Gjerde, 110

F.3d 595, 601 (8th Cir.) (rejecting an argument that HUD grant money in the hands of

a state grantee deprived the funds of their federal character), cert. denied, 118 S. Ct.

367 (1997); United States v. Scott, 784 F.2d 787, 791 (7th Cir.) (distinguishing Owen

when the federal funding at issue was continuous), cert. denied, 476 U.S. 1145 (1986).

Turner is not entitled to a new trial due to the challenged jury instructions.

D. Other Issues

Finally, Turner and Kelly claim that there was insufficient evidence to support

their convictions. Additionally, Turner contends that the testimony of Givens and

Brunson should have been excluded pursuant to 18 U.S.C. § 201(c)(2). As our review

of the evidence above demonstrates, we have carefully considered the sufficiency

argument and we find it to be without merit. Turner's 18 U.S.C. § 201(c)(2) argument

is foreclosed by United States v. Mosby, 177 F.3d 1067, 1069-70 (8th Cir. 1999).

III. Conclusion
18

The district court's judgments with respect to Turner and Kelly are affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.