United States v. Donald Dodson

Filing

OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Jane Kelly AUTHORING JUDGE:Jane Kelly (PUBLISHED) [4382761] [15-1139]

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1139
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Donald Earl Dodson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: December 18, 2015
Filed: March 29, 2016
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Before MURPHY, BENTON, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
After a jury trial, Donald Dodson was convicted of aiding and abetting
embezzlement from an agency receiving federal funds, in violation of 18 U.S.C.
§§ 666 and 2. At sentencing, Dodson objected to receiving a criminal history point

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for a previous uncounseled conviction. The district court1 overruled the objection,
but varied downward from the 18 to 24 month advisory Guidelines range and
sentenced Dodson to 6 months’ imprisonment and 2 years of supervised release.
Dodson appeals, renewing his objection to his criminal history calculation and
challenging the sufficiency of the evidence. Having jurisdiction pursuant to 28
U.S.C. § 1291, and finding no error, we affirm.
I. Background
In August 2012 the United States Department of Housing and Urban
Development Office of Inspector General began an investigation into the Star City,
Arkansas Housing Authority (SCHA) after being informed of allegations of
misappropriation of funds by Libby Dodson, Donald Dodson’s ex-wife. At the
beginning of the investigation, Libby Dodson was the Executive Director of SCHA
and had exclusive signatory authority as the person responsible for payroll
management and oversight, including printing checks and creating invoices.
Libby Dodson admitted in an interview with investigators that she had been
preparing fraudulent invoices and checks made payable to her mother, Elizabeth
Roberts, and her brother-in-law, Jimmy Dodson, both of whom were occasionally
employed at SCHA. Libby Dodson admitted that the checks made out to her mother
were not in compensation for any work done. Libby Dodson deposited and cashed
the checks made out to Roberts herself, using the money for personal use, such as to
cover her monthly bills. Libby Dodson did so without Roberts’s knowledge or
permission. With regard to Jimmy Dodson, the checks were either for work that was
not performed or for amounts in excess of what his work actually justified.

1

The Honorable D. Price Marshall, United States District Judge for the Eastern
District of Arkansas.

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Donald Dodson never worked for SCHA. Libby Dodson admitted that she
gave him checks nonetheless. To effect the scheme, Libby Dodson created fraudulent
work invoices for him in the name of a company called J&D Construction. Donald
Dodson’s checks sometimes bore the name of Donna Ballinger, another SCHA
employee, but Libby Dodson admitted to signing Ballinger’s name without her
knowledge or permission. Ultimately, Donald Dodson received $82,225.42 in checks
from the SCHA, and kept at least $21,307.00, giving the rest to Libby Dodson.
Donald Dodson does not dispute he did not do any work for SCHA, yet the
evidence indicated he had previously lied and said that he did. For instance, he told
a bank teller who was suspicious of a check he cashed that he was putting in windows
at SCHA. When interviewed, Donald Dodson told Detective Firmin—one of the
investigators from the Department of Housing—he cashed the checks, but he did not
know about the fraudulent invoices Libby Dodson had created. He also stated that,
for 18 of the 19 checks he cashed, he did work for SCHA, and he described for
Detective Firmin the type of work he had done. He also said he kept some of the
money, but gave much of it to Libby Dodson and to his brother, Jimmy Dodson.
II. Discussion
Dodson argues there was not enough evidence to support the jury’s finding that
he had knowledge of the theft of federal funds sufficient to make him an aider or
abettor of Libby Dodson’s scheme. As he did at trial, he asserts that Libby Dodson
was the one who created the fraudulent invoices, forged the signatures, and
masterminded the scheme. He points out that no witnesses at trial testified explicitly
that he knew Libby Dodson had committed theft, and argues that the government
simply failed to present sufficient evidence that he knew the checks he cashed
represented stolen funds. “We review the sufficiency of the evidence de novo,
viewing [the] evidence in the light most favorable” to the jury’s verdict, “resolving
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conflicts in the government’s favor, and accepting all reasonable inferences that
support the verdict.” United States v. Brooks, 715 F.3d 1069, 1080–81 (8th Cir.
2013) (quoting United States v. Miller, 698 F.3d 699, 702 (8th Cir. 2012)). “[W]e
will reverse only if no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” Id. (alteration in original) (quoting United States v. Espinosa,
585 F.3d 418, 423 (8th Cir. 2009)).
As the district court instructed the jury, in order to be found guilty of aiding
abetting the charged theft, Donald Dodson had to “have known the theft concerning
a program receiving Federal funds was being committed or going to be committed.”
See 8th Cir. Model Crim. Jury Instr. § 5.01 (2014). The government may have lacked
direct evidence that Dodson knew of the theft, but the jury heard sufficient evidence
to reach the conclusion, beyond a reasonable doubt, that he did. See United States
v. Armstrong, 16 F.3d 289, 292 (8th Cir. 1994) (“Because knowledge in the mind of
another is a subjective thing not always capable of proof by positive or direct
evidence, circumstantial evidence may be relied upon in determining whether the
requisite mental condition existed.”) (internal quotations and alterations omitted).
Dodson cashed checks for work he knew he did not do (and from an organization he
had never worked for), lied to a bank teller who asked him what he did for the SCHA,
lied to an investigator about doing the work—going into detail about the work he
supposedly did—and kept a significant amount of the money. We conclude from
these facts a reasonable jury could have found beyond a reasonable doubt Donald
Dodson had knowledge of and was involved in Libby Dodson’s theft of funds from
the Housing Authority.
Donald Dodson also alleges that the district court erred in including the one
criminal history point he was assessed for a prior conviction for Domestic Battery in
the Third Degree—a misdemeanor for which he did not receive jail time. He argues
that because he was both uncounseled and not advised of his right to counsel for the
prior conviction, it should not count for purposes of calculating his criminal history
score.
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“The records show that [Dodson] was convicted of the misdemeanor offense[],
and our cases make clear that once the government carries its initial burden of
proving the fact of conviction, it is the defendant’s burden to show his prior
convictions were not constitutionally valid.” United States v. Charles, 389 F.3d 797,
799 (8th Cir. 2004). Dodson attempts to show a constitutional error in his prior
conviction by arguing that he was not advised of his right to counsel and therefore did
not knowingly waive that right during the proceeding that led to his misdemeanor
conviction. The record, however, is silent with regard to any evidence that would
establish his factual claim. The unobjected-to information in Dodson’s presentence
report indicates that Dodson’s “[a]ttorney representation [for the prior offense was]
unknown. The circumstances for this case are not available.” Dodson did not present
any evidence, beyond the lack of records, that he was not advised of his right to
counsel. He offered no transcript or additional documentation as to those
proceedings, and he presented no additional evidence by way of testimony or
otherwise to support his factual assertion.2 See Charles, 389 F.3d at 799–800.
Because Dodson failed to meet his burden of proving the factual basis upon which
his legal argument relies, the district court did not err in calculating his criminal
history score.
III. Conclusion
We affirm the judgment of the district court.
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2

The government also argues that any sentencing calculation error was
harmless, because the district court would have imposed the same sentence
regardless. See United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012)
(“[C]omputation error is harmless if the government can show that the procedural
error did not substantially influence the outcome of the sentencing proceeding.”
(quoting United States v. Walker, 555 F.3d 716, 722 (8th Cir. 2009))). Even if
Donald’s prior misdemeanor had not been counted, the district court’s downward
variance was well below the Guidelines range of 15–21 months, and the court noted
that Donald’s advisory range over-represented his minor criminal history. We need
not speculate on what the district court would have done, however, as Donald has not
proven sentencing error.
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