United States of America, Appellee, v. Joanna Mcknight, A/k/a Jody Mcknight, Appellant, 799 F.2d 443 (8th Cir. 1986)

Joanna McKnight appeals from a judgment of conviction entered against her for obstruction of justice in violation of 18 U.S.C. §§ 1503 and 2 (1982). In 1982, the Federal Deposit Insurance Corporation (FDIC) turned over to the Federal Bureau of Investigation a matter involving possible violations of 18 U.S.C. § 1001 (1982) and 31 U.S.C. §§ 1058, 1059 and 1081 (1982), laundering of United States currency, by the Southern Missouri Bank. A grand jury was impaneled to investigate the matter. On April 16, 1982, Joanna McKnight, the head cashier of the Bank, was personally served with a subpoena duces tecum issued by the federal district court ordering her to produce certain Bank records for the grand jury. McKnight filed a motion to quash the subpoena which was denied by the district court on August 13, 1982. On August 30, 1982, David James, the Bank's new president, appeared before the grand jury but was unable to comply entirely with the subpoena since some of the requested records were missing.

In October, 1982, a receiver was appointed for the Bank. A bank examiner reviewed the Bank's records and found them to be in complete disarray. He found that the teller bundles, which contained the Bank's cash-in tickets, cash-out tickets, and proof tapes for 1977 through 1980, were missing as well as the Bank's money order records for the period under subpoena. All of the records, however, covering periods not within the subpoena's time limits were located.

Evidence was introduced at trial that in July of 1982 the owner of the Bank, Hugh Shannon, asked a friend, Joe Williams, to meet McKnight at the Bank's records room to help her destroy records which had been subpoenaed, but which were outdated. Williams went to the Bank and observed McKnight sorting through the Bank records and placing some of them in garbage bags. Williams then incinerated these records. Williams testified that McKnight had been "bad-mouthing" the Internal Revenue Service while doing this.

McKnight was indicted by the grand jury on several counts including obstruction of justice. A jury convicted McKnight of that charge. McKnight appeals her judgment of conviction.¹ 

Adequacy of the Indictment

McKnight claims that the trial court erred in refusing to dismiss Count IX of the indictment because it failed to allege that she acted willfully.²  She charges that this alleged defect violated her Sixth Amendment right to be informed of the nature of the charge against her and her Fifth Amendment rights to be protected against double jeopardy and to be tried only upon charges found by a grand jury.

The principal charge against McKnight was that she violated Title 18 U.S.C. § 1503 (1982), which states in pertinent part: "Whoever * * * corruptly * * * influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both." Generally, an indictment which sets forth the words of the statute itself is sufficient, as long as those words fairly inform the defendant of the elements necessary to constitute the offense charged. United States v. Powell, 701 F.2d 70, 73 (8th Cir. 1983). There is no defect in the indictment with respect to section 1503. However, McKnight urges that she was also charged with aiding and abetting under section 2 as well. Title 18 U.S.C. § 2(b) (1982) provides: "Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal." (Emphasis added). McKnight contends that since the act at issue in section 2 must be done "willfully," the failure to allege in the indictment that she committed the alleged act willfully requires a dismissal of the indictment.

An indictment must be "a plain, concise and definite written statement of the essential facts constituting the offense charged," Fed. R. Crim. P. 7(c) (1), which sufficiently informs the defendant of the accusations against him to enable him to prepare his defense and to afford him protection against being placed in jeopardy a second time. United States v. Cartano, 534 F.2d 788, 791 (8th Cir.), cert. denied, 429 U.S. 843, 97 S. Ct. 121, 50 L. Ed. 2d 113 (1976). It is well established, however, that a defendant may be convicted of aiding and abetting under section 2 even though he may not have been formally charged in that capacity. E.g., United States v. Beardslee, 609 F.2d 914, 919 (8th Cir. 1979), cert. denied, 444 U.S. 1090, 100 S. Ct. 1053, 62 L. Ed. 2d 778 (1980); United States v. Frye, 548 F.2d 765, 767 n. 4 (8th Cir. 1977).³  The reason for this rule is that section 2 does not create a separate offense, it simply makes those who aid and abet in a crime punishable as principals. United States v. Galiffa, 734 F.2d 306, 312 (7th Cir. 1984). It therefore follows that an indictment that merely alleges a violation of section 2 is inadequate. If a section 2 violation is alleged, some other substantive crime must be described as well. See, e.g., United States v. Southard, 700 F.2d 1, 19 (1st Cir.), cert. denied, 464 U.S. 823, 104 S. Ct. 89, 78 L. Ed. 2d 97 (1983); Londono-Gomez v. Immigration & Naturalization Service, 699 F.2d 475, 477 (9th Cir. 1983). Thus, as the Fifth Circuit has noted, "18 U.S.C. § 2 is an alternative charge in every count, whether explicit or implicit, 'and the rule is well-established, both in this circuit and others, that one who has been indicted as a principal may be convicted on evidence showing that he merely aided and abetted the commission of the offense'." United States v. Walker, 621 F.2d 163, 166 (5th Cir. 1980) cert. denied, 450 U.S. 1000, 101 S. Ct. 1707, 68 L. Ed. 2d 202 (1981) (footnote omitted) (quoting United States v. Bullock, 451 F.2d 884, 888 (5th Cir. 1971)).

Drawing on these principles, we have previously held that a conviction for aiding and abetting is valid even where the indictment does not allege that an act was done willfully, as long as the court's instructions properly informed the jury that willfulness was an essential element of the crime of aiding and abetting. United States v. Lugo-Baez, 412 F.2d 435, 440 (8th Cir. 1969), cert. denied, 397 U.S. 966, 90 S. Ct. 1000, 25 L. Ed. 2d 257 (1970)."⁴  In the present case, the court instructed the jury:

The guilt of a defendant may be established without proof that she personally did every act constituting the offenses charged.

"Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal."

"Whoever wilfully causes an act to be done, which if directly performed by him or another, would be an offense against the United States, is punishable as a principal."

In other words, every person who wilfully participates in the commission of a crime may be found guilty of that offense. Participation is wilful if done voluntarily and intentionally, and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done; that is to say, with bad purpose either to disobey or to disregard the law.

There is no doubt that this instruction correctly identified for the jury the elements of aiding and abetting as defined in 18 U.S.C. § 2, and under our reasoning in Lugo-Baez, dismissal of the indictment in this case is not warranted. We are aware of those cases which hold a defective indictment is not cured by the court later instructing the jury properly,⁵  however, those cases deal with a substantive offense and not an aiding and abetting theory. Here it is absurd to argue that the indictment is deficient in relating to a section 2 violation since it is not an offense itself and not essential to be pled in order to sustain a conviction of a substantive offense under an aiding and abetting theory. There can be no claim that the defendant was not aware of the accusation and the essential elements of the offense set forth. We therefore find no defect in the indictment.

Jury Instructions

McKnight argues that the trial court erred in failing to instruct the jury that in order to convict her it must find that a judicial proceeding was pending and that she had knowledge thereof. The court instructed the jury on the elements of the crime of obstruction of justice:

1. The defendant destroyed documents which had been subpoenaed in connection with an investigation by a federal grand jury.

2. That by destroying said documents, the defendant endeavored to influence, obstruct or impede the due administration of justice in the matter then under investigation by the grand jury.

3. That the defendant's acts were done knowingly, willfully and corruptly.

McKnight did not object to this instruction at trial nor did she proffer the instruction to which she now claims she was entitled.

The law is clear that the failure to object to a jury charge in a timely and specific manner results in a waiver of objection on appeal. United States v. Young, 702 F.2d 133, 136 (8th Cir. 1983); Fed. R. Crim. P. 30. Where a party fails to object to jury instructions in a timely manner, an appellate court may reverse a judgment only if the trial court committed plain error. United States v. Farber, 630 F.2d 569, 572 (8th Cir. 1980), cert. denied, 449 U.S. 1127, 101 S. Ct. 946, 67 L. Ed. 2d 114 (1981). To show plain error, McKnight must demonstrate that the instruction affected her substantial rights resulting in a miscarriage of justice. United States v. Big Crow, 523 F.2d 955, 960-61 (8th Cir. 1975), cert. denied, 424 U.S. 920, 96 S. Ct. 1126, 47 L. Ed. 2d 327 (1976). We find the instruction was a correct statement of the law and properly informed the jury of the findings necessary to convict McKnight.

Sufficiency of the Evidence

McKnight finally contends that the prosecution failed to prove beyond a reasonable doubt that a grand jury proceeding was pending at the time she allegedly destroyed the subpoenaed documents and that she had actual knowledge thereof. Furthermore, she asserts that there was insufficient evidence that the documents allegedly destroyed were the ones subpoenaed by the grand jury. In reviewing challenges to the sufficiency of the evidence, when the evidence is considered in the light most favorable to the government, an appellate court will not reverse if it finds that the jury could have reasonably inferred guilt beyond a reasonable doubt. United States v. Mueller, 663 F.2d 811, 813 (8th Cir. 1981). A review of the record reveals ample evidence to support the jury's verdict.

Accordingly, following a careful review of the record, briefs, and arguments of the parties, this court holds that the trial court's denial of McKnight's motions for judgment of acquittal, new trial, and arrest of judgment was not error.

Judgment of conviction affirmed.