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United States v. Wingate

November 5, 1997

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

v.

DALE K. WINGATE, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division.

No. 2:95 CR 115 -- James T. Moody, Judge.

Before POSNER, Chief Judge, and MANION and DIANE P. WOOD, Circuit Judges.

MANION, Circuit Judge.

ARGUED SEPTEMBER 19, 1997

DECIDED NOVEMBER 5, 1997

Dale Wingate, a Special Agent employed by the United States Immigration and Naturalization Service (INS), was indicted for depriving the INS of his honest services. Wingate was accused of providing unauthorized governmental benefits to persons who previously, or might in the future, assist Wingate to adopt children. A jury convicted Wingate on one count each of mail fraud, wire fraud, and harboring an illegal alien, and two counts of transporting an illegal alien. Wingate appeals his conviction; we affirm.

I.

The facts drawn from the record in this jury trial and all reasonable inferences therefrom we view in a light most favorable to the government. United States v. Katalinich, 113 F.3d 1475, 1480 (7th Cir. 1997). Dale Wingate began his career in the INS in 1976 as a Special Agent, and during his career at the INS, he was promoted to Special Agent in the Chicago office of the fraud unit of the investigation branch of the INS. Prior to that, he served in the Vietnam War, and remains an army reservist. Special Agents are law enforcement officials: they carry badges; they work with informants and other information sources to discover illegal aliens; and they make arrests of persons violating U.S. immigration law.

In 1989, Wingate and his second wife, Susan, went to Lima, Peru, and adopted twin girls from a Peruvian national named Martha Oncebay. The Wingates then returned to the United States with their new daughters. Two years later, Oncebay was expecting another child, and the Wingates provided her with a round-trip airline ticket to come to the United States. On October 20, 1991, Susan Wingate admitted Oncebay to an Indiana hospital. On October 21, 1991, Wingate arrived in Indiana from California, where he was serving in the military due to Desert Storm, and went to the hospital. He showed his badge as identification, represented to the admitting clerk that his wife Susan was having a baby, and sought insurance coverage for the delivery. The hospital later discovered that Oncebay, not Susan Wingate, was having the baby, and changed the medical records to reflect this. That same day, Oncebay delivered a baby boy. The Wingates adopted this baby.

After the adoption Oncebay stayed in the United States, residing in Miami, Florida for a time. In July 1993, after her visa had expired, she returned to Indiana, where Wingate provided additional help to her. He and his family members transported Oncebay to her daily job at the Oneida Mexican Restaurant in Valparaiso, Indiana. Without proper authorization, Wingate provided Oncebay with a Voluntary Departure Notice, known as an I-210 form, which purported to authorize her to remain in the United States until July 11, 1994. Oncebay lived with the Wingates for at least part of the summer in 1993.

While in Miami, Oncebay had obtained a restricted Social Security card that did not authorize her to work in the United States. During the summer of 1993, Wingate accompanied Oncebay to the Social Security Administration Office in Hammond, Indiana to obtain a replacement Social Security card. Wingate displayed his badge to an SSA employee, and stated that Oncebay was entitled to a new Social Security card authorizing her to work. *fn1 The agent processed the request for the replacement Social Security card, which included the provision that Oncebay was authorized to work in the United States. The agent then directed the card to be mailed in Oncebay's name to the Wingates' home address. Oncebay was not legally authorized to work, and without the replacement card, no employer could hire her.

In late summer 1993, while on a family vacation, Wingate transported Oncebay to Moline, Illinois, in an attempt to secure employment for her at the IBP meat processing plant. Upon arriving in Moline, the Wingates and Oncebay met with Father Manuel Munoz, a Catholic priest. Many of Munoz's congregation worked at IBP. Wingate, Oncebay, and Munoz all went to IBP, but only Wingate and Oncebay actually went to the interview.

Wingate filled out the application for Oncebay, filling in the information that he knew and asking her for other information. Randy Kundert, the employment manager, questioned the INS documentation and work authorization papers which Wingate had previously provided to Oncebay. At that point, Wingate identified himself as a Special Agent of the INS, displayed his badge, and represented that Oncebay was a legal alien and authorized to work in the United States. After completing the application process and interview, Wingate left Oncebay with Munoz and returned to Indiana. Shortly thereafter, Munoz called the Wingate residence and told Susan that Oncebay was not hired by IBP. Oncebay then returned to Chesterton, Indiana.

Because Kundert remained suspicious of the documentation produced by Oncebay and Wingate, he contacted the INS. This led to Oncebay's arrest and the eventual indictment of Wingate on five counts: wire fraud (the telephone call from Munoz to the Wingate residence); mail fraud (the mailing of the Social Security card to Oncebay at Wingate's ...


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