JOHN J. GUMBS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
Gumbs v. People
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, concurring in part and dissenting in part.
JOHN J. GUMBS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
JOHN J. GUMBS, Appellant/Defendant v. PEOPLE OF THE VIRGIN ISLANDS, Appellee/Plaintiff
S. Ct. Criminal No. 2010-0034
Supreme Court of the Virgin Islands
September 20, 2013
Kele C. Onyejekwe, Esq., Territorial Public Defender, St. Thomas, USVI, Attorney for Appellant.
Terryln M. Smock, Esq., Assistant Attorney General, St. Thomas, USVI, Attorney for Appellee.
HODGE, Chief Justice; CABRET, Associate Justice; and SWAN, Associate Justice. SWAN, Associate Justice, concurring in part and dissenting in part.
OPINION OF THE COURT
(September 20, 2013)
Hodge, Chief Justice.
Appellant John J. Gumbs appeals his convictions for violating the Criminally Influenced and Corrupt Organizations Act, 14 V.I.C. § 600 et seq. ("CICO") and obtaining money by false pretenses. For the reasons that follow, we affirm.
I. STATEMENT OF RELEVANT FACTS AND PROCEDURAL POSTURE
Between January 2003 and August 2005, Gumbs operated the John Gumbs Insurance Agency, where he worked as its only licensed insurance agent. (J.A. Vol. 2 at 41.) In response to complaints that the agency was not turning over premiums to Guardian Insurance, the Lieutenant Governor's Office initiated an examination of the company. (J.A. Vol. 2 at 45-48.) The examination allegedly revealed "a wide pattern of insurance fraud by Mr. Gumbs." (J.A. Vol. 1 at 43.) Specifically, the examiners alleged that Gumbs had taken $176,145.31 from 248 individuals in exchange for providing insurance coverage, but that he had never transmitted the premiums to the insurance companies. (J.A. Vol. 1 at 44.) According to the examiners, this caused these individuals to falsely believe that they had obtained insurance coverage, when in fact they had not, because Gumbs had never transferred the premiums to the insurance companies responsible for providing the insurance. (J.A. Vol. 1 at 43-44.) Based on this information, the People charged Gumbs with violating CICO and obtaining money by false pretenses. (J.A. Vol. 1 at 27-28.)
On March 1, 2010, a three day jury trial commenced. (J.A. Vol. 1 at 19-22.) At trial, the People presented evidence that, between January 2003 and August 2005, Gumbs, as an insurance agent for John Gumbs Insurance Agency, took approximately $88,560.84 in premiums from 175 individuals in exchange for various types of insurance from Guardian Insurance, but never transmitted the premiums to Guardian Insurance, as required. (J.A. Vol. 2 at 185-86.) The People presented specific evidence that during this time period Deep Life Christian Ministries paid Gumbs premiums of $1,480.80, $1,585.46, and $1,286.67 respectively for three car insurance policies on three separate occasions, but that Gumbs never transmitted the premiums to Guardian Insurance and Deep Life Christian Ministries never obtained insurance. (J.A. Vol. 2 at 180-83, 229-36.) Similarly, the People presented evidence that Gumbs had collected at least $579.42 in premiums from Living Word Ministries for car insurance, but that he had failed to transmit these funds to Guardian Insurance. (J.A. Vol. 2 at 183-84, 252-57.) Likewise, the People introduced evidence that Gumbs collected approximately $6,000 from Adastin and Yvonne Waldron to renew a homeowner's insurance policy that he never renewed. (J.A. Vol. 3 at 147-52.)
The People also presented evidence that between November and December 2005 — after he sold the John Gumbs Insurance Agency in August 2005 — Gumbs contacted Carol Victorine, as her insurance agent, and told her that her homeowner's insurance needed to be renewed before January 11, 2006. (J.A. Vol. 2 at 65-68.) After meeting her in person on December 9, 2005, Victorine tendered $3,500 in cash towards her $4,530 premium. (J.A. Vol. 2 at 68-69.) Then on January 30, 2006, Victorine paid Gumbs an additional $1,050 to cover her remaining balance plus a late fee. (J.A. Vol. 2 at 69-70.) At trial, Victorine testified that she later learned from her bank that her homeowner's insurance was never renewed, which required her to obtain homeowner's insurance from another insurance company. (J.A. Vol. 2 at 70-81.)
The jury returned a verdict on March 3, 2010, finding Gumbs guilty on both counts of the information. Gumbs filed his timely notice of appeal on May 25, 2010. (J.A. Vol. 1 at 18.) In a June 15, 2010 Judgment and Commitment, the Superior Court sentenced Gumbs to ten years incarceration, with three years suspended, for each count, with the sentences to run concurrently. (J.A. Vol. 1 at 19-24.) Additionally, the Superior Court assessed a $10,000 fine and ordered him to pay restitution in the amount of $99,129.94 for violating CICO. (J.A. Vol. 1 at 24.)
II. DISCUSSION
A. Jurisdiction and Standard of Review
Title 4, section 32(a) of the Virgin Islands Code vests this Court with "jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court, or as otherwise provided by law." The written judgment embodying the adjudication of guilt and the sentence imposed based on that adjudication constitutes a final judgment. See, e.g., Jackson-Flavius v. People, 57 V.I. 716, 721 (V.I. 2012) (citing Potter v. People, 56 V.I. 779, 787 (V.I. 2012)). Therefore, we possess jurisdiction to hear this appeal.
"Ordinarily, the standard of review for this Court's examination of the Superior Court's application of law is plenary, while findings of fact are reviewed for clear error." Rawlins v. People, 58 V.I. 261, 268 (V.I. 2013) (quoting St. Thomas-St. John Bd. of Elections v. Daniel, 49 V.I. 322, 329 (V.I. 2007)). However, when a criminal defendant fails to object to a Superior Court decision or order — as is the case with every issue Gumbs has raised on appeal — this Court only reviews for plain error, provided that the challenge has been forfeited rather than waived. See V.I.S.Ct.R. 4(h); see also Francis v. People, 52 V.I. 381, 390 (V.I. 2009). For this Court to reverse the Superior Court under the plain error standard of review, "there must be (1) 'error,' (2) that is 'plain,' and (3) that 'affect[s] substantial rights.' " Id. (quoting Johnson v. United States, 520 U.S. 461, 466-67, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997)). However, even "[i]f all three conditions are met," this Court may reverse the Superior Court "only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 390-91.
B. Sufficiency of the Evidence
Gumbs argues that this Court should vacate his conviction for violating CICO because the People purportedly failed to prove a pattern of criminal activity. Specifically, he contends that in order to secure a conviction under CICO, the People were required to prove that he committed at least two criminal acts, one of which was a felony.
Pursuant to CICO, "[i]t is unlawful for any person employed by, or associated with, any enterprise . to conduct or participate in, directly or indirectly, the affairs of the enterprise through a pattern of criminal activity." 14 V.I.C. § 605(a). CICO defines "criminal activity" as
engaging in, attempting to engage in, conspiring to engage in, or soliciting, coercing, or intimidating another person to engage in the crimes, offenses, violations or the prohibited conduct as variously described in the laws governing this jurisdiction including any Federal criminal law, the violation of which is a felony and, in addition, those crimes, offenses, violations or prohibited conduct as found in the Virgin Islands Code as follows:
(16) Title 14, chapter 41, Virgin Islands Code, relating to fraud and false statements;
(19) Title 14, chapter 55, Virgin Islands Code, relating to larceny and embezzlement....
14 V.I.C. § 604(e). And CICO further defines a "pattern of criminal activity" as "two or more occasions of conduct (1) that (A) constitute criminal activity; (B) are related to the affairs of the enterprise; and (C) are not isolated; and (2) where____(C) for the purposes of section 606 [Criminal penalties] of this chapter... at least one of the occasions of conduct constituted a felony under the Virgin Islands Code . . . ." 14 V.I.C. § 604(j). Thus, Gumbs is correct that, to sustain a conviction under CICO, the People must prove, beyond a reasonable doubt, that a defendant committed at least one felony.
We find that the People easily met their burden in this case. In the information, the People identified embezzlement or obtaining money by false pretenses as the offenses constituting Gumbs's pattern of criminal activity. (J.A. Vol. 1 at 27.) While Gumbs correctly notes that these offenses are punishable as either misdemeanors or felonies depending on the value of the money that was embezzled or falsely obtained, he ignores that this Court, when reviewing the sufficiency of the evidence, must view the evidence in the light most favorable to the People, and provide the People with the benefit of all reasonable inferences. Latalladi v. People, 51 V.I. 137, 145 (V.I. 2009); see also Mulley v. People, 51 V.I. 404, 409 (V.I. 2009) (noting that the evidence offered in support of a conviction "need not be inconsistent with every conclusion save that of guilty, so long as it establishes a case from which a jury could find the defendant guilty beyond a reasonable doubt" (quoting United States v. Carr, 25 F.3d 1194, 1201 (3d Cir. 1996))). Importantly, when the elements of a criminal offense require the People to prove that the defendant committed an underlying felony, even an acquittal on the predicate felony would not justify setting aside a conviction for the compound felony if the People introduced sufficient evidence for the jury to convict the defendant of the predicate felony. See, e.g., United States v. Powell, 469 U.S. 57, 69, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984); People v. Thompson, 57 V.I. 342, 350-51 (V.I. 2012); People v. Faulkner, 57 V.I. 327, 333-34 (V.I. 2012).
Under Virgin Islands law, both embezzlement and obtaining money by false pretenses constitute felonies if the money embezzled or unlawfully obtained is $100 or more, and misdemeanors if less than $100 in value. 14 V.I.C. § 834(l)-(2); 1094(a)(l)-(2). At trial, the People presented overwhelming evidence that, on multiple occasions, Gumbs collected monies greatly in excess of $100 and never transmitted the funds to the pertinent insurance companies, including, but not limited to, (1) collecting premiums of $1,480.80, $1,585.46, and $1,286.67 for three car insurance policies, on three separate occasions, from Deep Life Christian Ministries; (2) collecting $579.42 from Living Word Ministries for car insurance; and (3) obtaining approximately $6,000 from the Waldrons to renew their homeowner's insurance policy. (J.A. Vol. 2 at 180-84; Vol. 3 at 147.) Consequently, the People introduced more than sufficient evidence to establish a pattern of criminal activity under CICO.
C. Verdict Forms
Similarly, Gumbs requests that this Court set aside his conviction for obtaining money under false pretenses — which was predicated on his taking $4,550 from Victorine — on the grounds that the Superior Court failed to comply with section 3636 of title 5 of the Virgin Islands Code, which provides that "[w]hen an information charges an offense against property by larceny, embezzlement, or obtaining by false pretenses, the jury, on conviction, shall ascertain and declare in the verdict the value of the property stolen, embezzled, or falsely obtained." However, since Gumbs failed to object to this omission at trial, we review solely for plain error. As this Court has recently explained, a failure to comply with section 3636 does not affect a defendant's substantial rights if the evidence at trial establishes the value of the stolen property exceeds the amount set forth in the pertinent statute and the judge properly instructs the jury on the elements of the charged offenses. Connor v. People, S. Ct. Crim. No. 2011-0021, 2013 V.I. Supreme LEXIS 31 at *21-22 (V.I. July 2, 2013). As in Connor, the overwhelming, uncontradicted evidence in the record — none of which Gumbs even attempted to dispute — established that the amount of funds Gumbs falsely obtained greatly exceeded $100, and the Superior Court correctly instructed the jury that, to convict Gumbs of obtaining money by false pretenses, it must find beyond a reasonable doubt that the value of the funds exceeded $100. (J.A. Vol. 4 at 249.) Accordingly, the jury's failure to declare the value of the money falsely obtained did not affect Gumbs's substantial rights, and therefore does not warrant reversal.
III. CONCLUSION
The People introduced sufficient evidence to sustain Gumbs's conviction for violating CICO. Moreover, while the Superior Court committed error by failing to comply with section 3636 of title 5, that error did not affect Gumbs's substantial rights. Thus, we affirm the June 15, 2010 Judgment and Commitment.
In his appellate brief, Gumbs argues that the pertinent portion of the information, which stated that he "committed acts of embezzlement or obtaining money by false pretenses," should have been pleaded in the conjunctive and not the disjunctive. Since Superior Court Rule 128(a), and not Federal Rule of Criminal Procedure 12(b)(3)(B), governs challenges to the sufficiency of the information, and because Gumbs never challenged this language at any point before the Superior Court — let alone prior to trial — we question whether it is appropriate for us to review this issue even for plain error. See DeGroot v. People, S. Ct. Crim. No. 2008-0107, 2013 V.I. Supreme LEXIS 16 at *5-6 n.1 (V.I. Apr. 29, 2013) (unpublished) (citing Tindell v. People, 56 V.I. 138, 148 (V.I. 2012). Nevertheless, we do not hesitate in concluding that the information in this case was more than sufficient. See United States v. Saybolt, 577 F.3d 195, 204-05 (3d Cir. 2009); FED. R. CRIM. P. 7(c)(1) (an information must be "a plain, concise, definite written statement of the essential facts constituting the offense charged.").
In his brief, Gumbs also invokes United States v. Carrillo, 229 F.3d 177 (2d Cir. 2000), a case interpreting the federal Racketeer Influenced and Corrupt Organizations Act ("RICO"), upon which our local CICO statute was modeled, see Charleswell v. Chase Manhattan Bank, N.A., 308 F. Supp. 2d 545, 562, 45 V.I. 495 (D.V.I. 2004), for the proposition that the Superior Court, when giving its final jury instructions, should have fully set forth all the elements of embezzlement and obtaining money by false pretenses. However, the Carrillo decision expressly recognizes that a trial court may "charge a predicate RICO offense by a generic description rather than giving the jury the elements in full," even though fully setting forth the elements "is the best practice," 229 F.3d at 185, and in the present case the People's proof established the elements of both predicate offenses beyond a reasonable doubt, hence there was no prejudice to this defendant and no abuse of discretion in the instructions as given in this case.
Gumbs also argues in his appellate brief that the jurors were "confused" by the fact that count one of the information charged CICO with obtaining money by false pretenses as a predicate felony, while count two also charged him with obtaining money by false pretenses. (Appellant's Br. 24.) According to Gumbs, this resulted in "a lack of juror unanimity" because the jurors "obviously confused count one and count two as the same offense." (Id.) However, the record clearly reflects that the obtaining money by false pretenses alleged as the predicate CICO felony in count one referred solely to Gumbs's activities while serving as the owner of the John Gumbs Insurance Agency between January 2003 and August 2005 (J.A. Vol. 1 at 27), while count two charged Gumbs with obtaining money by false pretenses from Victorine in November or December 2005, several months after Gumbs had sold the John Gumbs Insurance Agency. (J.A. Vol. 1 at 28; J.A. Vol. 2 at 65-69.) Thus, the jury convicted Gumbs for violating CICO based on his actions between January 2003 and August 2005, and convicted him for obtaining money by false pretenses based on his actions between November 2005 and December 2005.
Gumbs also argues, in a portion of his appellate brief -which is only two paragraphs long without citation to meaningful legal authority other than for the standard of review, that this Court should vacate both of his convictions because the Superior Court should have dismissed one of the jurors — Juror No. 12 — for bias because (1) she appeared to be aware of some of the documents relating to the litigation, and (2) two prosecution witnesses were clients of the law firm that employed her. However, Gumbs has provided this Court with absolutely no citation to the record to support his claim that Juror No. 12 possessed pre-trial knowledge of the evidence, and this Court, in its own independent review of the record, can find none. Moreover, the record reflects that Juror No. 12 disclosed during voir dire her knowledge of the two witnesses, and, when asked by the trial judge if she could nevertheless "listen to the evidence and render a decision solely on the evidence," Juror No. 12 responded "Yes." (J.A. Vol. 1 at 101.) And when further asked if she "[wjould... give more weight to their testimony" or "believe them more because they were clients at your firm," she responded "No." (Id.) Since this Court accords "great deference" to the trial judge in such matters, see Vergile v. People, 54 V.I. 455, 461 (V.I. 2010), we decline to consider this issue in light of Gumbs's complete failure to provide any reasoned argument or authority in his brief. See V.I.S.Ct.R. 22(m) ("Issues that... are only adverted to in a perfunctory manner or unsupported by argument and citation to legal authority [] are deemed waived for purposes of appeal....").