Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-91-2166-AAM. Alan A. McDonald, District Judge, Presiding
Before: Goodwin, Canby, and Kozinski Circuit Judges.
Clyde Goeke was convicted after a jury trial of conspiracy to violate a federal statute, 18 U.S.C. § 371; theft of government funds, 18 U.S.C. § 641; and food stamp fraud, 7 U.S.C. § 2024(b). Goeke appeals his conviction and sentence on five grounds: (1) statements made by Clyde's wife and codefendant Bonita Goeke were hearsay and inadmissible pursuant to Fed. R. Evid. 801(d)(2)(E); (2) codefendant Bonita Goeke's admission to her probation officer, nine days after Clyde's trial, that most of the fraudulently-obtained public assistance went to support her cocaine habit constitutes a ground for a new trial; (3) a statement made by a juror prejudiced Clyde's right to a fair trial and is a ground for a new trial; (4) the district court erred in enhancing Clyde's sentence for "more than minimal planning;" and (5) the district court erred in refusing to adjust Clyde's sentence downward for minor or minimal participation.
We affirm the judgment and sentence of the district court.
In December 1988, Bonita Goeke applied to the Cle Elum office of the Washington Department of Social and Health Services (DSHS) for public assistance. Bonita was divorced when she initially applied for public assistance, but remarried her ex-husband, Clyde Goeke, in March 1989. However, she did not report the remarriage until ten months later, during which time she received assistance based upon a single parent family. Had the remarriage been reported, lower assistance rates would have been applicable.
In January 1990, Bonita again applied for public assistance after the Goeke family moved to Ellensburg, Washington. As part of the January 1990 reapplication process, Belinda McMillen, a case worker at the Ellensburg office of DSHS had direct contact with Clyde Goeke. Clyde told McMillen that he had been unemployed for the last month. In addition, Clyde signed a DSHS form requiring him to report all employment, as well as quitting or refusal of a job offer.
McMillen referred Clyde Goeke to an employment program, which found Clyde a job with Dave Cassida Logging. A short time later, both Bonita and Clyde reported to DSHS officials that Clyde had been discharged from this job. In fact, Clyde quit the job to begin another job at A.L. Reicon, yet he never reported this income to DSHS as required.
In July 1990, the Goeke's public assistance file was reassigned to a different case worker, Diane Storms. Storms again referred Clyde Goeke to the employment program, which this time arranged for him to attend vocational school. Clyde was reimbursed under the JOBS program for reported travel expenses to and from school. However, during this time Clyde was not attending school, but working for Al Abel Bulldozing. This employment, if known by DSHS officials, would have made Clyde ineligible for assistance under the JOBS program.
During the time the Goeke family received assistance, Clyde Goeke was employed by one or more employers. From March 1989 through October 1990 and from December 1990 until May 1991, he was a bulldozer operator for Al Abel Bulldozing. Clyde Goeke also ran his own business named Tree Fall Land Construction. Deposits totalling $51,378.91 were made in a Security Pacific Bank checking account under the name of Tree Fall Land Construction from April to August 1989, yet neither this income nor Clyde's employment status were reported to DSHS officials. Tree Fall Land Construction also received $15,452.44, less attorney's fees, in 1990 from an insurance settlement. The Goekes also failed to report this income.
From April 1, 1989 through May 31, 1991, Bonita and Clyde Goeke, both separately and together, participated in interviews and submitted forms (including application documents and monthly reports) which either concealed the above information or provided false or misleading information to DSHS officials. During this time period the Goekes ignored many other inquiries and requests for documentation by DSHS workers.
As a result of the public assistance applications and reports submitted by the Goeke family, it received overpayments in state and federal public assistance from April 1, 1989 through May 31, 1991 of approximately $23,653.25 in grant money, $6,654.00 in food stamps, and $32,370.73 in medical assistance. The total overpayment in federal funds amounted to $37,467.19.
II. Admission of Coconspirator's Statements
Clyde Goeke first claims that statements made by Bonita to various public assistance workers should not have been admitted at trial. The district court, after hearing the defendant's objection, permitted these statements to be introduced pursuant to Federal Rule of Evidence 801(d)(2)(E). Rule 801(d)(2)(E) provides that a statement made by a coconspirator during the course and in furtherance of the ...