UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
April 30, 1985
UNITED STATES OF AMERICA
MARY TREADWELL, A/K/A MARY T. BARRY, A/K/A MARY T. WILLIAMS, APPELLANT 1985.CDC.87
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal Action No. 82-0045).
Tamm and Bork, Circuit Judges, and McGowan, Senior Circuit Judge. Opinion for the court filed by Circuit Judge Tamm.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE TAMM
In 1982, the grand jury for the District of Columbia indicted appellant Mary Treadwell, Robert E. Lee, Joan M. Booth, Charles W. Rinker, Jr., and Ronald S. Williams on one count of conspiracy, 18 U.S.C. § 371 (1982), sixteen counts of making false statements, 18 U.S.C. § 1001 (1982), seven counts of mail fraud, 18 U.S.C. § 1341 (1982), and one count of wire fraud, 18 U.S.C. § 1343 (1982). Appellant was also charged with three counts of income tax evasion, 26 U.S.C. § 7201 (1982). *fn1
On July 29, 1983, a jury found Treadwell guilty of one count of conspiracy and seven counts of making false statements and acquitted her of three counts of tax evasion, one count of wire fraud, and nine counts of making false statements. United States District Judge John G. Penn denied her subsequent motions for a judgment of acquittal and a new trial. 594 F. Supp. 831. The court sentenced Treadwell to three years' imprisonment and imposed a fine of $40,000.
Treadwell appeals, claiming, inter alia, that the trial court erred by: (1) denying her motion for acquittal on the conspiracy count because the evidence was insufficient; (2) delivering misleading and prejudicial jury instructions regarding the object of the conspiracy and the use of co-conspirator statements; and (3) denying her motion for a new trial because a document not in evidence was sent to the jury room. For the reasons given below, we affirm the conviction. I. BACKGROUND
A. The Government's Case
Appellant in the mid-1970s was the chief executive officer of P.I. Properties , a nonprofit real estate ownership and management firm. Co-conspirators Robert Lee and Joan Booth, Treadwell's sister, served on P.I.'s Board of Directors and were employed as project managers. Co-conspirator Ronald Williams, appellant's fiance, and later, husband, at one time was engaged by P.I. to perform accounting services. The government claimed that the conspirators used P.I. to acquire control of Clifton Terrace, a government-sponsored housing project, to misuse the project's assets for the enrichment of themselves and their other businesses, and to conceal these activities from government authorities.
Clifton Terrace is a low-income housing project in northwest Washington, D.C., presently owned by the United States Department of Housing and Urban Development ("HUD" or "the Department"). It has always suffered from a variety of problems typical of such projects -- high crime, low tenant morale, and rental receipts inadequate to cover project expenses. Trial Transcript (Tr.) 2053-56, 2074-76. Hoping to revitalize the project, the Department in the spring of 1974 agreed to sell Clifton Terrace to P.I. Properties. Tr. 1961-63, 2133-35. After passage of title, however, the property remained subject to a forty-year, HUD-held mortgage and a regulatory agreement providing the Department with a measure of control during the mortgage period. The agreement required the project to submit monthly financial reports and annual audited financial statements and prohibited it from taking certain actions, including the collateralization of rents and tenant security deposits, without Department approval. Gov. Exh. 624.
Treadwell did not supervise the daily operations of P.I. or Clifton Terrace but instead delegated those responsibilities to Robert Lee. He supervised an on-site staff consisting principally of Joan Booth and Zellene Laney, the bookkeeper. Treadwell exercised general supervisory authority and provided specific instructions regarding the project by holding regular meetings with Lee and Booth. Tr. 2403-04. Treadwell did not personally manage Clifton Terrace because, in addition to P.I., she was the chief executive officer of four other corporations: Youth Pride, Inc. ("Pride"), Pride Economic Enterprises , Pride Environmental Services , and T. Barry Associates ("T. Barry"), the last three for-profit organizations. *fn2
Treadwell's other businesses enjoyed substantial benefits as a result of P.I.'s acquisition of Clifton Terrace. *fn3 PEE benefitted the most conspicuously. In November 1974, P.I. began providing management services to the PEE-owned Buena Vista apartments, using the Clifton Terrace office staff, supplies, and facilities to do so. Clifton Terrace paid P.I. a monthly management fee of seven percent of gross income as compensation for its services. Buena Vista, however, paid no fee because PEE, its owner, was $200,000 in debt and could not afford it. Tr. 2432-35. Instead, PEE's directors, appellant among them, passed a resolution to compensate P.I. by a transfer of PEE stock. Tr. 2964-65. In effect, however, Clifton Terrace directly subsidized Buena Vista's management costs. *fn4
In April 1975, appellant and Lee created a new PEE division, the Special Police, in order to obtain a contract to provide security services for Clifton Terrace. *fn5 Fees paid to the Special Police from Clifton Terrace funds were a substantial source of revenue for the conspirators and their businesses. *fn6 Tr. 2661-76, 3262. In addition to their Clifton Terrace duties, the Special Police were regularly used to perform personal services for the conspirators *fn7 and to provide security services at Buena Vista and Kenesaw. *fn8 Tr. 2642, 2648, 2654, 3129-32, 3192, 3206. No other security personnel covered the needs of Clifton Terrace when the guards performed these additional tasks during their assigned shifts. Tr. 2654-55, 3133, 3195, 3200, 3209, 3211. In addition to the Special Police contract, PEE's landscaping division received a total of $18,617 in payments from Clifton Terrace, in some instances for work either wholly or partially unperformed. Tr. 2612-20.
Between June and December 1976, P.I. obtained three bank loans by improperly pledging Clifton Terrace tenant security deposits as collateral. Two of the loans were deposited in PES bank accounts and used to fund new business ventures. A portion of another loan was used to acquire property for Sticks and Stones, the for-profit housing rehabilitation company set up by Treadwell and Lee in 1976. Neither the loans nor the collateralization of the security deposits were reported to HUD on the project's monthly accounting reports ("the ABC's").9 Tr. 3354-95, 3455-73, 3943-56.
Booth and Lee routinely helped themselves to Clifton Terrace funds for a plethora of personal and non-project purposes. Heating oil for Buena Vista was paid for on several occasions with Clifton Terrace operating funds, while Clifton Terrace tenants were often without heat during the same periods. Tr. 2460, 2483-84, 2499, 2500-11, 3138, 3200-01. Project funds were used to pay Booth's legal fees in a child custody suit and for painting and carpeting the offices of the Kiosk Advertising Agency, another company owned by appellant. Significantly, neither Booth nor Lee had any ownership or other interest in Kiosk.10 In addition, Lee on several occasions misappropriated checks sent to Clifton Terrace by the company owning the project's coin-operated washers and dryers. Tr. 2601, 3003-05. Zellene Laney testified that after she brought the matter to Booth's attention, the latter telephoned appellant in Laney's presence to inform her of Lee's misconduct. Immediately thereafter, Booth told Laney that appellant was aware of Lee's activities and that she told her (Booth) that she (appellant) and Lee were going to start a new business with the money. Tr. 2601-03. Many of these improper expenditures were either misreported or not reported on the monthly ABC reports.
By the summer of 1976, the Department had become increasingly concerned about the financial health of the project. P.I. was behind in its mortgage payments and had provided HUD with neither a 1975 audited financial statement or the monthly ABC's required by the regulatory agreement. Tr. 3552-57, 3560-61, 3699-3700. Appellant responded to HUD's increased scrutiny by employing her fiance, Ronald Williams, an accountant, and two of his professional associates to review the project's books in preparation for an audit. Tr. 2470-71, 3418-24, 3430, 3435-38. Williams and his associates were not qualified to conduct such an audit under HUD rules, Tr. 3426-27, 3441-42, and appellant did not reveal her personal relationship with Williams to HUD. Tr. 3654-55, 3710-13. Although Williams never performed the audit and HUD later informed appellant that Williams would not be an acceptable auditor under its rules, three payments totaling $5,304 were made to Ronald Williams as compensation for his accounting services. Tr. 2581-89, 3778-81.
Despite repeated requests from HUD and repeated promises by appellant, no audit was forthcoming and the conspirators frequently resisted HUD's efforts to monitor the project's books. Tr. 3638-46, 3781-82. Laney testified that appellant and the co-conspirators in late 1976 and early 1977 destroyed and altered invoices and checks to conceal the various non-project disbursements in the event HUD conducted an audit. Tr. 2471-72, 2476, 2780-82.
Its patience exhausted, the Department finally conducted a partial audit in the spring of 1977.11 In response to HUD's findings, appellant and Laney prepared the overdue ABC's for the past year, determined which expenditures were to be reimbursed, and submitted the report and reimbursement checks to HUD that summer. At HUD's behest, Treadwell also removed Lee as general manager of Clifton Terrace and began to take a more active role in supervising the project's daily operations. Tr. 3736-37, 4824. After another year in which the financial and physical condition of the project continued to deteriorate, and during which appellant continued to promise and then fail to deliver the required audited financial statements, the Department in July 1978 foreclosed on the property. Tr. 3867-68, 3872-73.
B. The Defense
It was conceded by both sides that both Booth and Lee misappropriated project funds on numerous occasions. Appellant claimed, however, that because she was not involved in the daily management of the project, she was completely unaware of the wrongdoing of her subordinates. Once she learned of their misdeeds in the spring of 1977, she took steps to rectify the damage done by reimbursing the project and firing Lee. She emphasized that there was no direct evidence that she had ever agreed to or authorized their misuse of Clifton Terrace assets. She also proffered evidence that the management fees paid to P.I., the monies received by PEE Special Police, and the compensation she received as an officer from these sources were entirely reasonable and proper. She also emphasized a number of apparent inconsistencies and errors in the testimony of Zellene Laney, the project's former bookkeeper and the government's principal witness. II. SUFFICIENCY OF THE EVIDENCE
Appellant contends that because the government failed to sustain its burden of proof, the trial court erred in denying her motion for acquittal on the conspiracy count. In support of her claim, she argues that the government offered no proof that she agreed to a conspiracy to defraud the United States by misappropriating, misapplying, diverting, and stealing project assets. She argues that, even if the government had successfully established her participation in concealment of the misappropriations from HUD, involvement in the cover-up of an already executed crime would not, standing alone, necessarily show participation in the main purpose of the conspiracy. See Grunewald v. United States, 353 U.S. 391, 404-05, 1 L. Ed. 2d 931, 77 S. Ct. 963 (1957). We reject these arguments and sustain the trial court's determination that the evidence of Treadwell's complicity in the main conspiracy was sufficient to support the jury's verdict.
In ruling on a motion for a judgment of acquittal, "the trial court must view the evidence in the light most favorable to the Government giving full play to the right of the jury to determine credibility, weigh the evidence and draw justifiable inferences of fact." United States v. Davis, 183 U.S. App. D.C. 162, 562 F.2d 681, 683 (D.C. Cir. 1977); accord, Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). Upon review, the appellate court must apply the same standard. See Crawford v. United States, 126 U.S. App. D.C. 156, 375 F.2d 332, 334 (D.C. Cir. 1967). Thus, the trial court may take the case from the jury "only when there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt." Davis, 562 F.2d at 683.
This case is troubling because the government's evidence against Treadwell was almost entirely circumstantial, and the majority of her actions were susceptible to logical and innocent explanations. In determining whether the government has met its burden of proof, however, no legal distinction may be drawn between direct and circumstantial evidence, id. at 684,12 since it is "the traditional province of the jury to assess the significance of circumstantial evidence, and to determine whether it eliminates all reasonable doubt." United States v. Staten, 189 U.S. App. D.C. 100, 581 F.2d 878, 883 (D.C. Cir. 1978). See also Glasser, 315 U.S. at 80 ("Participation in a criminal conspiracy need not be proved by direct evidence, a common purpose and plan may be inferred from a 'development and a collocation of circumstances.'" (citation omitted)). Similarly, the government, when using circumstantial evidence, need not negate all possible inferences of innocence that may flow therefrom. Holland v. United States, 348 U.S. 121, 139-40, 99 L. Ed. 150, 75 S. Ct. 127 (1954); United States v. Lewis, 200 U.S. App. D.C. 76, 626 F.2d 940, 951 (D.C. Cir. 1980).
To establish a criminal conspiracy under section 371, the government must prove beyond a reasonable doubt that: (1) two or more persons formed an agreement either to commit an offense against or defraud the United States; (2) the defendant knowingly participated in the conspiracy with the intent to commit at least one of the offenses charged or to defraud the United States; and (3) at least one overt act was committed in furtherance of the common scheme. See United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980); Pinkerton v. United States, 145 F.2d 252, 254 (5th Cir. 1945).
Treadwell argues that the government failed to prove the second element of the crime because she never authorized or agreed to any misappropriation of Clifton Terrace funds. Rather, she claimed throughout the trial that she was the innocent victim of the illegal misappropriations by Booth and Lee, that she never took funds directly from Clifton Terrace for personal use, and that when she learned of her subordinates' wrongdoing, she took steps to rectify the defalcations. Any efforts to conceal the misdeeds from HUD resulted from her desire to avoid the risk of foreclosure by remedying the problems personally, not for the purpose of furthering the main conspiracy.
The government's case, however, described a scheme whose contours were far broader than one involving simple theft from the Clifton Terrace till. Instead, the government sought to prove Treadwell's participation in a scheme that encompassed not only the brazen malefactions of Booth and Lee, but also a general pattern of self-dealing, conflicts of interest, and shoddy management practices through which the conspirators illegally enriched both themselves and their other businesses at the expense of Clifton Terrace. P.I. and the other Pride-affiliated companies entered into a series of questionable and self-dealing transactions detrimental to the interests of Clifton Terrace and its tenants. The Special Police contract, P.I.'s management of the Buena Vista and Kenesaw apartments, and the landscaping and gardening services paid for in full but only partially performed were prominent examples.
Appellant argues, however, that these transactions were not necessarily harmful to Clifton Terrace. She points out, for instance, that the PEE Special Police received less compensation than did the company that had formerly provided security services. Her argument misses the point. The situation created by these conflicts of interest in itself proved adverse to Clifton Terrace and its tenants. In every such transaction, there was an incentive to favor the interests of Treadwell's other companies over those of Clifton Terrace's tenants, and the evidence showed a consistent pattern in which that risk materialized. Zellene Laney testified, for example, that certain project expenses, including P.I.'s management fee and the Special Police security fee, were always paid even though expenses like fuel and electric bills were not. Tr. 2514-16. Clifton Terrace operating funds were used to decorate the offices of the Kiosk Advertising Agency and to purchase property for use by other Pride companies. Tenant security deposits were collateralized against loans P.I. obtained for the benefit of appellant's other businesses in violation of the HUD regulatory agreement. The salary Treadwell received from P.I., a $1,000 "bonus" Jamaican Christmas vacation received from the Special Police account, and other payments depended directly on the flow of Clifton Terrace funds. Former Special Police and Clifton Terrace employees testified that security personnel were routinely diverted from their duties at Clifton Terrace and used to perform personal services for the conspirators and security services for Buena Vista and Kenesaw. Similarly, payments were made to Ronald Williams, Treadwell's fiance, ostensibly for his work as an "independent" auditor auditing the Clifton Terrace accounts, even though no audit was ever completed by him,13 and neither he nor his firm were qualified, under applicable HUD regulations, to perform the work. In short, in every transaction there was a potential for improper favoritism, and as the government's case demonstrated, too often that potential was realized.
Treadwell claimed she knew nothing about any of the improper expenditures made by Booth and Lee. The jury knew, however, that appellant had a close personal relationship with her sister, Joan Booth, and was closely associated with Lee in this as well as other businesses. It heard testimony that she held regular meetings with Lee and Booth in order to supervise their management of the project. It knew from her own testimony that she had extensive experience as a government-grant entrepreneur and that she therefore was accustomed to obtaining government money to finance various "self-help" enterprises, managing those enterprises, and accounting to the government for how that money was spent. Combining these factors with the sheer magnitude of the abuses at Clifton Terrace, many involving other businesses that she controlled, would fully support a reasonable inference that Treadwell knew of and condoned her subordinates' malfeasance.
Finally, the government presented testimonial and documentary evidence that Treadwell attempted to conceal the extent of the wrongdoing from HUD by temporizing in the face of HUD's demands for audited financial statements and by destroying and altering invoices and reconciling checks so that the expenditures would appear to be proper Clifton Terrace disbursements. Treadwell claimed, however, that her efforts were directed solely toward rectifying the damage done by her subordinates and that the testimony of Zellene Laney that Treadwell altered and destroyed documents was "thoroughly impeached" on cross-examination. As we have stated, however, the government need not negate every inference of innocence that may flow from a given set of events. More important, it is the province of the jury to assess the credibility of witnesses, and the jury thus was entitled to believe Laney or disbelieve Treadwell as it deemed fit.
Based on the voluminous evidence presented and viewed in a light most favorable to the government, we find that the trial judge properly denied Treadwell's motion for acquittal on the conspiracy count. III. THE JURY INSTRUCTIONS
A. Object of the Conspiracy
Count One of the indictment, the conspiracy charge, purports to describe "the conspiracy" in paragraph 11 and the "object of the conspiracy" in paragraph 12:
11. From in or about May 1974 to in or about August 1978, within the District of Columbia and elsewhere, defendants MARY TREADWELL ROBERT E. LEE, JOAN M. BOOTH, CHARLES W. RINKER, JR. and RONALD S. WILLIAMS did knowingly and willfully conspire, combine, confederate and agree together and with each other
(a) To commit offenses against the United States, including:
(1) Violations of Title 18, United States Code, Section 1001, Falsifying and Concealing Material Facts and Making False Statements to a Department or Agency of the United States, as alleged in Counts Two through Seventeen of this Indictment;
(2) Violations of Title 18, United States Code, Section 1343, Wire Fraud, as alleged in Count Eighteen of this Indictment; and
(b) To defraud the United States and its agencies of their lawful right to conduct their business and affairs, particularly HUD's housing programs for low and moderate income tenants and IRS' administration and enforcement of the tax laws of the United States, free from deceit, fraud, misrepresentation and theft. (r. 110 at 4-5).
OBJECT OF THE CONSPIRACY
12. It was the object of the conspiracy for the defendants to unjustly and illegally enrich themselves and the other businesses which they directed and controlled by using P.I. Properties to acquire Clifton Terrace and thereafter to misappropriate, misapply, divert and steal monies and assets from Clifton Terrace and the other housing projects which P.I. Properties owned or managed and to hide, conceal and cover up such misappropriation, misapplication, diversion and theft.
In its instructions to the jury, the trial court read most of Count One, including paragraphs 11 and 12, along with a general and detailed explanation of the law of criminal conspiracy taken from the standard District of Columbia Bar Association, Criminal Jury Instructions for the District of Columbia, No. 4.92 (3d ed. 1978). Appellant argues that this instruction failed to adequately explain to the jury that it was required to find a conspiracy with the single "object" set forth in paragraph 12.14 Because of this omission, the jury "had no way of knowing" that the critical issue in the case was "whether Mary Treadwell had conspired to misappropriate Clifton Terrace funds." Brief for Appellant at 57. The trial court compounded its error, appellant contends, by informing the jury that the conspiracy had many objects and the jury need only find that one of the illegal objects was contemplated in order to convict the defendant. As a result, each juror was able to convict the defendant for any one of several purported frauds and misdeeds described in the means and methods and overt acts paragraphs of the conspiracy count, in violation of appellant's right to a unanimous jury. Brief for Appellant at 55.
At the outset, it is important to state what is not at issue here. Appellant is not contesting the sufficiency of the grand jury's indictment, nor is she claiming that the proof offered at trial failed to conform to the allegations contained therein. For its part, the government does not dispute appellant's assertion that the government was required to plead and prove Treadwell's participation in a particular fraudulent scheme in order to prevail. Rather, appellant seems to claim that the instructions inadequately informed the jury that it was required to find the particular fraudulent scheme described in paragraph 12.
The existence of an "agreement" is the essential element of the statutory crime of conspiracy. As the Supreme Court stated in Braverman v. United States, 317 U.S. 49, 53, 87 L. Ed. 23, 63 S. Ct. 99 (1942), "the gist of the crime of conspiracy as defined by the statute is the agreement or confederation of the conspirators to commit one or more unlawful acts." Because it is the conspiratorial agreement that the statute punishes, a single agreement may have multiple objects.15 Id. 317 U.S. at 53-54. Thus, a single conspiracy may contemplate, as in this case, the violation of one or more federal statutes in addition to defrauding the United States.
Although the government in order to prove an agreement need not show that the conspirators agreed on the details of their criminal scheme, it is required to show the "essential nature of the plan." Blumenthal v. United States, 332 U.S. 539, 557, 92 L. Ed. 154, 68 S. Ct. 248 (1947). This is because the agreement itself is the crime, and "it is therefore essential to determine what kind of agreement or understanding existed as to each defendant." United States v. Borelli, 336 F.2d 376, 384 (2d Cir. 1964), cert. denied, 379 U.S. 960, 13 L. Ed. 2d 555, 85 S. Ct. 647 (1965). See also United States v. Perez, 489 F.2d 51, 62 (5th Cir. 1973), cert. denied, 417 U.S. 945, 41 L. Ed. 2d 664, 94 S. Ct. 3067, 94 S. Ct. 3068 (1974); United States v. Rosenblatt, 554 F.2d 36, 38 (2d Cir. 1977); United States v. Gleason, 616 F.2d 2, 16 (2d Cir. 1979), cert. denied, 444 U.S. 1082, 62 L. Ed. 2d 767, 100 S. Ct. 1037 (1980). Because the government is required to plead and prove that the alleged conspirators agreed to the same type of conduct, it cannot simply charge an offense by using the general language of the statute or the common law, but must accompany the generic language "'with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged.'" Hamling v. United States, 418 U.S. 87, 117-18, 41 L. Ed. 2d 590, 94 S. Ct. 2887 (1973) (quoting United States v. Hess, 124 U.S. 483, 487, 31 L. Ed. 516, 8 S. Ct. 571 (1888)). See also, United States v. Cruikshank, 92 U.S. (2 Otto) 542, 558, 23 L. Ed. 588 (1875).
Here, paragraph 11 follows the general statutory language of 18 U.S.C. 37116 and properly sets forth the multiple objects of the conspiracy: violations of 18 U.S.C. § 1001, violations of 18 U.S.C. § 1343, and defrauding the United States. Paragraph 12, along with the "means and methods" described in paragraphs 13-16,17 serves as the particularized description of the generic crimes charged in paragraph 11 and provides the "essential nature" of the conspiratorial agreement. Indeed, even without paragraph 12, paragraphs 13-16 provided a description of the nature of the agreement sufficiently specific to satisfy the legal standard -- and appellant conceded this at oral argument.
The judge read both paragraphs 11 and 12, as well as paragraphs 13-16, as part of the instructions and sent the indictment itself to the jury room. This was clearly sufficient to inform the jury of the "essential nature" of the conspiratorial agreement -- the meeting of minds -- that the government was required to prove beyond a reasonable doubt. The trial court further instructed the jury that, in determining whether this agreement was formed either to commit offenses against or defraud the United States, the jury need only find that one of the illegal objects specified in paragraph 11 was contemplated. That instruction was entirely proper, since a single agreement may have more than one object. See Braverman, 317 U.S. at 53. Appellant's claim that the jury nonetheless "had no way of knowing" that the issue was "whether Mary Treadwell conspired to misappropriate Clifton Terrace funds" and was misled by the instructions regarding multiple objects is therefore without merit.
B. The Co-Conspirator Statement Instruction
The trial court gave the following jury instruction regarding the permissible use of co-conspirator acts and declarations in assessing defendant's guilt:
In determining whether a conspiracy between two or more persons existed and whether the defendant was one of its members, you may consider the acts and the declarations of any other members of the conspiracy as evidence against the defendant whether done in her presence or out of her presence. When persons enter into an agreement for unlawful purposes, they become agents for each other so that the act of one conspirator is considered the act of all the other conspirators and is evidence against all of the conspirators. However, statements of any conspirator which are made before its existence or after its termination may be considered as evidence only against the person making such statements. In other words, ladies and gentlemen, in determining whether there was a conspiracy and whether the defendant Treadwell was a member of that conspiracy, you may consider as evidence against the defendant the declarations or actions of her fellow conspirators in the conspiracy whether they were done in or out of her presence while a conspiracy existed. This is because when conspirators join in a common plan or scheme to accomplish an illegal purpose, everything which is said or done by one of them in furtherance of that purpose is deemed to be the statement of all who have joined in that conspiracy.
Tr. 5706-07 (emphasis added). Appellant claims that the emphasized portions of this instruction undermined the presumption of innocence by communicating an implicit finding by the court that Treadwell was a member of the conspiracy.
Out-of-court statements of a co-conspirator are admissible if the government establishes that the statements were made in furtherance of a conspiracy of which defendant was a member. Prior to United States v. Gantt, 199 U.S. App. D.C. 249, 617 F.2d 831 (D.C. Cir. 1980), the jury determined the threshold question of admissibility. Since Gantt, however, the trial judge determines admissibility based on his finding that substantial independent evidence supports defendant's membership in the conspiracy. The jury instruction in question was taken from District of Columbia Bar Association, Criminal Jury Instructions for the District of Columbia, No. 4.92 at 303 (3d ed. 1978). The judge did not deliver that portion of the instruction, now obsolete, which explained the standards by which a pre-Gantt jury would have determined admissibility.18 Appellant contends, however, that retention of that part of the instruction dealing with how and why the statements could be used was prejudicial and misleading because it implied that the court had already found her to be a member of the conspiracy. The jury was not told, as it would have been under the old instruction delivered in full, that consideration of the statements hinged entirely on the jury's first finding membership in the conspiracy.
Despite the change in the law, however, we do not find that it is erroneous, misleading, or unnecessary to explain to the jury how and why they could consider these declarations in assessing the defendant's guilt or innocence. Rather, we find that an instruction explaining the use of co-conspirator statements may or may not be helpful to the jury, depending on the circumstances. Whether to give such an instruction is a matter within the sound discretion of the trial judge and therefore subject to the harmless error standard of review. We see no error here. A lay jury is unlikely to have knowledge or understanding of the vicarious liability principles underlying use of co-conspirator acts and statements or in what circumstances the acts and statements of one person may be imputed to another. Furthermore, a general description of the use of co-conspirator statements, coupled with an explanation of how the general rule would apply specifically to the case at issue, does not communicate a finding of defendant's guilt.19 A court would be hard pressed to explain abstract legal concepts to a lay jury unless it could supplement the explanation with an example of how the rule would apply to the case under consideration.
The argument that an implicit finding of guilt was communicated is further weakened when the jury instructions are read as a whole. The instructions repeatedly emphasized the government's burden of proof and the guilt beyond a reasonable doubt standard, and routinely qualified its references to the conspiracy and conspirators with the word "alleged." Indeed, in the passage quoted above, the trial court qualified the entire paragraph with the phrase "in determining whether . . . defendant Treadwell was a member of the conspiracy." We therefore find no error in the jury instructions regarding co-conspirator statements. IV. DOCUMENT NOT IN EVIDENCE SENT TO JURY ROOM
Appellant contends that she is entitled to a new trial because a document that had not been offered into evidence was inadvertently sent to the jury room. Appellant claims that she was prejudiced because the document mapped out the government's theories of liability on the ABC false statement counts, including one theory never aired at trial but on which the jury verdict appears to have been based.
The prosecution had used the one-page document during the trial to summarize the testimony of FBI agent Philip Buvia, a government witness, regarding his review of the June 1976 ABC schedule. It listed in capsule form five items either not reported or misreported on that schedule. The May laundry money misappropriated by Lee was not reported as either a receipt or a disbursement nor were the proceeds of a $9,000 bank loan taken out by P.I. for use by PES. In addition, neither the fact or amount of tenant security deposits pledged as collateral for that loan were disclosed.
In Dallago v. United States, 138 U.S. App. D.C. 276, 427 F.2d 546 (D.C. Cir. 1969), we held that consideration by the jury of documents not in evidence is error, and if prejudice is shown, the conviction will be reversed and a new trial ordered. Id. at 553. Non-constitutional error is prejudicial if one cannot reasonably conclude that the judgment was not substantially swayed by the error. Kotteakos v. United States, 328 U.S. 750, 765, 90 L. Ed. 1557, 66 S. Ct. 1239 (1946); Dallago, 427 F.2d at 560; Leigh v. United States, 113 U.S. App. D.C. 390, 308 F.2d 345, 346 (1962).
In assessing the magnitude and gravity of the error in Dallago, we recognized that when an extraneous document submitted to the jury is merely cumulative of other, properly admitted evidence, the transmittal is harmless error. Dallago, 427 F.2d at 559.20 The items listed on the document did nothing more than restate in an abbreviated form the testimony of Agent Buvia. He testified that the $9,000 Independence Federal loan was not reported as either a receipt or disbursement on the June 1976 ABC schedule. Tr. 3945-47. He testified that the laundry money was not reported on the June and August through November ABC schedules.21 Tr. 3956. Finally, he testified that the tenant security deposits were improperly collateralized against the $9,000 loan, and the collateralization was not disclosed on the June ABC. Tr. 3951-52.
Appellant contends, however, that even if the document was cumulative of other testimony, it was nonetheless prejudicial. Citing United States v. Adams, 385 F.2d 548 (2d Cir.1967), and United States v. Ware, 247 F.2d 698 (2d Cir.1957), she asserts that the error was prejudicial because the Buvia summary gave the jury a "neat condensation" of the government's theories of liability on the ABC reports and thus gave the government an unfair advantage.
Adams and Ware, however, are both distinguishable from this case. Those cases involved prosecutions for the unlawful sale and possession of narcotics. The jury was allowed to consider in their deliberations the government agent's notations on envelopes used to deliver the illegal substance to an examining chemist. Both courts found that submission of these statements was prejudicial because the notations provided a complete summary of the government's entire case against the defendant, and the trial judge allowed the jury to consider the exhibits in their deliberations. Adams, 385 F.2d at 550; Ware, 247 F.2d at 700.
The present case differs in two respects. First, the document here did not summarize the government's entire case against the defendant as it did in Ware and Adams, both of which involved the simple charge of possession and sale of narcotics and hinged almost entirely on the testimony, fully summarized on the envelopes, of undercover agents who had purchased the illegal drugs. Indeed, the Buvia summary did not even fully summarize the government's case on the ABC false statement counts, let alone encompass the entire case against the defendant. The document merely listed, as objective facts, items testified to by one government witness about the ABC for one month. There was documentary evidence as well as extensive testimony from numerous witnesses regarding the ABC's and what items were or were not reported on them well beyond those items covered by the Buvia summary.
Appellant would attach great significance to the fact that the six false statement counts for which she was convicted were for months in which the laundry money was not reported. Counts 3-7 and 9-15 of the indictment alleged that false statements were made on each monthly report from June 1976 to May 1977. The jury, however, convicted only on Counts 6, 9, and 11-15, covering respectively, April 1977, June 1976, and August-November, 1976 -- the months for which no laundry income appeared on the ABC's. Appellant argues that this is strong evidence that she was prejudiced by the Buvia summary, which stated that no laundry income was reported for June 1976.
The persuasiveness of the argument is blunted, however, by evidence of other false statements made in the ABC's for these same months. The false statement counts covering the months in question exactly correlate with Clifton Terrace checks written during that period for non-project purposes and then either not reported or misrepresented on the June 1976, August-November 1976, and April 1977 ABC reports.22 Additionally, we note that the Buvia summary by its own terms only covered the June 1976 ABC, and that the government never claimed that any laundry money was misappropriated by Lee after 1976 or that the April 1977 ABC did not report laundry income.23
Second, the record persuades us that the Treadwell jury did not consider the Buvia summary in their deliberations as did the Ware and Adams juries. On the sixth day of the twenty-day deliberations, the jury sent the following note to the court:
We have encountered a document entitled "Summary of Specific Items from June 1976 Schedules ABC" stuck in the folder for August 1977 ABC report schedules. We question as to whether this document was received into evidence, and therefore whether the jury should consider it. (7/15/83 Tr. 2; 7/16/83 Tr. 17-18; R. 118, unpaginated document).
Brief for Appellee at 63.
The court responded by immediately retrieving the document and instructing the jury that the document was not in evidence and should not be considered by them. The jury's question as to "whether they should consider" the document suggests that they did not do so and instead postponed their consideration pending the court's instruction. Because we find that the document was merely cumulative of other evidence properly admitted at trial and that the jury did not consider it in their deliberations, we find the error harmless.24
CLIFTON TERRACE CHECKS FOR NON-PROJECT PURPOSES
CITATION PAYEE PURPOSE AMOUNT NATURE
Tr.2497-503; Jan.,Apr., Buena Vista 8,860.01 Oil
2509-11; June 1976
GX 70, 71, Amerada Hess
72, 73, 161,
Tr. 2507-08A; Aug. 1976 Kenesaw 850.00 Contracting
GX 127,130, Enterprise (from two
131 101 security
Tr. 2528-30; Sept. 1976 Purchase 1,544.66 Purchase
2532-36; Cash 1529 A St. --1,400.00 1529 A Street
3692; GX 98, net 144.66
100, 106, 514,
683, DX 3035
Tr. 2540-43; Sept. 1976 Lee's 618.40 Contracting
GX 120, 122, Ace Electric residence
Tr. 2516-18; Sept. 1976 Booth 1,145.65 Legal fee
GX 93, 94, 95 P. Harris personal
Tr. 2524-26; Oct. 1976 Buena Vista 541.00Fixing Apts.
GX 55 Metro & Kenesaw
Tr. 2543-48; Oct.-Nov. Lee's 717.55 Refrigerator
GX 143,144, 1976 residence
145 G.E. Hotpoint
Tr.2573-75; Apr. 1977 Buena Vista 251.35 Refrigerator
GX 150, 151,
For the foregoing reasons, the judgment of the district court is