United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ Nos. 96-3448/3774

___________ United States of America, *

Appellee, * Appeals from the United States

v. * of
Wilbur D. Wilkinson, *

Appellant. * *

* District Court for the District

* North Dakota.

*

*

___________ Submitted: May 20, 1997 Filed: September 5, 1997

___________ Before RICHARD S. ARN OLD, Chief Judge, BOWMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________
BOWMAN, Circuit Judge. A jury found Wilbur Dale Wilkinson guilty of embezzling, misapp lying, and converting tribal funds from an Indian tribal organization in violatio n of 18 U.S.C. § 1163 (1994); misapplying funds un der the care, custody, and control of an Indian tribal government receiving federal grants in excess of $10,000 in violati on of 18 U.S.C. § 666(a)(1)(A) (1994); knowingly and willfully making false material statements in violation of 18 U.S.C. § 100 1 (1994); and aiding and abetting the above activities

## The Honorable Patrick A. Conmy, United States District Judge for the District 1 

## of North Dakota.
-2- in violatio n of 18 U.S.C. § 2 (1994). Having been sentenced by th e District Court, Wilkinson appeals his convictions. We affirm. 1

I.

The following facts are based on the evidence, with dispute d questions of fact deemed to have been resolved by the jury in a manner tha t support s its verdict. Wilkinson was Chairman of the Three Affiliate d Tribes (the Tribe) at all times relevant to the illegal activities charged in the indictment. The Tribe is located on the Fort Berthold India n Reservation in North Dakota and qualifies as an Indian tribal organization under 18 U.S.C. § 1163 (1994). In July 1991, Wi lkinson completed, signed, and submitted an application to the Bureau of Indian Affairs (BIA) for a Management and Technical Assistance grant for the purposes of hiring a consultant to assist the tribal loan office in resolving defaulted loans. The grant application stated that the Tribe would be responsible for hirin g the i ndividual consultant. As a result of this application, the Trib e received approximately $68,000 in 1992 and $105, 000 in 1993. The $105,000 disb ursement was made under the condition that the Tribe comply wit h special reporting andsupervision requirements imposed by the BIA. These cond itions were placed on the receipt of these funds after the Trib e neglected to comply with standard reporting proc edures after receiving the $68,000 payment in 1992. A Commitment Order bet ween the Tribe and the BIA outlining the applicable conditions was signed by Wilkinson on behalf of the Tribe.

The $105, 000 check was received and endorsed by Wilkinson on behalf of the Tribe and deposited in a supervised account opened in the nam e "Three Affiliated Tribes and the Bureau of Indian Affairs, Technica l Assistance." Signatories on the account include d two tribal officials and two BIA officials; withdrawals from the

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account required the signature of two parties--one from the Tribe and one from the BIA. Wilkinson was not a signatory on this account.

In September 1993, Wilkinson approached his nephew's wife, Kay e Wilkinson, and, promising to train her in the co nsulting business, offered her the position described in the grant applicat ion. In tendering to Kaye the pr oposed consulting agreement between her and the Tribe, Wilkinso n represented, contrary to the terms of the proposed agreement, that sh e would receive ten percent of the proceeds earned under the agreement and he wou ld receive the remaining ninety percent. Based on thes e representations, Kaye accepted the position and executed the consultin g agreement, which prov ided that she would perform the consulting duties in return for an hourly wage and reimbursement of expenses.

Wilkinson presented this consulting agreement to tribal officia ls and the BIA superintenden t and, without Kaye's knowledge, represented to them that Kaye needed a $20,000 advance for start-up expenses. Pursuant t o Wilkin son's direction, the tribal credit officer, a signatory of th e sup ervised account, prepared and signed a $20,000 check made payable t o Ka ye and obtained the requisite counter-signature of the BI A superintendent. Wilk inson then personally delivered this check to Kaye's home and, because Kaye was not there, demanded that her husband, Spencer Wilkinson Jr., endorse and deposit the check, keep $2,000 for Kaye, an d return $18,000 to Wilkinson in cash. Spencer Jr., surprised at the size of th e payment and worried about the potential tax consequences of th e transaction, called Kaye who communicated her understanding that she was to receive only $2,000 and who could not explain why a check for $20,000 was issued in her name. Despite his misgivings, Spencer Jr. deposited the check and, rather than returning $18,000 in cash, wrote a personal check to Wilkinson for $18, 000. Spencer Jr. testified that Wilkinson chastised himfor his failure to obtain cash, but grudgingly accepted the personal check.

## -4- Kaye performed no consulting work, received no training fro m Wilkinson, and submitted no progress reports to the Tribe or the BIA for the nex t several months. Eventually, however, BIA officials began t o wonder whether any work was being performed to j ustify the $20,000 advance pay ment made to Kaye. Officials called Kaye on a number of occasion s inquiring about her progress on the delinquent loan accounts and Kaye , bec ause she was expecting guidance from her uncle, called Wilkinson wh o informed her that he was on top of the situation. In Apr il 1994, Wilkinson delivered to Kaye handwritten report s summarizing the current status of some problem loans and requested that sh e type the reports. Th e information contained in these reports was derived fromfiles obtained by Wilkinson from the tribal loan office and did not signify an y progress on the resolution of the delinquent loans. Onc e typed, these reports, which provided little if any new information, were submitted to the BIA and represented by Wilkinson to be Kaye's work produc t under the consulting agreement. Also in A

pril 1994, Wilkinson procured seven blank consultant claim stateme nts and had them delivered to Kaye at work. She was directed t o sign the b lank documents and return them to Wilkinson, which she did

. Wilkin son then completed these forms with fictitious numbers of mile s driven and hours worked by Kaye in relation to the consulting agreement fo r each month from October 1993 through April 1994. Wilkinson then presented thes e claim statements, totaling $7,972.25, for verification to triba l officials who signed them at Wilkinson's directi on. A check was issued by the tribal credit officer and, after a cursory i nquiry into the legitimacy of the claims, the BIA superintendent eventually counter-signed the expens e check. Wilkinson del ivered the check, issued in Kaye's name, to her home and, beca use Kaye was not there, presented the check to Spencer Jr. an d insisted that he keep $2,000 for Kaye and return the remainder of the fund s to Wilkinson in cash. Spencer Jr., having become even more suspicious of the arrangement, denied that Kaye had performed sufficient consulting work to warrant an additional $2,000 payment and consequently wrote a

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personal check to Wilkinson for the full $7,972. 25. Spencer Jr. deposited the expense check in his and Kaye's joint checking account the next day.

An inves tigation was launched by BIA and FBI officials, leading t o Wilkinson's indictment by a grand jury and his subsequent trial.

II. Wilkinson first argues that the Dist rict Court abused its discretion by withdrawing two exhibits from evidence at the close of his case. Prior to tr ial, in an effort to expedite the presentation of the documentar y eviden ce, the parties jointly prepared a binder containing the exhibit s each side intended to rely on during trial. The prosecution explained, an d defense counsel agreed, that although the foundation for these exhibits ha d been established, their relevancy remained at issue and was to b e dete rmined during the trial. The District Court understood that th e parties had "reservedthe right to object to relevancy on documents, even though foundation may have been established." Trial Tr. Vol. 1 at 12. Included in the jointly prepared binder was Exhibit 32, a bill o f sale signed by Wilkinson and attested to by his brother, Virgil Wilkinson, purporting to establish that Wilkinson sold a 19 92 Chevrolet Camaro to his nephew, Spencer Wilkinson, Jr. for $18,000. Als o included was Exhibit 47,

a cash receipt for $7,972.25 signed by Wilkinson and attested to by Virgil

. During cross-examination of Spencer Jr., the defense attempted to show tha t the $18,000 personal check written to Wilkinson by Spencer Jr. was payment for the purchase of the Camaro and that the $7,972.25 check written t o Wilkinson was repayme nt of a $6,000 loan made by Wilkinson to Spencer Jr. and a $1,792.25 earnest money payment from Spencer Jr. to Wilkinson fo r farmequipment. Spencer Jr. specifically refuted these explanations for the c hecks, denying that he had ever borrowed money from Wilkinson an d asserti ng that his father, Spencer Wilkinson Sr., rather than he, ha d purchased the Camaro from Wilkinson. Defense

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coun sel did not attempt to impeach this testimony through the use o f Exhibits 32 or 47 nor did defense counsel call V irgil, the attesting party on both documents, to corroborate the theory that Spencer Jr.'s checks to Wilkinson were for legitimate purposes. Wilkinson called witnesses and prese nted a defense. At the close of his proof, the government informed the District Court that it intended to recall Spencer Jr. to rebut Wilkinson's theory that the two checks wer e writte n to Wilkinson for legitimate reasons and to discount th e authenti cityof the bill of sale and the cash receipt included in th e evidence binder because neither document had been published or explained to the jury during tr ial. After a discussion in chambers, the government agreed not to recall Spencer Jr. if Exhibits 32 and 47 were withdrawn

. Defense counsel objected, but the District Court eventually withdrew the documents noting that they were "completely irrelevant to any appropriate def ense" and that "if . . . a kickback occurs, it is no defense that i t occurred to pay a preexisting debt or obligation." Id. Vol. III at 428. Evidenc e is relevant if it has "any tendency to make the existenc e of any fact that is of consequence to the determ ination of the action more probable or less probable than it would be witho ut the evidence." Fed. R. Evid. 401. Relevant evidence is generally admissible, while irrelevan t evidence is not. See Fed. R. Evid. 402. A district court's decision to excl ude evidence is reviewed for abuse of discretion, and "[w]e wil l reverse only if the abuse is clear, and if the p arties' substantive rights

are affected." Yannacopoulos v. General Dynamics Corp. , 75 F.3d 1298, 130 1 (8th Cir. 1996). The District Court excluded Exhibits 32 and 47 a s irrelevant after determining that even if the documents tended to establis h that Spencer Jr. owed Wilkinson a preexisting de bt, repayment of that debt bystructuring an illegal kickback scheme operates as no defense to th e crimes charged in the indictment. The p arties only conditionally stipulated to the documentar y evidence, specifically reserving the issue of the relevance of each exhibi t for later determination

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by the District Court. The District Court did n ot abuse its discretion by excluding Exhibits 32 and 47 on the ground that they were irrelevant to an y legitimate defense.

III.

Wi lkinson next argues that the superseding indictment wa s multiplicious and th at the District Court erred in failing to dismiss or consolidate the count s. We disagree. An indictment is multiplicious when it charges a single o ffense in several counts. "The vice of multiplicity is that it may lead to multiple sentences for the same offense." United States v. Street , 66 F.3d 969, 975 (8th Cir. 199 5) (quoting United States

v. Kazen bach , 824 F.2d 649, 651 (8th Cir. 1987) (further citation s omitted)). "[W]here the same act or transaction constitutes a violation of two distinct statu tory provisions, the test to be applied to determine whether th ere are two offenses or only one, is whether each provisio n requires proof of a fact which the other does no t." Blockburger v. United States , 284 U.S. 299, 304 (1932). The Blockburger test is me t "notwithstanding a substantial overlap in the proof offered to establish the crimes." Iannelli v. United States , 420 U.S. 770, 785 n.17 (1975). Wilkinson was charged in one count w ith embezzlement of tribal funds in vio lation of 18 U.S.C. § 1163 (1994), in two separate counts wit h mis application of tribal funds in violation of 18 U.S.C. § 666(a)(1)(A ) (199 4), and in two additional counts with making false statements i n violation of 18 U.S.C. § 1001 (1994). After reading and comparing the three statutes, it is apparent that each requires proof of several facts not required to establish the others. Likewise, the separate counts under § 666(a)(1)(A) relate to two distinct violations of the statute, as do the separate counts under § 1001. While overlapping evidence was presented to prove the violation of each count, this fact doe s not transform a properly charged indictment in to an impermissibly multiplicious one. Because each charge required proof of at least one element th at the others did not, the indictment against Wilkinson was not multiplicious

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and the District Court did not err by denying Wilkinson's motion to dismis s or consolidate the counts. IV. Wilkinso n makes a related argument that, because each count of th e superseding indictment contained "multiple theories" upon which the jury could base its decision, the jury was permitted to render an ambiguou s general verdict. In support of his "multiple theories" argument, Wilkinso n contends t hat Count I, for example, charged him "under at least thre e diffe rent theories -- embezzlement, misapplication of funds, an d

con version." Appellant's Br. at 9. Count I charged Wilkinson with a viola tion of 18 U.S.C. § 1163 (1994), which provides in pertinent par t that, "[w]hoever embe zzles . . . knowingly converts to his use or the use of another, [or] willfully misapplies" tribal funds "[s]hall be fined unde r this title , or imprisoned." Count I and, in fact, all counts of th e superseding indictment, track the applicable statutory language. Wilkinson draws our attention to United States v. Goodner Bros

. Aircraft, Inc. , 966 F .2d 380, 384 (8th Cir. 1992), cert. denied , 506 U.S. 1049 (1993), in support of his ambiguity attack on the general verdict , arguing that "when evidence supports a jury verdict on one ground, but no t another, and it is impossible to ascertain which ground was relied upon in reaching the verdict, that verdict must be set a side." Appellant's Br. at 10. Wilkinson's reliance on Goodner and other s imilar cases is misplaced. In the first place, we are not persuaded that on any of the counts o f conviction the evidence is insufficient to suppo rt the jury verdict on any of the alternative statutory grounds charged in the indictment. Moreover, in G oodner and the other cases Wilkinson cites, a guilty verdict wa s overturned because th e jury was presented with multiple theories on which to base c onviction and one of the theories was legally incorrect. See , e.g. , Goo dner , 966 F.2d at 384. In those circumstances, because it wa s impossible to know whether the jury based its ve rdict on a sound theory or

on the legally incorrect theory, the conviction was overturned. See, e.g. , id. These

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cases, however, do not support Wilkinson's asser tion that the verdict must be set aside when the evidence is insufficient to support a general verdic t
as to one of a number of legally correct theories submitted to the jury, even though the evide nce is sufficient to support the verdict on at least

one of the theories. In Turner v. United States , 396 U.S. 398, 420 (1970) , the Sup reme Court held that "when a jury returns a guilty verdict on a n indic tment charging several acts in the conjunctive, . . . the verdic t stands if the evidence is sufficient with respect to any one of the acts charged." See also Griffin v. United States , 502 U.S. 46, 58-60 (1991 ) (noting that general verdict cannot be set aside simply because one of the possible bases of con viction is unsupported by adequate evidence). Here, there is no allegation, nor could there be, that any of the "theories " under which Wilkinsonwas charged is legally incorrect. Consequently, we conclude that Wilkinson's "multiple theories" argument must fail.

V.

Wi lkinson next argues that the government presented insufficien t evidence t o establish that he had lawful possession over the funds h e allegedly embezzled, converted, or misapplied; that the funds involved wer e tribal fu nds; or that he made material false statements. On review, w e must examine the evid ence in a light most favorable to the government and uphold the convictionif a reasonable-minded jury could have found guilt beyond a reasonable doubt. See United States v. Easley , 70 F.3d 65, 6 7 (8th Cir. 1995), cert. denied , 116 S. Ct. 1338 (1996); United States v

. Whit aker , 848 F.2d 914, 916 (8th Cir. 1988) (noting that evidence i s suffic ient if "there is substantial evidence to support the jury' s verdict"). We conclu de that the government presented sufficient evidence for the jury to return a guilty verdict on all counts of the indictment. The indictment charged in Count I that Wilkinson "did embezzle , willfully misapply, a nd knowingly convert" tribal funds to his own use in violation of § 1163. Wilkinson argues that, because the indictment charge d in the conjunctive and the

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government failed to prove that he was initially in lawful possession of the funds, a prerequisite to a conviction for em bezzlement, his conviction must be set aside. We disagree. Although the indictment charged in the conjunctive, "[p]roof of any one of the violations charged conjunctively in the indictment wil l generally sustain a conviction." United States v. Vickerage , 921 F.2d 143, 147 (8th Cir. 1990). Furthermore, even if th e govern ment failed to prove that Wilkinson was initially in lawfu l possession of the funds, a proposition with which we do not necessaril y agree, the government nevertheless presented sufficient evidence t o establish that Wilkinson improperly misapplied or converted the funds to his own use. Lawful possession of funds is unnecessary to support a convictio n based on misapplication or conversion under § 11 63. As to misapplication, Wilkinson offers us no authority for the proposition that lawful possessio n is a n essential element of misapplication under § 1163, but there i s auth orityfor the contrary proposition. See, e.g. , United States v

. Hazeem , 6 79 F.2d 770, 772 (9th Cir.), cert. denied , 459 U.S. 848 (1982 ) (noting that misappli cation does not require previous lawful possession). As to conversion, Wilkinson relies on United Sta tes v. Hill , 835 F.2d 759, 764 (10th Cir. 1987), which, citing Morissette v. United States , 342 U.S. 246, 272 (1952), held that "[o]ne who comes into possession of property by law ful means, but afterwards wrongfully exercises dominion over tha t propertyagainst the rights of the true owner, commits conversion." W e cannot agree with the Tenth Circuit's, or Wilkinson's, definition o f conversion. In Morissette , the Supreme Court explained the broader nature of conversion as contrasted with stealing. The Court noted, "Probabl y every stealing is a conversion, but certainly no t every knowing conversion is a stealing. . . . Conversion . . . may be con summated without . . . any wrongful taking, where the initial possession by the converter was entirel y lawful." Id. at 271-72 (emphasis added). Based on this discussion i n Morissette , we cannot conclude that a conviction for conversion requires initia l lawful possession of another's property. The knowing an d unauth orized exercise of dominion over another's property, thoug h possession is wrongful in the inception, is no less a conversion than is the knowing and unauthorized

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exercise of dominion over another's property after possession is lawfully obtained. See also 18 Am. Jur. 2d Conversion § 30 (1985) ("The unlawful taking of goods out o f the possession of the owner with intent to convert them to the use of the taker is clearly a conver sion."). Consequently, we conclude that Wilkinson was not required to be i n lawful possession of the funds in order to be convicted under § 1163 of either misapplication o r conversion. VI. Wilkinson next argues that the government abused the grand jur y process by refusing t o disclose the testimony of an FBI special agent who was the sole witness before the grand jury. The government counters that it did not release this transcript because it did not intend to, and did not in fact, call the agent as a witness during Wilkinson's trial. In an att empt to obtain copies of this testimony, Wilkinson served a subpoen a duces tecum on the government. A motion to quas h the subpoena was granted after the government stated that Wilkinson had been provided with copies of interviews and doc uments used during the agent's grand jury testimony, and that it was not required to release the transcript of the testimony. Grand jury transcript s need only be released by the government insofar as required under the Jencks Act, 18 U.S.C. § 3500 (1994), which provides: "n o statement or report i n the possession of the United States which was made bya Government witness . . . shall be the subject of subpena, discovery

or inspection until said witness has testified on direct examination in th e trial o f the case," id. § 3500(a). While the Federal Rules of Crimina l Proc edure authorize disclosure of grand jury transcripts under certai n circum stances, see Fed. R. Crim. P. 6(e)(3), parties seeking suc h disclosure "must show a 'particularized need,' and the decision to permit dis closure lies within the sound discretion of the trial judge," Unite d States v. Benson , 760 F.2d 862, 864 (8th Cir.), cert. denied , 474 U.S. 858 (1985). We cannot co nclude that the District Court abused its discretion in refusing to order disclosure of the special agent's grand jury testimony given that she did no t testify at trial and that Wilkinson failed to show a particularized need for this testimony.

## -12- Wilkinson's related argument that it was error for the grand jury to indict ba sed solely on the FBI agent's testimony is without merit. Se e United States v. Levine , 700 F.2d 1176, 1179 (8t h Cir. 1983) (holding that grand jury may indict on whatever evidence is laid before it, even evidenc e that would be inadmissible at trial). VII. Wilkinsonalso argues that during the trial the District Court made inappropriate comments that prejudiced the jury and affected the outcome of the trial. Because Wilkinson failed to object to these comments a t trial, we review for plain error. Wilkinson tak es issue with two comments made by the District Court in the presence of the jury. The Tribe's credi t officer, who worked closely with Wilkinson, testified on direct examinatio n that the handwriting appearing on the consulting agreement was Wilkinson's

. During cross examination of the credit officer, the District Court stated, "You mean those terms that are in Mr. Wilkinson' s handwriting?" Trial Tr. Vol. I at 164. Wilkinson argues that this comment effectively precluded the j ury from making a determination that the handwriting was no t Wilkinson's. This wi tness also identified as Wilkinson's the handwriting

on the claims submitted on Kaye's behalf for reimbursement of mileag e expenses and payment of hourly wages. The credit officer further testifie d that, according to the reports, Kaye worked each and every day in January, including weekends, except for January 25. The District Court remarked, "I have this terrible sense of humor, sir, but January 25th isn't a holida y
on the res ervation, is it?" Id. at 173. Wilkinson argues that thi s comment reflected the District Court's bias against him and affected the outcome of his trial. We no te that the District Court cautioned the jury before openin g statements that "Questions from me are not evidence. Pleas [sic] do not

assume that I hold any opinion on matters to which my questions may have related." Trial Tr. Vol. I at 31. We hesitate to disturb a judgment "'by

reason of a few isolated, allegedly prejudicial comments of a tria l judge.'" United States v. Lueth , 807 F.2d 719, 727 (8th Cir. 1986)

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(quoting United States v. Bland , 697 F.2d 262, 265 (8th Cir. 1983)). We conclu de that the comments identified by Wilkinson, if objectionable a t all, certainly do not amount to plain error requiring reversal.

VIII.
Although we forego discussion of Wil kinson's remaining arguments, we have co nsidered carefully these arguments and find them to be withou t merit.

Wilkinson's convictions are affirmed.

A true copy.

Attest:

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