UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-30251
(Summary Calendar)
_________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOANN A PARKER; RALPH PARKER,
Defendants - Appellants.
Appeals from the United States District Court
for the Eastern District of Louisiana
January 15, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Joann A. Parker (“Mrs. Parker”) appeals her conviction and
sentence for conspiracy to commit public bribery and five counts of
public bribery in violation of 18 U.S.C. §§ 201(b)(2)(C) and 371.
Ralph Parker (“Mr. Parker”) appeals his conviction for conspiracy
to commit public bribery and three counts of public bribery under
the same statutes. We affirm.
I
The Social Security Administration (“SSA”) Office of Hearings
and Appeals employed Mrs. Parker as a clerk to Administrative Law
Judge (“ALJ”) John Aronson. She led a group that helped certain
individuals to fraudulently obtain Supplemental Security Income
(“SSI”) benefits in return for money.1 The scheme began when Mrs.
Parker met Niknitta Simmons (“Simmons”) at a hearing where Simmons
was appealing the denial of SSI benefits for her son, Kevin
Simmons. ALJ Aronson advised Simmons that additional documentation
would be necessary for a favorable ruling on Kevin’s claim. Mrs.
Parker approached Simmons after the hearing and offered to help.
A few days later, Mrs. Parker gave Simmons a letter approving
Kevin’s benefits. Mrs. Parker thereafter called Simmons and
demanded money for her help. Simmons refused to pay, and Kevin’s
benefits were terminated. Mrs. Parker advised Simmons that Kevin’s
benefits would be reinstated if Simmons paid her.
Simmons went to several SSA offices and reported Mrs. Parker’s
demands. Investigators from the SSA and FBI contacted Simmons, and
she agreed to assist them by permitting FBI Agent Karen Jenkins to
record her telephone conversations with Mrs. Parker. In multiple
recorded conversations, Mrs. Parker demanded payment for having
Kevin’s benefits approved initially and for having those benefits
reinstated. At a meeting at Simmons’ home, Mrs. and Mr. Parker
took $500, as captured on videotape by the FBI. Mrs. Parker
1
SSI benefits are means-based benefits for needy elderly, blind, and
disabled persons. An applicant for SSI first fills out an application for
benefits at a local SSA office. If the initial application is denied, then the
applicant may reapply. After the application has been denied twice, an applicant
may appeal to the SSA Office of Hearing and Appeals, where an ALJ will review the
file and, if necessary, order a hearing. The ALJ will issue a written opinion
granting or denying SSI benefits, a copy of which is mailed in a letter to the
applicant. The ALJ also may determine that the disability began at some prior
point in time and order a lump-sum back payment.
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thereafter demanded more money, which Simmons paid, and Mrs. Parker
gave Simmons a letter purportedly bearing ALJ Aronson’s signature
reinstating Kevin’s benefits.
Agent Jenkins and a SSA agent interviewed Mrs. Parker about
her contacts with Simmons. The agents advised Mrs. Parker of her
rights and she signed a written waiver before confessing to
fraudulently approving benefits for Kevin Simmons, Raymond Henry,
Georgette Lemon, Yvette Scott, and Karen Johnson. Mrs. Parker
stated that two other SSA employees had assisted her and implicated
Mr. Parker. Mrs. Parker admitted that she had approved benefits by
taking letters addressed to different persons, changing the names
and dates of those letters to match those of the applicants who had
paid her money, and forging the signature of ALJ Aronson.
II
A
Mrs. Parker first argues that the indictment charging her with
conspiracy to commit public bribery and public bribery under 18
U.S.C. § 201(b)(2)(C) was deficient because she lacked the
authority to grant or deny benefits. Mrs. Parker’s duties included
assisting ALJ Aronson before and during the hearings, recording and
taking notes at those hearings, and typing and mailing ALJ
Aronson’s decisions. Mrs. Parker had access to the office’s
computer system, but was not authorized to approve benefits or sign
ALJ Aronson’s name. Thus, Mrs. Parker essentially argues that the
only acts which we should examine in determining whether she
violated section 201(b)(2)(C) are those within the scope of her
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authority, such as typing and mailing opinions.
Section 201(b)(2)(C) prohibits public officials from being
induced to do or omit any act in violation of their official duty.2
Acts that violate an official’s duty are extremely broad in scope.
Section 201(a) broadly defines an “official act” as “any decision
or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law
be brought before any public official, in such official’s official
capacity, or in such official’s place of trust or profit.” 18
U.S.C. § 201(a)(3). This broad definition of “official act”
reflects Congress’ intent to “include any decision or action taken
by a public official in his capacity as such.” S.Rep. No. 87-2213,
(1962), reprinted in 1962 U.S.C.C.A.N. 3852, 3856. Official acts
that violate an official’s official duty are not limited to those
proscribed by statutes and written rules and regulations, but may
also be found in “established usage,” because “duties not
2
18 U.S.C. § 201 provides in relevant part:
(b) Whoever))
. . .
(2) being a public official or person selected to be a
public official, directly or indirectly, corruptly
demands, seeks, receives, accepts, or agrees to receive
or accept anything of value personally or for any other
person or entity, in return for:
. . .
(C) being induced to do or omit any act in
violation of the official duty of such
official or person.
. . .
shall be fined under this title or not more than three times the
monetary equivalent of the thing of value, whichever is greater, or
imprisoned for not more than fifteen years, or both, and may be
disqualified from holding any office of honor, trust, or profit
under the United States.
Id.
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completely defined by written rules are established by settled
practice, and action taken in the course of their performance must
be regarded as within the provisions of the above-mentioned
statutes against bribery.” United States v. Birdsall, 233 U.S. 223,
231, 34 S. Ct. 512, 514, 58 L.Ed.2d 930 (1914). Official acts that
violate an official’s official duty are also not limited to those
within the official’s specific authority. See e.g., United States
v. Gjieli, 717 F.2d 968, 972 (6th Cir. 1983).
Mrs. Parker does not dispute that the individuals for whom she
fraudulently approved benefits had appeals pending in her office.
Because the appeals were pending in her “place of trust or profit,”
her actions fall within the statutory definition of “official act.”
See United States v. Dobson, 609 F.2d 840, 842 (5th Cir. 1980)
(holding that the actions of a government employee in preparing a
memorandum fell within the definition of an “official act” because
the decision in question was pending in his “place of trust or
profit”). Her abuse of the SSA facilities and equipment and the
responsibility that ALJ Aronson gave her enabled her to alter and
forge the decisions. Mrs. Parker could create fictitious letters
approving benefits because she had access to the official networked
computer system. She was able to “cut and paste” segments of one
document onto another and make them appear real. As access to
government computer systems becomes more prevalent, opportunities
for this kind of nefarious behavior will become more common. We
therefore hold that the term “official act” encompasses use of
governmental computer systems to fraudulently create documents for
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the benefit of the employee or a third party for compensation, even
when the employee’s scope of authority does not formally encompass
the act. See e.g., United States v. Carson, 464 F.2d 424, 433 (2nd
Cir. 1972) (interpreting the bribery statute broadly to cover a
congressional aide’s attempts to intercede with Executive Branch
officials on behalf of bribers even though the scope of his job
authority did not extend to such intercession). Mrs. Parker’s
actions were thus covered by section 201(b)(2)(C) and the
indictment was not deficient.
B
Mr. and Mrs. Parker argue that the district court erred in
barring cross-examination of the witness Yvette Scott on pending
state charges that Scott murdered her husband. At trial, they both
argued that the charge was relevant to show Scott’s general lack of
credibility. The court barred mention of the pending state charges
because it held that “[t]hreatening to kill her husband or killing
her husband has nothing to do with the facts of this case.” On
appeal, Mrs. Parker argues that cross-examination should have been
allowed to show Scott’s lack of credibility. Mr. Parker argues for
the first time on appeal that such cross-examination would have
shown that Scott had an incentive to slant her testimony in this
case in favor of the government to receive a favorable
recommendation in the pending state case.
As the lower court correctly noted, FED. R. EVID. 609 permits
impeachment by evidence of past convictions, but does not apply to
crimes charged for which there has been no conviction. See United
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States v. Abadie, 879 F.2d 1260, 1267 (5th Cir. 1989) (holding that
an arrest is generally not admissible to impeach the general
credibility of a witness). Prior bad acts that have not resulted
in a conviction are admissible under FED. R. EVID. 608(b) if
relevant to the witness’s character for truthfulness or
untruthfulness. Violent crimes, however, are irrelevant to a
witness’s character for truthfulness. See CHARLES ALAN WRIGHT & VICTOR
JAMES GOLD, FEDERAL PRACTICE AND PROCEDURE § 6118 (1993). Accordingly, the
district court did not abuse its discretion denying cross-
examination to show Scott’s general lack of credibility, and we
reject Mrs. Parker’s argument.
With regard to Mr. Parker’s argument that cross-examination on
the pending state charges would have demonstrated possible bias,
even assuming the applicability of Rule 608(b), reversal would
still not be required. Mr. Parker has presented no evidence that
federal prosecutors agreed to give a favorable recommendation for
or intercede on behalf of Simmons in the pending state case. See
United States v. Benavidez, 664 F.2d 1255, 1262 (5th Cir. 1982)
(holding trial court’s refusal to allow impeachment of a witness’s
credibility on pending state charges did not violate the
Confrontation Clause because no evidence existed of any deal
between the government and witness to testify favorably).
Moreover, any error that may have occurred was harmless. See
Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436,
89 L.Ed.2d 674 (1986). Scott’s testimony was substantially
corroborated by the testimony of Georgette Lemon and other
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government witnesses. Thus, even if the trial court erred in not
allowing cross-examination on the pending state charges to
demonstrate possible bias, such error was harmless, and we reject
Mr. Parker’s argument as well.
C
Mrs. Parker next argues that the district court erred in
excusing venire member 47, who stated that he would have a “healthy
skepticism for evidence brought into court” and that he would be
suspicious of the government’s evidence before he saw it. She also
avers that the judge’s questioning of venire member 47 was so loud
that the entire venire could hear the questioning, and that this
questioning cowed the jury into believing that they were required
to accept the government’s evidence as correct.
In noncapital cases, removal of a venire member generally is
not grounds for reversal unless “the jurors who actually sat were
not impartial within the meaning of the Sixth Amendment.” United
States v. Gonzalez-Balderas, 11 F.3d 1218, 1222 (5th Cir. 1994). A
potential juror is properly excused for cause when the individual’s
views would prevent or substantially impair the performance of
their duties as a juror. See United States v. Flores, 63 F.3d
1342, 1354 (5th Cir. 1995). In addition to stating that he had a
“healthy skepticism” for evidence, venire member 47 stated that he
would be suspicious of the evidence before he had seen it based on
his brother-in-law’s recent criminal conviction. Therefore, the
court did not abuse its discretion in dismissing venire member 47.
Mrs. Parker has presented no evidence that the jurors who
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actually sat were not impartial. Indeed, even after the judge’s
exchange with venire member 47, other venire members approached the
bench to inquire about possible disqualifications. Their exchanges
with the judge do not reflect any sense of intimidation by the
judge’s exchange with venire member 47. The judge also instructed
the jury that they should decide the case only on the evidence
presented in court and according to the court’s instructions. In
the absence of evidence to the contrary, we find that the jury was
impartial, and that Mrs. Parker’s rights were not prejudiced. See
United States v. Prati, 861 F.2d 82, 87 (5th Cir. 1988).
D
Mr. Parker argues that the district court abused its
discretion on two evidentiary rulings. We review evidentiary
rulings only for abuse of discretion. See United States v. Torres,
114 F.3d 520, 526 (5th Cir. 1997). In the first ruling, FBI Agent
Jenkins testified that “As soon as I arrived [at Simmons’ house],
I learned that Mrs. Parker had just called Simmons and demanded
money.” The trial court allowed the statement to be introduced
only for the limited purpose of establishing background information
on why Agent Jenkins began the investigation, a use which we have
repeatedly approved in the past. See e.g., United States v.
Carillo, 20 F.3d 617, 619 (5th Cir. 1994) (allowing testimony of
detective concerning background information that led detectives to
purchase drugs from defendant). The court also gave two limiting
instructions to the jury explaining that the statement was not
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admitted for the truth of the matter asserted.3 Thus, the district
court did not abuse its discretion in admitting this statement.
In the second ruling, Peggy Kelly testified about a telephone
conversation she had with a man who referred to Mrs. Parker as his
“old lady” and who threatened Kelly. Kelly stated that she thought
that the man on the telephone was Mr. Parker and her reasons for so
thinking, but admitted that she could not identify his voice and
that she had never previously met him. Mr. Parker argues that the
government therefore failed to properly establish the evidentiary
foundation for the telephone conversation. “While a mere assertion
of identity by a person talking on the telephone is not in itself
sufficient to authenticate that person’s identity, some additional
evidence, which ‘need not fall in[to] any set pattern,’ may provide
the necessary foundation.” United States v. Khan, 53 F.3d 507, 516
(2nd Cir. 1995) (quoting FED. R. EVID. 901(b)(6), Advisory Committee
notes, example 6).
Here, the trial court found sufficient circumstantial evidence
to indicate that the man on the telephone was Mr. Parker because
Mrs. Parker placed the call to Kelly, and, thereafter, a man
interrupted the telephone conversation and stated that Mrs. Parker
was his “old lady.” Based on this circumstantial evidence, we
affirm the district court’s finding that the government established
3
Even assuming that the prejudicial effect of this statement
substantially outweighed its probative value, see FED. R. EVID. 403, and that the
district court erred in admitting it, such error was harmless because Simmons
herself repeated this information in her testimony and the government played
recorded tapes of those conversations to the jury. See United States v. Gomez,
529 F.2d 412, 417 (5th Cir. 1976) (holding admission of hearsay statement to be
harmless error because contents of statement were duplicated by other evidence).
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a foundation for the conversation. Once the government established
this foundation, it became the province of the jury to decide
whether Mr. Parker was indeed the man on the phone and whether he
made the threats; as the conversation was relevant to this
determination, it was properly admissible under FED. R. EVID. 401.
Accordingly, we reject Mr. Parker’s argument.
E
Mrs. Parker argues that the evidence was insufficient to
support her conviction. Because she failed to move for a judgment
of acquittal at the close of the evidence, we review only for plain
error. See United States v. McCarty, 36 F.3d 1349, 1358 (5th Cir.
1994). A conviction may be reversed under the plain error standard
only to avoid a manifest miscarriage of justice. Id. “Such a
miscarriage would exist only if the record is devoid of evidence
pointing to guilt, or . . . because the evidence on a key element
of the offense was so tenuous that a conviction would be shocking.”
United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en
banc). After a thorough review of the record, we find that the
record is not so devoid of evidence pointing to guilt or so tenuous
on a key element of the offense that her conviction would be
shocking and, accordingly, we decline to reverse her conviction.
F
Finally, Mrs. Parker alleges various errors in her sentencing
and the court’s adoption of the Presentence Report (“PSR”). We
review the trial court’s legal interpretation and application of
sentencing guidelines de novo and its factual findings in
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connection with sentencing for clear error. See United States v.
Ismoila, 100 F.3d 380, 394 (5th Cir. 1996). Facts contained in a
PSR are considered reliable and may be adopted without further
inquiry if the defendant fails to present competent rebuttal
evidence. See United States v. Puig-Infante, 19 F.3d 929, 943 (5th
Cir. 1994). Such rebuttal evidence must demonstrate that the PSR
information is “materially untrue, inaccurate or unreliable,” see
United States v. Angulo, 927 F.2d 202, 205 (5th Cir. 1991). Mere
objections do not suffice as competent rebuttal evidence. See
Puig-Infante, 19 F.3d at 943.
Mrs. Parker first argues that the court erred in considering
the confession she made to Agent Jenkins in deciding her sentence.
We reject this argument because the statement was admissible and
was introduced at trial. See United States v. Collins, 40 F.3d 95,
98 (5th Cir. 1994). Moreover, at sentencing, “a court may consider
relevant information without regard to its admissibility under the
rules of evidence applicable at trial, provided that the
information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3 (Nov. 1995).
Mrs. Parker next alleges that the district court erred in
crediting the part of the PSR that stated that Mrs. Parker took
$8,000 from Peggy Kelly’s sister in the bathroom of a Wendy’s
restaurant for obtaining benefits. We reject her argument because
she failed to present any rebuttal evidence to support her
argument. Moreover, the jury convicted Mrs. Parker on one count of
taking money from Peggy Kelly’s sister and therefore, the court
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only adopted what the jury had previously determined.
Mrs. Parker alleges that the victim impact portion of the PSR
is deficient because it overstates the victim impact. She argues
that the only victims in this case were the individuals from whom
she took money and only their payments to her should be considered
in affixing the amount of the loss. The PSR identified the SSA as
the victim, stated that the total fraudulent claims amounted to
$69,673.85, and broke down the claims by each individual, which the
district court as being both accurate and reliable. Loss
calculations will be affirmed so long as they reasonably estimate
the loss using reasonably available information. See U.S.S.G.
§ 2F1.1, cmt. 8; United States v. Chappell, 6 F.3d 1095, 1101 (5th
Cir. 1993). Mrs. Parker failed to present any rebuttal evidence
and while the individuals from whom Mrs. Parker extorted money may
have been victims, the SSA was also a victim because it paid monies
due to Mrs. Parker’s actions that it otherwise might not have paid.
Cf. United States v. Sidhu, No. 96-50736, 1997 WL 745724, at *8-9
(5th Cir. Dec. 3, 1997) (holding that for doctor’s fraud, the
victim impact should include not just amounts collected from
patients, but amounts collected from insurance companies as well).
Therefore, we reject Mrs. Parker’s argument.
Mrs. Parker also argues that the district court erred in
increasing her offense level under U.S.S.G. § 2B3.2 based on its
finding that her offense involved threats of physical injury and
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property destruction.4 A conspirator may be held liable for the
substantive offenses of a coconspirator when the acts are
reasonably foreseeable and are done in furtherance of the
conspiracy, even where the first conspirator lacked knowledge of or
participation in the acts. See Pinkerton v. United States, 328
U.S. 640, 647-48 (1946). The trial court found that the threats
were made by Mr. Parker, but that the threats were attributable to
Mrs. Parker because they were coconspirators and his actions were
reasonably foreseeable by her. Absent competent rebuttal evidence,
the court properly adopted these facts. U.S.S.G. § 1B1.3(a)(1)(B).
Mrs. Parker argues that the district court erred in increasing
her offense level pursuant to § 3B1.1(c) of the Guidelines for her
leadership role. We review this sentence enhancement only for
clear error, see United States v. Narvaez, 38 F.3d 162, 166 (5th
Cir. 1994), and no clear error results if the finding is plausible
in light of the record read as a whole. See United States v.
Watson, 966 F.2d 161, 162 (5th Cir. 1992). The record of this case
and testimony by government witnesses at trial fully supports the
district court’s finding that Mrs. Parker exercised a leadership
role in altering SSA documents. See U.S.S.G. § 3B1.1, cmt. 4.
Finally, Mrs. Parker argues that the court erred in failing to
consider her medical condition and her financial circumstances in
imposing her sentence and ordering her to pay restitution, citing
U.S.S.G. § 5H1.4 and § 5E1.2. We reject this contention because
4
Violation of § 201(b)(2)(C) is normally punishable under U.S.S.G.
§ 2C1.1, but if the offense involved a threat of physical injury or destruction,
U.S.S.G. § 2B3.2 is instead applied.
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the district court considered her medical condition and financial
circumstances before imposing the sentence and it explicitly
declined to reduce her sentence. See United States v. Winters, 105
F.3d 200, 208 (5th Cir. 1997); United States v. Guajardo, 950 F.2d
203, 208 (5th Cir. 1991).
III
The convictions of Joann Parker and Ralph Parker are AFFIRMED
and the sentence of Joann Parker is AFFIRMED.
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