Appeals from the Superior Court of the District of Columbia (M-16614-98, M-16615-98, M-16613-98) (Hon. Truman A. Morrison, III, Trial Judge)
Before Terry and Washington, Associate Judges, and Newman, Senior
The opinion of the court was delivered by: Terry, Associate Judge
Submitted October 4, 2001
Anthony Bell, James Banks, and Thelmuris Forte appeal from convictions of first-degree fraud. Bell, Banks, and Forte, together with a fourth co-defendant, Roland Jones, were found guilty after a nine-day non-jury trial. All three appellants contend, first, that the trial court abused its discretion by admitting the prior inconsistent statement of a trial witness as substantive evidence. Second, each appellant maintains that the evidence was insufficient to sustain his conviction. Finally, Forte claims that the court erred in computing the amount of restitution that he was required to make as part of his sentence. We affirm all three convictions, but remand Forte's case for the purpose of modifying the amount of restitution he must pay.
Bell, Banks, and Forte, along with others, engaged in a scheme to use equipment and materials owned by the District of Columbia and workers employed by the District of Columbia to perform private water pipe repair work for their own profit. These "side jobs" took place at various locations in the District. Forte is a private plumber by trade; Bell and Banks were employees of the District of Columbia Water and Sewer Authority ("WASA"). *fn1
WASA maintains the water mains under the District's streets and the service lines that carry water from the main lines to underground water meters, which are typically located at or just inside property lines. The pipes that run from the meters into buildings are the responsibility of the individual customers. WASA performs maintenance on the lines from the meters to the buildings only if the pipes are in such poor condition that a water meter cannot be connected to them.
In early 1996, Sylvia Robinson Green, the owner of an apartment building in Southeast Washington, contracted with Forte to have a water line connected from her building to the city water service. The agreed price was $4200, well below other bids Ms. Green had obtained from other contractors. As part of the deal, Green agreed to pay $2100 in advance. Forte, in turn, arranged to have the work done by Keith Thames, a plumber and supervisor for WASA. Thames agreed to do the work for a sum between $1400 and $1800 (at trial, his recollection of the exact amount was unclear).
Thames and other workers from WASA, including Banks and Bell, worked on the project during April 1996. The job was done during daytime hours, when the WASA employees should have been working for WASA. At the work site Bell and Banks operated a dump truck and a backhoe with "city symbols" on them. In addition, Ms. Green, the property owner, saw Forte at the work site when she visited it.
The project was never completed because a piece was missing from the plumbing, and because Forte failed to procure some of the necessary permits for the job. When Ms. Green did not pay the full amount agreed upon, Forte went to Green's home accompanied by another man in a "government truck" and demanded the money, but she did not pay him. Thereafter a man named "Keith" telephoned and asked Ms. Green for the money, but she refused to pay him because her deal was with Forte. She told Keith that if he would have Forte bring her the required permits, she would pay him the remainder of what she owed. Forte never produced the permits, and Green never made the second payment. She ultimately hired another plumber to complete the project.
In the meantime, the Metropolitan Police Department began an investigation based on a report that WASA workers were taking bribes to perform private jobs on official time. Sergeant Philip Burton and another officer went at least twice to the work site at Ms. Green's apartment building, where they saw District of Columbia employees wearing uniforms and using equipment marked with District insignia and identification numbers. In particular, the officers saw Banks, Bell, Thames, and a man in a plaid shirt all working there. Later Burton ascertained that the car in which the man in the plaid shirt drove away was registered to Thelmuris Forte.
Sergeant Burton continued his investigation by setting up an undercover operation, which involved additional side jobs at two different locations in other parts of the city. Burton saw Bell working at both of those job sites, and Banks at one of them. According to Thames' plea statement, both Banks and Bell received payment from ...