United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2007 Decided December 21, 2007
No. 06-3056
UNITED STATES OF AMERICA,
APPELLEE
v.
CELICIA HOOVER-HANKERSON,
APPELLANT
06-3057
UNITED STATES OF AMERICA,
APPELLEE
v.
BENJAMIN HOOVER,
APPELLANT
Appeals from the United States District Court
for the District of Columbia
(No. 03cr00188-01)
(No. 03cr00188-02)
Peter V. Taylor, appointed by the court, argued the cause for
appellant Celicia Hoover-Hankerson. Tony Axam, Jr., Assistant
2
Federal Public Defender, argued the cause for appellant
Benjamin Hoover. With them on the briefs were A. J. Kramer,
Federal Public Defender, and Danny C. Onorato.
John C. O'Quinn, Deputy Associate Attorney General, U.S.
Department of Justice, argued the cause for appellee. With him
on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W.
McLeese, III and Steven J. Durham, Assistant U.S. Attorneys.
Before: RANDOLPH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
RANDOLPH, Circuit Judge: Celicia Hoover-Hankerson and
her brother, Benjamin Hoover, were convicted of conspiracy,
theft from programs receiving federal funds and fraud. They
were responsible for hundreds of false witness and investigator
vouchers submitted for payment to the District of Columbia
Superior Court. Indigent criminal defendants in the District are
entitled to appointed counsel under the Criminal Justice Act
(CJA). D.C. Code § 11-2601. Celicia was an attorney who
earned her living representing CJA eligible defendants. Her
brother was an investigator. When Celicia was practicing law,
a CJA attorney could pick up blank witness vouchers from the
Superior Court and sign them for witnesses she subpoenaed; the
witnesses would submit the vouchers and receive a fee of $40.00
per day. A CJA attorney also could sign vouchers so that
defense investigators would be paid from federal funds.
Between October 1998 and February 2001, Celicia signed
out 2,087 witness vouchers. Her brother and another individual,
Troy Robinson, then distributed the vouchers to family members
or people living near the 1700 block of Euclid Street, none of
whom had been witnesses. The recipients signed the vouchers,
turned them in to the court office, kept some of the proceeds for
themselves, and paid the rest to Robinson and Benjamin.
3
I.
There is not the slightest doubt about the guilt of both
defendants. Celicia and her brother Benjamin present a large
number of issues on appeal, not all of which deserve discussion.
We will deal first with Benjamin’s contention that the district
court committed reversible error when it rejected his motion to
continue the trial.
Benjamin filed his continuance motion just three days
before trial. He based it on the grounds that he had been unable
to meet with his attorney during the month before trial, and that
his attorney was preoccupied with another case. A month before
trial Benjamin’s pregnant fiancé experienced serious medical
problems. He was often at the hospital with her. This made it
difficult for him to meet with his attorney, a problem
exacerbated by the attorney’s participation in a lengthy trial.
Benjamin claims that the court’s refusal to continue the trial
deprived him of the effective assistance of counsel, in violation
of the Sixth Amendment. The question is whether the court’s
decision amounted to “an unreasoning and arbitrary insistence
upon expeditiousness in the face of a justifiable request for
delay.” Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (internal
citation and quotation marks omitted). The court’s denial of a
motion to continue is reviewed for an abuse of discretion.
Among the factors to be considered is any prejudice the
defendant suffered. See United States v. Gantt, 140 F.3d 249,
256 (D.C. Cir. 1998).
Benjamin unquestionably faced difficult circumstances on
the eve of trial, but he had more than a year to meet with his
attorney and prepare his defense. He was indicted in May 2003
and his attorney entered an appearance shortly thereafter. In
November 2003, the court set a firm trial date of June 24, 2004.
4
Benjamin and his attorney had ample time to prepare for trial,
and to consider whether to retain additional or alternative
counsel in light of the court’s trial calendar, which the court
urged him to do if he thought it was necessary. Benjamin chose
not to follow that course. In view of these considerations it was
within the court’s discretion to determine that Benjamin had
been given sufficient time to prepare for trial.
In addition, Benjamin has no convincing claim of prejudice.
See Gantt, 140 F.3d at 257. He says that his attorney was so
busy with another trial that he failed to investigate the conflict
that arose between his defense and that of his sister when she
called Troy Robinson as a witness. Had his attorney looked into
the matter, Benjamin continues, he would have filed a severance
motion. But Benjamin’s attorney did file a motion to sever in
November 2003. As the government points out, the motion
rested on the prospect of conflicting defenses. And as the
government also notes, Benjamin’s attorney demonstrated that
he was well aware of Robinson’s anticipated testimony. On the
eve of trial he renewed Benjamin’s severance motion and
specifically referred to Robinson.
Benjamin also claims that he was prejudiced because his
counsel was too busy to present a motion in limine to prevent
Robinson from testifying. But shortly before Robinson testified,
Benjamin’s attorney did make, and the court rejected, arguments
in support of that position. Nothing presented to us suggests that
if the same arguments had been made in a pre-trial motion this
would have changed the outcome.
II.
Celicia has two complaints about the district court’s
handling of voir dire. The first is that the court refused to allow
her to be physically present at bench conferences. She sees this
5
as a violation of her right to be present at trial, which Federal
Rule of Criminal Procedure 43(a) and the Fifth Amendment
guarantee.
In conducting voir dire, the district court asked questions of
the group of potential jurors and had them record their answers.
Individual jurors whose answers required follow-up questioning
were brought to the bench where the court and counsel inquired
further. Celicia’s attorney asked if Celicia could be present at
the bench. The court refused but provided her with a headset so
that she could hear what transpired. She did not object.
The district court’s decision to use a headset to protect the
defendant’s right to be present during a multiple-defendant trial
is not error, let alone plain error, which is the standard of review
when there has been no objection at trial. United States v. Roy,
473 F.3d 1232, 1237 (D.C. Cir. 2007). A defendant’s right to
participate in voir dire includes the opportunity “to observe and
hear juror responses made at the bench.” United States v.
Washington, 705 F.2d 489, 497 (D.C. Cir. 1983). The headset
fully preserved Celicia’s right in this regard. The district court
confirmed that the headset was operating and that she could hear
what was said. The court also noticed that she engaged in
conversations with her attorney throughout the process. It is
thus impossible to see how she was prejudiced. See id. at 498.
Celicia’s second complaint deals with her absence from the
courtroom. As voir dire continued, she began to feel sick to her
stomach. Her attorney asked that she be excused from the
courtroom. The court inquired whether she was waiving her
right to be present, to which her attorney responded “Yes, Your
Honor. She says yes.” Voir dire continued throughout the rest
of the day with Celicia absent for at least part of it. That
evening she went to Sinai Hospital for testing and was directed
to go to the Krieger Eye Clinic the next morning. She attended
6
her eye appointment and did not come to court. The court again
asked whether Celicia waived her right to be present. Her
counsel responded that she was not pleased that she was missing
voir dire, “so she revoked [his] authority to waive her presence.”
The court stopped the proceedings at that point until she
returned.
Celicia contends that her statements through counsel did not
effectively waive her right to be present. She relies on United
States v. Gordon for the proposition that in order to waive
presence, the defendant must make a personal, on-the-record
statement. 829 F.2d 119, 125-26 (D.C. Cir. 1987). This
misreads Gordon. Gordon was in custody outside of the
courtroom. Id. at 121-22. Given his absence and the lack of an
on-the-record waiver, the court could not determine whether his
waiver was “knowing and voluntary.” Id. at 126. The Gordon
court was careful to distinguish defendants who are not in
custody – that is, defendants like Celicia. See id. at 125 n.7. A
non-custodial defendant may waive his right to be present by not
showing up after the trial has begun. See, e.g., Crosby v. United
States, 506 U.S. 255, 259-61 (1993). Federal Rule of Criminal
Procedure 43(c)(1)(A) says precisely that. Whatever the rule is
prior to trial, we hold that when a defendant is in court during
voir dire and her attorney states that she wishes to leave and that
she is waiving her right to be present, that is an effective waiver
regardless whether the defendant orally seconds her attorney’s
statement to the court.
III.
Benjamin finds error in the court’s admission, over
objection, of a portion of Troy Robinson’s testimony. Celicia
called Robinson to establish that witness vouchers bearing her
name could have been distributed without her knowledge. The
government sought to impeach Robinson on cross-examination.
7
Pursuant to Federal Rule of Evidence 609(a), the government
questioned Robinson about his convictions for theft, federal
program fraud, and wire fraud. Robinson pled guilty to a
separate, but nearly identical, conspiracy involving voucher
fraud with an attorney named Shola Ayeni. The government
also sought to attack Robinson’s credibility with other acts he
had committed. See FED. R. EVID. 608(b). In response to the
government’s questions about his connection with fraudulent
witness vouchers in the past, Robinson testified about engaging
in those acts with Benjamin. The court overruled Benjamin’s
objection that this testimony did not go to Robinson’s
credibility.1
We have serious doubt whether testimony that Benjamin
was involved in Troy Robinson’s other acts concerned
Robinson’s own “character for truthfulness or untruthfulness” as
required by Federal Rule of Evidence 608(b), but we need not
decide the issue. Even if the district court erred in permitting
the government to question Robinson about Benjamin’s
involvement, the error was harmless. See FED. R. CRIM. P.
52(a).
Two government witnesses, Antonio and Marvin Brown,
stated that Benjamin was present with Robinson when they
received witness vouchers. A third witness, Michael Taylor,
testified that Benjamin was present with Robinson and Celicia
1
Rule 103(a)(1) requires attorneys to state the specific ground
of their objection unless it is apparent from the context. It was
apparent here that Benjamin was claiming that Robinson’s testimony
about him did not go to Robinson’s credibility, as Rule 608 required.
In responding to Benjamin’s objection, the court recognized the
distinction between impeaching a witness under Rule 609 on the basis
of a prior conviction and attacking a witness’s credibility pursuant to
Rule 608 on the basis of the witness’s prior conduct.
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when he received witness vouchers at Celicia’s office. A fourth
witness, Beatrice Pearson, testified that Benjamin accompanied
Celicia when she signed out witness vouchers on several
occasions. The government also introduced significant
documentary evidence. Exhibit 9a indicated that Benjamin
received 246 witness vouchers signed by Celicia from
November of 1998 through January of 2001.2 The total value of
the vouchers amounted to $9,820. Exhibit 7a-1 was introduced
as an example of a witness voucher signed by Celicia and turned
in by Benjamin. The government compared Exhibit 7a-1 to
Exhibit 29a – a time sheet from Benjamin’s place of
employment. The comparison of the two exhibits indicated that
Benjamin was working during the time period he claimed to be
appearing as a witness for Celicia’s trial. The documentary and
testimonial evidence suggests that Benjamin was an active
participant with Celicia in passing out and cashing fraudulent
witness vouchers.
Given this overwhelming evidence of Benjamin’s
participation in the fraudulent scheme, any error in the court’s
allowing the government to cross-examine Robinson about
Benjamin’s involvement could not have affected the outcome of
the case.
IV.
As to sentencing, Celicia argues that the district court erred
in calculating a loss amount. After the jury returned a guilty
verdict, the court instructed them to make a civil forfeiture
determination pursuant to 18 U.S.C. § 981(a)(1)(C). The court
told them that “the Government is entitled to . . . the value of the
property that constitutes or is derived from proceeds traceable to
2
By comparison, between October 1998 and early February
2001 the average attorney signed only 61 witness vouchers.
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the violations.” The jury returned a forfeiture verdict of $57,790
against Celicia. Celicia contended that the forfeiture verdict
should control the court’s loss determination under § 2B1.1 of
the U.S. Sentencing Guidelines Manual. The court disagreed
and independently calculated the loss amount to be $74,588.42.
The effect of the court’s finding was to raise Celicia’s offense
level by eight levels instead of six. U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1(b)(1) (2007).3
As Celicia sees it, the forfeiture verdict collaterally
estopped the court from recalculating the loss amount at
sentencing. We think not. For collateral estoppel to apply: “(1),
the same issue now being raised must have been contested by
the parties and submitted for judicial determination in the prior
case; (2), the issue must have been actually and necessarily
determined by a court of competent jurisdiction in that prior
case; and (3), preclusion in the second case must not work a
basic unfairness to the party bound by the first determination.”
Martin v. DOJ, 488 F.3d 446, 454 (D.C. Cir. 2007).
The “forfeiture and loss calculation[s] are distinct.” United
States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006).
Forfeiture is a means of forcing a criminal defendant to disgorge
ill-gotten profits. The theoretical limit of forfeiture is the value
of the proceeds the defendant possesses from the illegal
activity.4 Loss regards the “reasonably foreseeable pecuniary
harm that result[s] from the offense.” U.S. SENTENCING
GUIDELINES MANUAL § 2B1.1 cmt. (3)(A)(i) (2007). Loss
3
The increase in the offense level raised the sentencing range
from 27-33 months to 33-41 months.
4
The concept of traceability applies here: if a defendant
purchased a house with his share of the loot from a bank robbery, the
house would be considered proceeds subject to forfeiture.
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focuses on the harm the victim suffered, independent of what the
defendant gained. Hamaker, 455 F.3d at 1337. Though the two
calculations may at times yield the same outcome, they are not
identical.
Here the court’s forfeiture instruction, with its reference to
“property that constitutes or is derived from proceeds traceable
to the violations,” was not entirely clear. Celicia suggests that
“proceeds” refers to everything taken from the government,
regardless of who ultimately possessed it. The government’s
statements to the jury support that view. An equally plausible
reading of “proceeds” is the value that Celicia personally
received from her criminal activity. One cannot be certain
which concept, if either, the jury applied in determining the
forfeiture verdict. Given the difference between the two
concepts, we cannot say that the issue of loss is the same issue
decided by the jury when it considered forfeiture. Collateral
estoppel therefore does not apply.
As an alternative argument, Celicia claims that the court’s
determination of loss was unreasonable. The court relied
primarily on Government Exhibit 9a, which presented a list of
1,668 allegedly fraudulent witness vouchers. The court took
into consideration the corroborating documentary and
testimonial5 evidence when determining, by a preponderance of
the evidence, that the vouchers listed on Exhibit 9a were
overwhelmingly fraudulent. The court’s factual findings do not
rest on any clear error. 18 U.S.C. § 3742(e). The court
5
The court relied on Antonio Brown, Marvin Brown, Michael
Taylor and Troy Robinson. Each of these witnesses established that
this was a widespread conspiracy focusing on the family of Celicia
and individuals living in the neighborhood around the 1700 block of
Euclid Street. The names listed on Exhibit 9a were individuals who
were either family members or living in that neighborhood.
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considered a wide variety of evidence all of which had
“sufficient indicia of reliability to support its probable
accuracy.” United States v. Bras, 483 F.3d 103, 109 (D.C. Cir.
2007).6
Affirmed.
6
As we have said, the defendants’ brief contains several
additional arguments that do not merit discussion. We have
considered these arguments and have rejected them.