Mail Fraud Convictions Affirmed
US v. Whitehead, --- Fed.Appx. ----, 2014 WL 1592948 (10th Cir. April 22, 2014) (unpublished): The Court affirms the mail fraud convictions of Mr. Whitehead. Defendant Whitehead operated an oil field supply company - "WPE" which contracted to provide certain equipment to Chesapeake Energy. WPE also entered into an agreement with Cash Flow Experts. Under the agreement WPE sent Cash Flow an original invoice for equipment sold to Chesapeake. Cash flow would pay WPE a percentage of the invoice and then collect from Chesapeake. Cash Flow would keep the difference between what Chesapeake paid and what it had given to WPE.
K.W. worked for Chesapeake,ordering and installing equipment. He arranged to get ten separators from WPE. Chesapeake then fired K.W. Several months later, he was replaced. His replacement reviewed the invoices that had accumulated, and became suspicious when he saw invoices with K.W.'s signature dated after his termination. Cash Flow became concerned when Chesapeake stopped paying invoices. Mr. Whitehead told Cash Flow the equipment had been delivered and that K.W. signed the invoices. Cash Flow learned that K.W. had been terminated from Chesapeake months earlier. In all, Cash Flow paid WPE $295,000 that Chesapeake never paid because the equipment had never been delivered.
The Tenth held: 1) Defendant's sixth amendment confrontation right was not violated by the district court's refusing to allow cross examination of K.W. and another witness, L.F, into the reasons they were fired by Chesapeake. The witnesses' testimony was arguably not critical to the government's case. Another witness testified L.F. was not involved in ordering equipment, and the jury found Whitehead guilty only of the counts that involved invoices allegedly signed by K.W. after he was fired. In addition, there was plenty of other evidence of guilt, including Mr. Whitehead's changing stories. 2) The district court did not err by denying the motion for change of venue, even though Chespeake is a large company in the Oklahoma City area. The W.D. of Oklahoma has a large jury pool, there was no evidence of media coverage, the trial occurred three years after the charges were filed, and the jury acquitted him of four counts. 3) The trial court did not err in excluding evidence of the civil judgment obtained by Chesapeake against him. The evidence was not relevant or material because it had no tendency to prove or disprove any issue in the criminal case. 4) The district court did not abuse its discretion in excluding evidence of an anonymous threatening call received by a defense witness where there was no evidence as to the caller. The Court also properly excluded extrinsic evidence of another witness's allegedly fraudulent business practices under FRE 608(b). 5) The district court did not err in refusing to instruct the jury on witness tampering based on alleged "threats" made to Mr. Galvan by FBI agents. The instruction was relevant only to credibility, which was separately covered. 6) Because there were no errors, there is no cumulative error.
K.W. worked for Chesapeake,ordering and installing equipment. He arranged to get ten separators from WPE. Chesapeake then fired K.W. Several months later, he was replaced. His replacement reviewed the invoices that had accumulated, and became suspicious when he saw invoices with K.W.'s signature dated after his termination. Cash Flow became concerned when Chesapeake stopped paying invoices. Mr. Whitehead told Cash Flow the equipment had been delivered and that K.W. signed the invoices. Cash Flow learned that K.W. had been terminated from Chesapeake months earlier. In all, Cash Flow paid WPE $295,000 that Chesapeake never paid because the equipment had never been delivered.
The Tenth held: 1) Defendant's sixth amendment confrontation right was not violated by the district court's refusing to allow cross examination of K.W. and another witness, L.F, into the reasons they were fired by Chesapeake. The witnesses' testimony was arguably not critical to the government's case. Another witness testified L.F. was not involved in ordering equipment, and the jury found Whitehead guilty only of the counts that involved invoices allegedly signed by K.W. after he was fired. In addition, there was plenty of other evidence of guilt, including Mr. Whitehead's changing stories. 2) The district court did not err by denying the motion for change of venue, even though Chespeake is a large company in the Oklahoma City area. The W.D. of Oklahoma has a large jury pool, there was no evidence of media coverage, the trial occurred three years after the charges were filed, and the jury acquitted him of four counts. 3) The trial court did not err in excluding evidence of the civil judgment obtained by Chesapeake against him. The evidence was not relevant or material because it had no tendency to prove or disprove any issue in the criminal case. 4) The district court did not abuse its discretion in excluding evidence of an anonymous threatening call received by a defense witness where there was no evidence as to the caller. The Court also properly excluded extrinsic evidence of another witness's allegedly fraudulent business practices under FRE 608(b). 5) The district court did not err in refusing to instruct the jury on witness tampering based on alleged "threats" made to Mr. Galvan by FBI agents. The instruction was relevant only to credibility, which was separately covered. 6) Because there were no errors, there is no cumulative error.
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