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. ARNOLD, Chief Judge, BOWMAN and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

___________

BOWMAN, Circuit Judge.

A jury found Wilbur Dale Wilkinson guilty of embezzling, misapplying,

and converting tribal funds from an Indian tribal organization in violation

of 18 U.S.C. § 1163 (1994); misapplying funds under the care, custody, and

control of an Indian tribal government receiving federal grants in excess

of $10,000 in violation of 18 U.S.C. § 666(a)(1)(A) (1994); knowingly and

willfully making false material statements in violation of 18 U.S.C. § 1001

(1994); and aiding and abetting the above activities 
The Honorable Patrick A. Conmy, United States District Judge for the District 1

of North Dakota.

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in violation of 18 U.S.C. § 2 (1994). Having been sentenced by the

District Court, Wilkinson appeals his convictions. We affirm. 1

I. 

The following facts are based on the evidence, with disputed

questions of fact deemed to have been resolved by the jury in a manner that

supports its verdict. Wilkinson was Chairman of the Three Affiliated

Tribes (the Tribe) at all times relevant to the illegal activities charged

in the indictment. The Tribe is located on the Fort Berthold Indian

Reservation in North Dakota and qualifies as an Indian tribal organization

under 18 U.S.C. § 1163 (1994). In July 1991, Wilkinson 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 hiring

the individual consultant. As a result of this application, the Tribe

received approximately $68,000 in 1992 and $105,000 in 1993. The $105,000

disbursement was made under the condition that the Tribe comply with

special reporting and supervision requirements imposed by the BIA. These

conditions were placed on the receipt of these funds after the Tribe

neglected to comply with standard reporting procedures after receiving the

$68,000 payment in 1992. A Commitment Order between 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 name

"Three Affiliated Tribes and the Bureau of Indian Affairs, Technical

Assistance." Signatories on the account included 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, Kaye

Wilkinson, and, promising to train her in the consulting business, offered

her the position described in the grant application. In tendering to Kaye

the proposed consulting agreement between her and the Tribe, Wilkinson

represented, contrary to the terms of the proposed agreement, that she

would receive ten percent of the proceeds earned under the agreement and

he would receive the remaining ninety percent. Based on these

representations, Kaye accepted the position and executed the consulting

agreement, which provided that she would perform the consulting duties in

return for an hourly wage and reimbursement of expenses. 

Wilkinson presented this consulting agreement to tribal officials and

the BIA superintendent and, without Kaye's knowledge, represented to them

that Kaye needed a $20,000 advance for start-up expenses. Pursuant to

Wilkinson's direction, the tribal credit officer, a signatory of the

supervised account, prepared and signed a $20,000 check made payable to

Kaye and obtained the requisite counter-signature of the BIA

superintendent. Wilkinson 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, and

return $18,000 to Wilkinson in cash. Spencer Jr., surprised at the size

of the payment and worried about the potential tax consequences of the

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

him for his failure to obtain cash, but grudgingly accepted the personal

check. 
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Kaye performed no consulting work, received no training from

Wilkinson, and submitted no progress reports to the Tribe or the BIA for

the next several months. Eventually, however, BIA officials began to

wonder whether any work was being performed to justify the $20,000 advance

payment made to Kaye. Officials called Kaye on a number of occasions

inquiring about her progress on the delinquent loan accounts and Kaye,

because she was expecting guidance from her uncle, called Wilkinson who

informed her that he was on top of the situation.

In April 1994, Wilkinson delivered to Kaye handwritten reports

summarizing the current status of some problem loans and requested that she

type the reports. The information contained in these reports was derived

from files obtained by Wilkinson from the tribal loan office and did not

signify any progress on the resolution of the delinquent loans. Once

typed, these reports, which provided little if any new information, were

submitted to the BIA and represented by Wilkinson to be Kaye's work product

under the consulting agreement.

Also in April 1994, Wilkinson procured seven blank consultant claim

statements and had them delivered to Kaye at work. She was directed to

sign the blank documents and return them to Wilkinson, which she did.

Wilkinson then completed these forms with fictitious numbers of miles

driven and hours worked by Kaye in relation to the consulting agreement for

each month from October 1993 through April 1994. Wilkinson then presented

these claim statements, totaling $7,972.25, for verification to tribal

officials who signed them at Wilkinson's direction. A check was issued by

the tribal credit officer and, after a cursory inquiry into the legitimacy

of the claims, the BIA superintendent eventually counter-signed the expense

check. Wilkinson delivered the check, issued in Kaye's name, to her home

and, because Kaye was not there, presented the check to Spencer Jr. and

insisted that he keep $2,000 for Kaye and return the remainder of the funds

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 investigation was launched by BIA and FBI officials, leading to

Wilkinson's indictment by a grand jury and his subsequent trial. 

II.

Wilkinson first argues that the District Court abused its discretion

by withdrawing two exhibits from evidence at the close of his case. Prior

to trial, in an effort to expedite the presentation of the documentary

evidence, the parties jointly prepared a binder containing the exhibits

each side intended to rely on during trial. The prosecution explained, and

defense counsel agreed, that although the foundation for these exhibits had

been established, their relevancy remained at issue and was to be

determined during the trial. The District Court understood that the

parties had "reserved the 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 of

sale signed by Wilkinson and attested to by his brother, Virgil Wilkinson,

purporting to establish that Wilkinson sold a 1992 Chevrolet Camaro to his

nephew, Spencer Wilkinson, Jr. for $18,000. Also 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 that

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 to

Wilkinson was repayment of a $6,000 loan made by Wilkinson to Spencer Jr.

and a $1,792.25 earnest money payment from Spencer Jr. to Wilkinson for

farm equipment. Spencer Jr. specifically refuted these explanations for

the checks, denying that he had ever borrowed money from Wilkinson and

asserting that his father, Spencer Wilkinson Sr., rather than he, had

purchased the Camaro from Wilkinson. Defense 
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counsel did not attempt to impeach this testimony through the use of

Exhibits 32 or 47 nor did defense counsel call Virgil, 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 presented 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 were

written to Wilkinson for legitimate reasons and to discount the

authenticity of the bill of sale and the cash receipt included in the

evidence binder because neither document had been published or explained

to the jury during trial. 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

defense" and that "if . . . a kickback occurs, it is no defense that it

occurred to pay a preexisting debt or obligation." Id. Vol. III at 428.

Evidence is relevant if it has "any tendency to make the existence

of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence." Fed. R.

Evid. 401. Relevant evidence is generally admissible, while irrelevant

evidence is not. See Fed. R. Evid. 402. A district court's decision to

exclude evidence is reviewed for abuse of discretion, and "[w]e will

reverse only if the abuse is clear, and if the parties' substantive rights

are affected." Yannacopoulos v. General Dynamics Corp., 75 F.3d 1298, 1301

(8th Cir. 1996). The District Court excluded Exhibits 32 and 47 as

irrelevant after determining that even if the documents tended to establish

that Spencer Jr. owed Wilkinson a preexisting debt, repayment of that debt

by structuring an illegal kickback scheme operates as no defense to the

crimes charged in the indictment. 

The parties only conditionally stipulated to the documentary

evidence, specifically reserving the issue of the relevance of each exhibit

for later determination 
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by the District Court. The District Court did not abuse its discretion by

excluding Exhibits 32 and 47 on the ground that they were irrelevant to any

legitimate defense. 

III.

Wilkinson next argues that the superseding indictment was

multiplicious and that the District Court erred in failing to dismiss or

consolidate the counts. We disagree. An indictment is multiplicious when

it charges a single offense 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. 1995) (quoting United States

v. Kazenbach, 824 F.2d 649, 651 (8th Cir. 1987) (further citations

omitted)). "[W]here the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision

requires proof of a fact which the other does not." Blockburger v. United

States, 284 U.S. 299, 304 (1932). The Blockburger test is met

"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 with embezzlement of tribal funds

in violation of 18 U.S.C. § 1163 (1994), in two separate counts with

misapplication of tribal funds in violation of 18 U.S.C. § 666(a)(1)(A)

(1994), and in two additional counts with making false statements in

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 does not transform a properly

charged indictment into an impermissibly multiplicious one. Because each

charge required proof of at least one element that 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 dismiss

or consolidate the counts.

IV.

Wilkinson makes a related argument that, because each count of the

superseding indictment contained "multiple theories" upon which the jury

could base its decision, the jury was permitted to render an ambiguous

general verdict. In support of his "multiple theories" argument, Wilkinson

contends that Count I, for example, charged him "under at least three

different theories -- embezzlement, misapplication of funds, and

conversion." Appellant's Br. at 9. Count I charged Wilkinson with a

violation of 18 U.S.C. § 1163 (1994), which provides in pertinent part

that, "[w]hoever embezzles . . . knowingly converts to his use or the use

of another, [or] willfully misapplies" tribal funds "[s]hall be fined under

this title, or imprisoned." Count I and, in fact, all counts of the

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 not

another, and it is impossible to ascertain which ground was relied upon in

reaching the verdict, that verdict must be set aside." Appellant's Br. at

10. Wilkinson's reliance on Goodner and other similar cases is misplaced.

In the first place, we are not persuaded that on any of the counts of

conviction the evidence is insufficient to support the jury verdict on any

of the alternative statutory grounds charged in the indictment. Moreover,

in Goodner and the other cases Wilkinson cites, a guilty verdict was

overturned because the jury was presented with multiple theories on which

to base conviction and one of the theories was legally incorrect. See,

e.g., Goodner, 966 F.2d at 384. In those circumstances, because it was

impossible to know whether the jury based its verdict 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 assertion that the verdict must

be set aside when the evidence is insufficient to support a general verdict

as to one of a number of legally correct theories submitted to the jury,

even though the evidence 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 Supreme Court held that "when a jury returns a guilty verdict on an

indictment charging several acts in the conjunctive, . . . the verdict

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 conviction is unsupported by adequate evidence). Here,

there is no allegation, nor could there be, that any of the "theories"

under which Wilkinson was charged is legally incorrect. Consequently, we

conclude that Wilkinson's "multiple theories" argument must fail.

V.

Wilkinson next argues that the government presented insufficient

evidence to establish that he had lawful possession over the funds he

allegedly embezzled, converted, or misapplied; that the funds involved were

tribal funds; or that he made material false statements. On review, we

must examine the evidence in a light most favorable to the government and

uphold the conviction if a reasonable-minded jury could have found guilt

beyond a reasonable doubt. See United States v. Easley, 70 F.3d 65, 67

(8th Cir. 1995), cert. denied, 116 S. Ct. 1338 (1996); United States v.

Whitaker, 848 F.2d 914, 916 (8th Cir. 1988) (noting that evidence is

sufficient if "there is substantial evidence to support the jury's

verdict"). We conclude 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, and knowingly convert" tribal funds to his own use in

violation of § 1163. Wilkinson argues that, because the indictment charged

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 embezzlement, 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 will generally sustain a conviction." United States v.

Vickerage, 921 F.2d 143, 147 (8th Cir. 1990). Furthermore, even if the

government failed to prove that Wilkinson was initially in lawful

possession of the funds, a proposition with which we do not necessarily

agree, the government nevertheless presented sufficient evidence to

establish that Wilkinson improperly misapplied or converted the funds to

his own use. 

Lawful possession of funds is unnecessary to support a conviction

based on misapplication or conversion under § 1163. As to misapplication,

Wilkinson offers us no authority for the proposition that lawful possession

is an essential element of misapplication under § 1163, but there is

authority for the contrary proposition. See, e.g., United States v.

Hazeem, 679 F.2d 770, 772 (9th Cir.), cert. denied, 459 U.S. 848 (1982)

(noting that misapplication does not require previous lawful possession).

As to conversion, Wilkinson relies on United States 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 lawful means, but afterwards wrongfully exercises dominion over that

property against the rights of the true owner, commits conversion." We

cannot agree with the Tenth Circuit's, or Wilkinson's, definition of

conversion. In Morissette, the Supreme Court explained the broader nature

of conversion as contrasted with stealing. The Court noted, "Probably

every stealing is a conversion, but certainly not every knowing conversion

is a stealing. . . . Conversion . . . may be consummated without . . . any

wrongful taking, where the initial possession by the converter was entirely

lawful." Id. at 271-72 (emphasis added). Based on this discussion in

Morissette, we cannot conclude that a conviction for conversion requires

initial lawful possession of another's property. The knowing and

unauthorized exercise of dominion over another's property, though

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 of the possession of the owner with intent to convert

them to the use of the taker is clearly a conversion."). Consequently, we

conclude that Wilkinson was not required to be in lawful possession of the

funds in order to be convicted under § 1163 of either misapplication or

conversion. 

VI.

Wilkinson next argues that the government abused the grand jury

process by refusing to 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

attempt to obtain copies of this testimony, Wilkinson served a subpoena

duces tecum on the government. A motion to quash the subpoena was granted

after the government stated that Wilkinson had been provided with copies

of interviews and documents used during the agent's grand jury testimony,

and that it was not required to release the transcript of the testimony.

Grand jury transcripts need only be released by the government insofar as

required under the Jencks Act, 18 U.S.C. § 3500 (1994), which provides: "no

statement or report in the possession of the United States which was made

by a Government witness . . . shall be the subject of subpena, discovery

or inspection until said witness has testified on direct examination in the

trial of the case," id. § 3500(a). While the Federal Rules of Criminal

Procedure authorize disclosure of grand jury transcripts under certain

circumstances, see Fed. R. Crim. P. 6(e)(3), parties seeking such

disclosure "must show a 'particularized need,' and the decision to permit

disclosure lies within the sound discretion of the trial judge," United

States v. Benson, 760 F.2d 862, 864 (8th Cir.), cert. denied, 474 U.S. 858

(1985). We cannot conclude that the District Court abused its discretion

in refusing to order disclosure of the special agent's grand jury testimony

given that she did not testify at trial and that Wilkinson failed to show

a particularized need for this testimony. 
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Wilkinson's related argument that it was error for the grand jury to

indict based solely on the FBI agent's testimony is without merit. See

United States v. Levine, 700 F.2d 1176, 1179 (8th Cir. 1983) (holding that

grand jury may indict on whatever evidence is laid before it, even evidence

that would be inadmissible at trial). 

VII.

Wilkinson also 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 at

trial, we review for plain error. Wilkinson takes issue with two comments

made by the District Court in the presence of the jury. The Tribe's credit

officer, who worked closely with Wilkinson, testified on direct examination

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 jury from making a determination that the handwriting was not

Wilkinson's. This witness also identified as Wilkinson's the handwriting

on the claims submitted on Kaye's behalf for reimbursement of mileage

expenses and payment of hourly wages. The credit officer further testified

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 holiday

on the reservation, is it?" Id. at 173. Wilkinson argues that this

comment reflected the District Court's bias against him and affected the

outcome of his trial. 

We note that the District Court cautioned the jury before opening

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 trial

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

conclude that the comments identified by Wilkinson, if objectionable at

all, certainly do not amount to plain error requiring reversal. 

VIII.

Although we forego discussion of Wilkinson's remaining arguments, we

have considered carefully these arguments and find them to be without

merit. 

Wilkinson's convictions are affirmed. 

A true copy.

Attest:

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