FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF OKLAHOMA (D.C. No. 6:17-CR-00033-RAW-1)
A. Ray, Norman Wohlgemuth Chandler Jeter Barnett & Ray,
Tulsa, Oklahoma, for Defendant-Appellant.
A. Epperley, Assistant United States Attorney (Brian J.
Kuester, United States Attorney, and Robert A. Wallace,
Assistant United States Attorney, with her on the brief),
Muskogee, Oklahoma, for Plaintiff-Appellee.
TYMKOVICH, Chief Judge, BALDOCK, and EID, Circuit Judges.
BALDOCK, Circuit Judge.
Buck Leon Hammers used to be the Superintendent of the
Grant-Goodland Public School District in Grant, Oklahoma.
That is, until he was charged with conspiring with his
secretary to commit bank fraud and embezzle federal program
funds. Prior to trial, the Government moved to exclude a
suicide note written by Defendant's secretary and
co-conspirator, Pamela Keeling. In that note, Ms. Keeling
took full responsibility for the fraud and exculpated
Defendant of any wrongdoing. The district court granted the
Government's motion and prohibited Defendant from
introducing the note at trial. The jury subsequently
convicted Defendant of conspiracy to commit bank fraud in
violation of 18 U.S.C. § 1349 and conspiracy to embezzle
federal program funds in violation of 18 U.S.C. § 371.
The jury acquitted Defendant on the seven substantive counts
of embezzlement and bank fraud.
appeal, Defendant asserts: (1) the district court erred in
excluding Ms. Keeling's suicide note; (2) the Government
did not present sufficient evidence to obtain a conviction;
(3) the Government committed prosecutorial misconduct; and
(4) the district court committed procedural error at
sentencing. Exercising jurisdiction under 28 U.S.C. §
1291, we affirm.
August 2001, Defendant became the Superintendent of Grant
Schools. Eight years later, Grant Schools consolidated with
the Goodland School District, creating the Grant-Goodland
Public School District ("Grant-Goodland").
Beginning in 2011, the auditing firm for Grant-Goodland
noticed deficiencies in Grant-Goodland's invoicing
process. Although the firm noted the deficiencies in
Grant-Goodland's audit and made recommendations for
improvement, the deficiencies persisted through subsequent
audits in 2012, 2013, and 2014.
2014, the continued deficiencies raised more serious concerns
as auditors began to suspect fraud at Grant-Goodland.
Initially, the auditors were concerned with fourteen large
purchase orders totaling $386, 211. The auditors were
troubled by the fact that the purchase orders did not have
"actual original invoices with letterhead and normal
business information." In light of their concerns, the
auditors examined all checks issued to the vendors identified
in the fourteen large transactions. The auditors determined
the checks to these vendors were written as a group together,
each month, on the same date. Each of the checks was endorsed
by both the vendor, and then, a school official. The checks
were cashed within minutes of each other, at the same bank,
on the same day they were issued. Because many of these
vendors were located out of town, the auditors found it
unlikely the checks could have been issued, mailed, and
cashed in such a short amount of time. Having validated their
suspicions, the auditors notified the United States
Department of Education Office of Inspector General
Investigation Services ("OIG"), which initiated the
federal investigation in this case.
January 28, 2016, agents from the FBI and the OIG executed a
search warrant at Grant-Goodland's administrative office
and seized 36 boxes of documents as well as electronic files.
Sometime thereafter, Ms. Keeling informed Jimmie Sue Miller-
who was her aunt and the school board treasurer-she intended
to tell authorities she "did it." On February 1,
2016, the Grant-Goodland school board suspended Defendant and
Ms. Keeling for their alleged roles in the scheme to defraud
the district by falsifying invoices and check endorsements.
Ms. Keeling committed suicide the next day.
taking her own life, Ms. Keeling left four suicide notes
laying on a bible-three to her family and one "to whom
it may concern" at Grant-Goodland. The letter to whom it
may concern at Grant-Goodland read as follows: "I Pam
Keeling take full responsibility for everything at Grant
School. No vendor nor Mr. Hammers had anything to do with
what happened. I am truly sorry and pray for
to trial, the Government filed a motion in limine to exclude
the suicide note from evidence, arguing the note is
inadmissible hearsay. In response, Defendant argued the note
qualifies as a statement against interest and is also
admissible under the residual exception to the hearsay rule.
See Fed. R. Evid. 804(b)(3); Fed.R.Evid. 807. At the
pretrial hearing, the district court granted the
Government's motion in limine but left its decision open
to reconsideration depending on the evidence presented at
trial. At trial, defense counsel revisited the issue and the
district court reiterated its decision to exclude the note.
making its decision, the district court reasoned the suicide
note was not a statement against interest because "penal
interest is of no interest-is of no moment to a dead
man." The court further held the note was not
"corroborated by circumstances clearly indicating its
trustworthiness." Having determined the note was not
corroborated by circumstances clearly indicating its
trustworthiness, the district court also held the note could
not be admitted under the residual exception.
its decision to exclude the note, the district court
permitted defense counsel to question Ms. Keeling's aunt,
Jimmie Sue Miller, regarding Ms. Keeling's confession
that she "did it." The district court admitted the
confession pursuant to the statement against interest
exception because there were corroborating circumstances with
respect to Ms. Keeling's statement to her aunt, in
contrast to the suicide letter. Specifically, the district
court found Ms. Keeling's statement that she "did
it" was corroborated by the Government's evidence,
which was "very much based upon Ms. Keeling's
involvement." Although defense counsel originally
intended to call Ms. Miller to testify regarding Ms.
Keeling's confession, counsel ultimately determined
calling Ms. Miller would not be in Defendant's best
the Government rested its case, Defendant moved for a
judgment of acquittal on all counts, which the district court
denied. Subsequently, Defendant testified in his own defense.
At the close of all evidence, Defendant renewed his motion.
The district court denied the motion on the same grounds
finding, in the light most favorable to the Government, a
rational trier of fact could find every element of the crimes
charged beyond a reasonable doubt. After nearly seven hours
of deliberation, the jury returned a guilty verdict on counts
one and two, charging conspiracy to commit bank fraud and
conspiracy to embezzle federal program funds. The jury
acquitted Defendant on counts three through nine, alleging
bank fraud and embezzlement.
the trial, the United States Probation Office prepared a
presentence report ("PSR"). In the final PSR, the
United States Probation Office recommended the court apply a
two-level obstruction of justice enhancement based on
Defendant's alleged perjury at trial. At sentencing, the
district court found by a preponderance of the evidence
Defendant committed perjury and applied the enhancement over
district court also considered Defendant's motion for a
downward variance and the Government's motion for an
upward departure at sentencing. After consideration, the
court granted the Government's motion in part and imposed
a two-level upward departure. Based on that departure, the
district court calculated an adjusted guideline range of 87
to 108 months. Ultimately, the district court imposed a
sentence at the high end of the guideline range, sentencing
Defendant to 108 months on both counts 1 and 2 to run
concurrently. The district court also imposed a three-year
term of supervised release on each count to run concurrently.
raises four issues on appeal. First, he argues the district
court erred in excluding Ms. Keeling's suicide note.
Next, he maintains the Government did not present sufficient
evidence to obtain a conviction. Third, he alleges the
Government committed prosecutorial misconduct. Finally, he
contends the district court committed procedural error at
sentencing. We address each issue in turn.
Defendant argues the district court erred in excluding Ms.
Keeling's suicide note at trial. Defendant further argues
the exclusion of the note violated his constitutional right
to present a defense. We review the district court's
evidentiary rulings for an abuse of discretion. United
States v. Dowlin, 408 F.3d 647, 659 (10th Cir.
2005). When a defendant alleges the district
court's evidentiary ruling deprived him of his
constitutional right to present a defense, we review the
constitutionality of the ruling de novo. Id.
first to whether the district court abused its discretion in
excluding the suicide note, Defendant argues the district
court should have admitted the suicide note as a statement
against interest pursuant to Federal Rule of Evidence
804(b)(3) or, in the alternative, under the residual
exception pursuant to Federal Rule of Evidence 807.
Rule 804(b)(3), a statement against the declarant's
interest is not excluded as hearsay if it is sufficiently
reliable. Rule 804(b)(3) covers only those statements that
are "individually self-inculpatory." United
States v. Smalls, 605 F.3d 765, 781 (10th Cir. 2010)
(citing Williamson v. United States, 512 U.S. 594,
599 (1994)). We have rejected the notion "that an entire
narrative, including non-self-inculpatory parts (but
excluding the clearly self-serving parts . . .) may be
admissible if it is in the aggregate self-inculpatory."
Smalls, 605 F.3d at 781 (citing Williamson,
512 U.S. at 601).
case, only the portions of the suicide note specifically
inculpating Ms. Keeling are eligible for analysis under Rule
804(b)(3). The statement exculpating Defendant-no vendor nor
Mr. Hammers had anything to do with what happened-is not a
statement against interest because it is not
self-inculpatory. Therefore, the Rule 804(b)(3) analysis
applies only to the statement: "I Pam Keeling take ...