                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-11-2005

USA v. Evans
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2772




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"USA v. Evans" (2005). 2005 Decisions. Paper 1382.
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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                       No. 03-2772

                           UNITED STATES OF AMERICA

                                             v.

                                    DARRYL EVANS,

                                             Appellant

                                       __________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                          (D.C. No. 02-cr-00166-02)

                     District Judge: The Honorable James T. Giles
                                     ___________

                           ARGUED DECEMBER 13, 2004

           BEFORE: NYGAARD, ROSENN, and BECKER, Circuit Judges.

                                   (Filed April 11, 2005)
                                       ___________

George H. Newman, Esq. (Argued)
Newman & McGlaughlin
834 Chestnut Street, Suite 206
Philadelphia, PA 19107
              Counsel for Appellant

Sarah L. Grieb, Esq. (Argued)
Denise S. Wolf, Esq.
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
              Counsel for Appellee

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

       Appellant Darryl Evans was convicted after a jury trial of three counts of mail

fraud and one count of wire fraud. He was sentenced to a term of six months

imprisonment, three years of supervised release with the first six months under house

arrest, a $300 fine, a $400 special assessment, and $8,879.99 in restitution. On appeal,

Evans challenges the sufficiency of the evidence, and his sentence pursuant to United

States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005). We will affirm in part and vacate

and remand in part.

                                             I.

       Evans, a former lieutenant and the commanding officer of the Mounted Unit of the

Philadelphia Police Department, was involved in a scheme to defraud the Department.

Because of the special needs of the Mounted Unit, it was allowed to contract with an

outside vendor to purchase horseshoe and stable supplies. In cooperation with a supplier,

several officers in the Mounted Unit would order items not permitted by the City’s

contract, knowing that the supplier would then falsely bill the city for permissible items

and add a profit for himself. The supplier created an invoice with the actual items

                                             2
ordered and a false invoice, and then submitted the false invoice to the city. The items

listed on the false invoices were never supplied.

       As commanding officer, Evans was responsible for ensuring that the Unit received

the items listed on the invoices. The Government alleged at trial that Evans had, at times,

directly verified that items had been received when they had not. The Government also

claimed that Evans and other officers concealed from the city the items that were

improperly obtained. A cooperating witness testified that when Evans became

commanding officer, he was told about the scheme and given a choice as to whether he

wanted to continue with the scheme by signing the false invoices. According to the

testimony, Evans knowingly signed the false invoices. Additionally, multiple witnesses at

trial testified that they ordered “off-contract” items at Evans’ direction.

       Evans testified in his own defense. He admitted that he ordered several off-

contract items through the stable supplies contract. Furthermore, he admitted that he did

not follow proper police procedure when he failed to assign property numbers and

inventory various off-contract items. Nonetheless, he denied any knowledge of false

invoices or any criminal intent.

                                              II.

       In reviewing a claim for insufficient evidence, we view the evidence in the light

most favorable to the Government. United States v. Shambry, 392 F.3d 631, 634 (3d Cir.

2004). Evans’ conviction must be affirmed if a reasonable jury could have found him



                                               3
guilty beyond a reasonable doubt and the verdict is supported by substantial evidence. Id.

We will overturn a verdict only where the failure of the prosecution is clear. United

States v. Haywood, 363 F.3d 200, 204 n.3 (3d Cir. 2004). Evans argues that because the

jury acquitted him of some charges, they must have found that he did not authorize the

purchase of falsely “invoiced” items.

       Given the testimony by cooperating witnesses, the documentary evidence

regarding the off-contract purchasing scheme, and Evans’ testimony at trial, a reasonable

jury could have found Evans guilty beyond a reasonable doubt. Evans has failed to

overcome the heavy burden placed on a defendant challenging the sufficiency of the

evidence. See id.

                                            III.

       Evans also raises several challenges to his sentence. Having determined under

United States v. Booker, 543 U.S. __, 125 S. Ct. 738 (2005), that the sentencing issues

Evans raises are best determined by the District Court in the first instance, we vacate the

sentence and remand for resentencing in accordance with Booker.




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