United States v. Inc. ( 1993 )


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  • USCA1 Opinion









    February 19, 1993
    UNITED STATES COURT OF APPEALS
    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    FOR THE FIRST CIRCUIT

    ____________________

    No. 92-1536
    UNITED STATES,

    Appellant,

    v.

    BARKER STEEL CO., INC., AND
    ROBERT B. BRACK,

    Defendants, Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Joseph L. Tauro, U.S. District Judge]
    ___________________
    ____________________

    Before

    Cyr, Circuit Judge,
    _____________
    Bownes, Senior Circuit Judge,
    ____________________
    and Fuste,* District Judge.
    ______________
    ____________________

    Peter A. Mullin, Assistant United States Attorney, with whom
    _______________
    A. John Pappalardo, United States Attorney, and Andrew E.
    ____________________ __________
    Lauterback, Special Assistant United States Attorney were on
    __________
    brief, for appellant.
    Paul F. Ware, Jr., with whom John C. Englander, Jeremy
    ___________________ __________________ ______
    Sternberg, and Goodwin, Procter & Hoar, Earle C. Cooley, and
    _________ ________________________ ________________
    Cooley, Manion, Moore & Jones were on brief, for defendants,
    ________________________________
    appellees.

    ____________________

    February 19, 1993
    ____________________

    ____________________

    *of the District Court of Puerto Rico, sitting by designation.




















    BOWNES, Senior Circuit Judge. The government appeals
    ____________________

    the dismissal of an Information which charged the defendants,

    Barker Steel Co., Inc. and Robert B. Brack, with engaging in

    a conspiracy to defraud the United States in violation of 18

    U.S.C. 371. The Information alleged that the defendants

    fraudulently obtained Minority Business Enterprise and

    Disadvantaged Business Enterprise (MBE) "set aside"

    contracts. The district court found that the Information was

    insufficient to sustain the charges and dismissed it.1 For

    the reasons that follow, we reverse and remand for trial.


    I.
    I.

    Standard of Review
    Standard of Review
    __________________

    On appeal from the dismissal of an information, we

    take the factual allegations in the information as true, and

    we must reverse the dismissal if we find that, as a matter of

    law, the information sufficiently sets forth the elements of

    the offense charged. United States v. Torkington, 812 F.2d
    _____________ __________

    1347, 1354 (11th Cir. 1987). We read an information as a

    whole and we construe the allegations in a practical sense,

    with all necessary implications.2 United States v.
    _______________


    ____________________

    1 United States v. Barker Steel Co., Inc., 774 F. Supp. 65
    _____________ ______________________
    (D. Mass. 1991).

    2 Prior to 1971, 18 U.S.C. 3731 limited government appeals
    from dismissed informations or indictments to issues of law.
    On appeal, the court was bound to accept the lower court's

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    nom., Zero v. United States, 459 U.S. 991 (1982); United
    ____ ____ _____________ ______
    Cincotta, 689 F.2d 238, 242 (1st Cir.), cert. denied sub
    ________ _____ ______ ___







    law, including the lower court's interpretation of a statute,
    (5th Cir.), cert. denied, 427 U.S. 903 (1978). Questions of
    _____ ______
    States v. Cadillac Overall Supply Co., 568 F.2d 1078, 1082
    ______ ____________________________





    are reviewed de novo. United States v. M.I.M., 932 F.2d
    __ ____ _____________ ______







































    construction by lower court).

    -3-
    States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990)
    ______ _________
    and removed the restrictions on appeal. But see United
    ___ ___ ______

    (following former rule and limiting review of allegations to
    An information should be "a plain, concise and





    An information is sufficient if it "first, contains the
    constituting the offense charged." Fed. R. Crim. P. 7(c)(1).



    elements of the offense charged and fairly informs a
    definite written statement of the essential facts









    second, enables him to plead an acquittal or conviction in
    defendant of the charge against which he must defend, and,
    1016, 1019 (1st Cir. 1991).















    bar of future prosecutions for the same offense." Hamling v.
    _______



    United States, 369 U.S. 749, 763-64 (1962); United States v.
    _____________ _____________





    language of the statute as long as the core facts of the
    information is sufficient when allegations are made in the



    criminality charged are also included. Russell 369 U.S. at
    _______
    Penagaricano-Soler, 911 F.2d 833, 839 (1st Cir. 1990). An
    __________________










    ____________________
    764; Penagaricano-Soler, 911 F.2d at 839-40; United States v.
    __________________ ________________
    United States, 418 U.S. 87, 117 (1974); accord Russell v.
    _____________ ______ _______















    construction of allegations. Congress amended 3731 in 1971
    Allard, 864 F.2d 248, 250 (1st Cir. 1989) ("The test for
    ______

    sufficiency, therefore is not whether, in hindsight, the

    indictment or information could have been more complete, . .

    . but rather whether it fairly identifies and describes the

    offense." (citations omitted)). Therefore, we examine the

    Information as a whole to determine whether it sufficiently

    charges the offense proscribed by the conspiracy statute.


    II.
    II.

    The Information
    The Information
    _______________

    To begin, we summarize the key allegations of the

    Information. The government's allegations concerning the

    defendants' conspiracy to defraud the United States focus on

    the MBE programs of several federal agencies, the U.S.

    Department of Transportation (DOT), the Environmental

    Protection Agency (EPA), and the General Services

    Administration (GSA). These federal agencies intended the

    MBE programs to "support[] the fullest possible

    participation of firms owned and controlled by certain racial

    minorities and women in the construction programs funded and

    assisted by these departments and agencies." Information at

    6. To that end, the MBE programs required that recipients

    of funds from federal agencies establish goals or set aside a

    percentage of federal funds received for contracts to

    certified MBE businesses. Information at 7.




    -4-















    Federal agencies with MBE programs rely upon state

    and local governments to certify applicants as qualified

    minority businesses. Information at 9. To qualify for MBE

    certification, at least fifty-one percent of the ownership of

    the enterprise must be by certain minority groups, and the

    minority owners must also control the daily operations of the

    business. Information at 6. To implement the MBE program,

    the entity receiving federal agency funding hires general

    contractors to perform the work, who in turn award

    subcontracts to certified MBEs to meet the percentage goal

    for the project. For subcontract work to qualify for MBE

    goals or set aside contracts, the MBE certified firm must

    perform a "commercially useful function in the execution of

    the project by actually performing, managing and supervising

    the work involved." Information at 10. For materials and

    supplies to qualify, the MBE certified firm must "either

    produce the goods from raw materials or substantially alter

    the goods before reselling them." Information at 10.

    The Information alleges that from about October,

    1982, until at least July, 1986, Barker Steel Company

    (Barker) and its president, director and majority

    stockholder, Robert B. Brack (Brack), conspired with others

    to use Rusco Steel Company (Rusco) as a front company to win

    MBE set aside contracts for Barker. Information at 13.

    Barker was a Massachusetts corporation which furnished



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    fabricated steel reinforcing bars (re-bars) and other

    products to the construction industry throughout New England.

    Barker was never a certified MBE. Information at 1, 11.

    Rusco, located in Rhode Island, had been certified as an MBE

    in several states before the scheme with the defendants

    began. Information at 3, 15.

    The steel re-bar industry includes two distinct

    functions: fabricators and erectors. Firms which operate as

    fabricators "cut and bend the re-bars to meet the

    specifications of a particular construction project and then

    deliver the re-bars to the construction site." Information

    at 5. The industry term for the work done by fabricators

    is "furnish" work. Id. Firms known as erectors "place the
    ___

    fabricated re-bars within the forms, at the job site, prior

    to the pouring of the concrete." Information at 5.

    Erector firms do "erection" work. Id.
    ___

    In October, 1982, Barker agreed with Rusco that

    Barker would finance a new division of Rusco for erecting

    steel re-bar, "erection" work. Information at 5, 16. In

    exchange, Rusco would allow Barker to market its steel

    products through Rusco for re-bar "furnish" contracts to take

    advantage of Rusco's MBE certification. Information at

    13, 16. Prior to 1982, Rusco had operated as a broker of

    steel re-bar but had not fabricated re-bar or erected re-bar.

    Information at 15. Beginning in 1982, Barker employees



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    managed all aspects of the fabrication, sales and shipping of

    steel re-bar and other products in its own name and in

    Rusco's name when contracts required MBE certification.

    Information at 16, 19, 20. Barker employees and Brack

    exercised substantial control over Rusco throughout this

    period. Information at 22, 25. In 1985, the defendants

    merged a subsidiary company into Rusco, to deceive state MBE

    certifying agencies about Rusco's eligibility for MBE

    certification. Information at 25, 43.

    As part of the scheme, Rusco submitted documentation

    to various state and local agencies for the purpose of

    obtaining or maintaining certification as an MBE.

    Information at 32, 26, 41, 47. The documents submitted by

    Rusco contained false, misleading and fraudulent statements

    as well as material omissions. Id. The Information concludes
    ___

    that as a result of the conspiracy, more than $5 million in

    federally funded and federally assisted construction

    contracts were improperly credited toward MBE goals when the

    contracts actually benefitted Barker, which was not an MBE

    firm. Information at 15. The conspiracy, according to the

    Information, impeded, impaired, obstructed and defeated the

    implementation, execution and administration of the MBE

    programs of DOT, EPA and GSA. Information at 12.


    III.
    III.

    Discussion
    Discussion
    __________


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    The district court dismissed the Information on the

    grounds that: (1) it failed to allege a violation by the

    defendants of any MBE program statute; (2) it did not

    clearly state a violation by the defendants of a duty owed to

    the federal government, and (3) it failed to allege direct

    contact with federal agencies. The defendants contend that

    because the MBE program does not impose criminal penalties or

    any obligations upon them, they were not fairly warned that

    the conduct alleged in the Information could give rise to

    criminal charges. In further support of the dismissal of the

    Information, the defendants add that their alleged conduct

    was not fraud because it did not deprive the federal

    government of any money or property. The government counters

    that the Information properly and sufficiently alleged that

    the defendants conspired to defraud the federal government in

    violation of 18 U.S.C. 371.


    A. Legal Sufficiency of the Information
    A. Legal Sufficiency of the Information
    ____________________________________

    The Information charges that the defendants conspired

    with others to defraud the United States in violation of 18

    U.S.C. 371. The pertinent language of 371 provides as

    follows:

    If two or more persons conspire either
    to commit any offense against the United
    States, or to defraud the United States,
    or any agency thereof in any manner or
    for any purpose, and one or more of such
    persons do any act to effect the object
    of the conspiracy each shall be fined not


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    more than $10,000 or imprisoned not more
    than five years, or both.

    18 U.S.C. 371. To sufficiently charge a conspiracy to

    defraud, the Information must allege the three essential

    elements of section 371: "an agreement, the unlawful

    objective of the agreement, and an overt act in furtherance

    of the agreement." United States v. Hurley, 957 F.2d 1, 4
    ______________ ______

    (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3256 (U.S. Oct. 5,
    _____ ______

    1992). The objective of the agreement is unlawful if it is

    "'for the purpose of impairing, obstructing or defeating the

    lawful function of any department of Government.'" Dennis v.
    _________

    United States, 384 U.S. 855, 861 (1966); (quoting Haas v.
    _____________ ____

    Henkel, 216 U.S. 462, 479 (1910)).
    ______

    In this case, the government alleged the defendants'

    conspiracy to defraud in the language of the statute as

    follows:

    the defendants herein, BARKER STEEL CO.,
    INC. and ROBERT B. BRACK, did knowingly,
    willfully and unlawfully combine,
    conspire, confederate and agree with
    others, known and unknown, to defraud the
    United States by impeding, impairing,
    obstructing and defeating the lawful
    governmental function of various
    departments and agencies of the United
    States, including particularly USDOT, EPA
    and GSA, in the implementation, execution
    and administration of their respective
    MBE programs.
    . . .

    (All in violation of Title 18 United
    States Code, Section 371.)




    -9-















    Information at 12, and final statement at page 13. The

    Information also includes detailed factual allegations to

    substantiate the cursory statutory allegations. The

    defendants conspired with Rusco and others to establish Rusco

    as a front company which the defendants used to obtain MBE

    set aside contracts for furnishing steel re-bar on

    construction projects funded in part by federal agencies.

    The defendant corporation, Barker, was not an MBE and was,

    therefore, not entitled to MBE contracts. Although Rusco may

    have been a properly certified MBE at one time, during the

    relevant period of the defendants' scheme, they financed and

    controlled Rusco, thereby destroying its eligibility as an

    MBE. Rusco maintained its MBE certification by supplying

    false and misleading documentation to certifying agencies.

    We continue our analysis of the sufficiency of the

    Information to determine whether 371 provided fair warning

    to the defendants that their conduct, as alleged, violated

    the statute.


    B. Sufficiency of the Allegations of Conspiracy
    B. Sufficiency of the Allegations of Conspiracy
    ____________________________________________

    The defendants do not contend that the Information

    failed to allege a conspiracy, nor did the district court so

    find, and we find no deficiency. "The gist of conspiracy is

    an agreement to disobey or to disregard the law." United
    ______

    States v. Drougas, 748 F.2d 8, 15 (1st Cir. 1984); accord
    ______ _______ ______

    United States v. Batista-Polanco, 927 F.2d 14, 19 (1st Cir.
    _____________ _______________


    -10-















    1991); Penagaricano-Soler, 911 F.2d at 840. The Information
    __________________

    alleges that the defendants conspired with others, known and

    unknown, to defraud the government and goes on to allege

    conduct by the defendants, their employees, Rusco, and others

    in furtherance of the conspiracy. Information at 12 and

    passim.
    ______

    The defendants argue, however, that because Rusco was

    not named or charged as a co-conspirator in the Information,

    actions by Rusco cannot be alleged to support the charges

    against the defendants. There is no requirement that co-

    conspirators be identified in an information, nor is there a

    requirement that co-conspirators be charged with the same

    offense to sustain the conviction of one co-conspirator.

    Penagaricano-Soler, 911 F.2d at 840 n.5; United States v.
    __________________ ______________

    Sachs, 801 F.2d 839, 845 (6th Cir. 1986). Although Rusco is
    _____

    not charged or named as a co-conspirator, the Information

    alleges action which includes Rusco as a participant with the

    defendants in the scheme to defraud the MBE programs.

    Information at 13, 16. The reasonable inference from

    those allegations is that Rusco was operating as a co-

    conspirator. Further, the Bill of Particulars specifically

    identifies Rusco as a co-conspirator.3 It is well settled


    ____________________

    3 While a bill of particulars cannot cure a defective
    indictment, it can provide notice of detail missing from an
    information. See Fed. R. Crim. P. 7(e); 1 Charles A.
    ___
    Wright, Federal Practice and Procedure Criminal 2d 129
    (1982); United States v. Prince, 868 F.2d 1379, 1384 (5th
    _____________ ______

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    that members of a conspiracy are legally responsible for the

    actions of a co-conspirator taken in furtherance of the

    scheme. Pinkerton v. United States, 328 U.S. 640, 646-47
    _________ _____________

    (1945); United States v. Baines, 812 F.2d 41, 42 (1st Cir.
    _____________ ______

    1987); United States v. Fusaro, 708 F.2d 17, 21 (1st Cir.
    _____________ ______

    1983). Therefore, actions by Rusco to obtain or maintain MBE

    certification are properly alleged as elements of the

    conspiracy.



    C. Sufficiency of the Allegations of Fraud
    C. Sufficiency of the Allegations of Fraud
    _______________________________________

    The conspiracy statute proscribes two different

    conspiracies: one to commit a specific offense, the "offense

    clause," and the other to defraud the United States "in any

    manner or for any purpose," the "defraud clause." Hurley,
    ______

    957 F.2d at 3. The defendants were charged under the

    "defraud clause" of 371.

    At the start of our analysis, we acknowledge that the

    defraud clause of 371 has been criticized for its general

    language and potentially broad sweep. Dennis v. United
    ______ ______

    States, 384 U.S. 855, 860 (1966). Further, because there are
    ______

    no common law crimes against the United States, we must

    determine whether the defendants' alleged conduct is

    "'plainly and unmistakably' within the province of [ 371]."


    ____________________

    Cir. 1989) (observing that an information, unlike an
    indictment, may be easily amended absent prejudice to
    defendants).

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    United States v. Gradwell, 243 U.S. 476, 485 (1917). We,
    _____________ ________

    therefore, scrutinize the Information carefully to determine

    whether it sufficiently and properly alleges criminal conduct

    in violation of 371.

    The defendants contend that they lacked fair warning

    that the conduct alleged in the Information would violate the

    defraud clause of 371. The fair warning doctrine invokes

    due process rights under the Fifth Amendment and requires

    that the criminal statute at issue be sufficiently definite

    to notify persons of reasonable intelligence that their

    planned conduct is criminal. United States v. Harriss, 347
    _____________ _______

    U.S. 612, 617 (1953) ("The constitutional requirement of

    definiteness is violated by a criminal statute that fails to

    give a person of ordinary intelligence fair notice that his

    contemplated conduct is forbidden by the statute."); United
    ______

    States v. National Dairy Corp., 372 U.S. 29, 31 (1963);
    ______ _____________________

    United States v. Anzalone, 766 F.2d 676, 678 (1st Cir. 1985).
    _____________ ________

    We examine the statute, as we must, in the context of the

    facts of this case. United States v. Mazurie, 419 U.S. 544,
    _____________ _______

    550 (1975); United States v. Angiulo, 897 F.2d 1169, 1179
    _____________ _______

    (1st Cir. 1990).

    The defendants assert that 371 did not provide fair

    warning that their alleged actions defrauded the MBE programs

    of federal government agencies because the MBE programs did

    not impose any duties on them. The district court found that



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    the MBE programs did not impose criminal sanctions or

    penalties, or any obligations on subcontractors, such as the

    defendants, and held that because the defendants had not

    violated any duty imposed upon them by the MBE programs, they

    could not have violated 371. The defendants primarily rely

    on United States v. Murphy, 809 F.2d 1427 (9th Cir. 1987);
    _____________ ______

    United States v. Anzalone, 766 F.2d 676 (1st Cir. 1985), and
    ______________ ________

    United States v. Porter, 591 F.2d 1048 (5th Cir. 1979). We
    ______________ ______

    find them inapposite to this case.

    In United States v. Anzalone, 766 F.2d 676 (1st Cir.
    _____________ ________

    1985), we addressed the problem of criminal prosecution of an

    individual for alleged violations of the currency reporting

    requirements before the applicable statutes were amended to

    include such transactions. Anzalone did not involve 371.4
    ________

    The government claimed that the defendant failed to notify

    the bank that his deposits were part of the same event and

    should have been reported as a "structured" transaction. The

    essence of the government's charges was "that the appellant's

    failure to inform the Bank of the 'structured' nature of his

    transfers constituted an illegal scheme to avoid detection of

    these payments by causing the Bank to fail in its duty to

    report them." Id. at 679. We held that the defendant could
    ___



    ____________________

    4 The defendant was not charged under 371 and 371 was not
    discussed in the case. The defendant was charged and
    convicted of violating 18 U.S.C. 2, 1001 and 31 U.S.C.
    5313, 5322.

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    not be held criminally liable under the crimes charged for

    failing to report the transaction when the Reporting Act did

    not impose a duty on him to do so.

    Our analysis in Anzalone is easily
    ________

    distinguishable from this case. In addition to the fact that

    Anzalone does not address 371, the defendant was charged
    ________

    with a crime for failure to act. As we held in Anzalone,
    _______ ________

    omission can only constitute a crime if the accused had a

    duty to act. In this case, however, the defendants are

    charged with defrauding the government by their actions, not

    by failure to act, and therefore, the analysis in Anzalone is
    ________

    inapplicable.

    Similarly, in United States v. Murphy, 809 F.2d
    ______________ ______

    1427 (9th Cir. 1987), the defendants' alleged crimes arose

    from their failure to act. The defendants were charged with

    violating 371 because they failed to disclose the source of

    the funds they deposited which the government alleged

    constituted a conspiracy to impair the function of the

    Internal Revenue Service in the collection of taxes. The

    court found that the defendants had honestly and accurately

    completed the currency transactions reports which were

    required, had no duty to inform anyone of the source of the

    deposited money, and therefore had not committed any illegal

    activity. The court, in dicta, suggested that violations of

    371 require violation of other criminal statutes. Id. at
    ___



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    1432. Moreover, the Ninth Circuit has explained and limited

    its decision in Murphy:
    ______

    Dicta in Murphy can be construed to
    ______
    require that a conspiracy charge under
    section 371 be based upon conduct that
    has "been proscribed by criminal
    statute." Id. Any such construction is
    __
    incorrect in light of Dennis. We read
    ______
    Murphy and Varbel [United States v.
    ______ ______ _______________
    Varbel, 780 F.2d 758 (9th Cir. 1986)]
    ______
    only to mean that a section 371
    conviction may not be based upon a
    failure to volunteer information that is
    not required to be provided to the
    government, or upon the furnishing of
    correct information; such acts do not
    sufficiently impair the functioning of
    the government to support a criminal
    conviction.

    United States v. Tuohey, 867 F.2d 534, 538 (9th Cir. 1989).
    _____________ ______

    In Tuohey, the court held that the government had properly
    ______

    charged the defendants under 371 because the defendants had

    failed to report currency transactions as they were required

    to do by statute.

    In United States v. Porter, 591 F.2d 1048 (5th
    _____________ ______

    Cir. 1979), the government charged a group of doctors and a

    laboratory operator with Medicare fraud and conspiracy to

    defraud the government under 371. On appeal, the court

    reversed the convictions and dismissed the indictments

    finding that the government had not properly charged or

    proved a conspiracy to defraud the government under 371. In

    summary, the government alleged that the doctor defendants

    had sent lab work to the laboratory operator defendant's



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    manual laboratories because they received a payment for doing

    so, rather than to automated laboratories which might have

    processed the work more quickly and more cheaply. Although

    the facts relating to the practice which provided payment

    back to the doctors are complex, the effect was obvious--the

    doctors sent their lab work to the laboratories which

    provided the payments and not to the automated laboratories.

    The charges to Medicare, however, were not increased by the

    practice and were within the guidelines for lab work in the

    area, and the quality of the work was not an issue. Further,

    the defendants did not violate any Medicare rules,

    regulations or other requirements by using manual

    laboratories. The government charged that the practice,

    nevertheless, violated 371 because it defrauded the

    government's "right to have the Medicare program conducted

    honestly and fairly." Id. at 1056. The government's
    ___

    allegations established that the defendants failed to use the

    most cost effective laboratories, the automated laboratories,

    but did not show that the defendants were required to do so,

    and the allegations also showed that the defendants complied

    with the applicable rules and regulations of Medicare. The

    court found that the government did not prove that the

    defendants had interfered with lawful functions of the

    Medicare program as required for criminal liability under

    371.



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    None of the cases relied upon by the defendants

    involve the situation before us: affirmative acts of

    misrepresentation and deceit to thwart the operation and

    purpose of a government program. Conspiracy to thwart the

    operation and purpose of a government program through deceit

    and trickery is prohibited by 371. Hammerschmidt v. United
    _____________ ______

    States, 265 U.S. 182, 188 (1924); United States v. Bucey, 876
    ______ _____________ _____

    F.2d 1297, 1312-13 (7th Cir.), cert. denied, 493 U.S. 1004
    _____ ______

    (1989).

    As noted earlier, 371 proscribes two distinct types

    of conspiracies: (1) conspiracies to commit a specific

    offense against the United States, included elsewhere in the

    criminal code, and (2) conspiracies to defraud the United

    States. The essence of the defendants' theory is that if no

    other federal law or regulation proscribes alleged conduct,

    then the defendants cannot be held criminally responsible

    pursuant to 371 because they owe no duty to the federal

    government.5 The defendants' theory reflects a






    ____________________

    5 This theory is distinguishable from United States v.
    ______________
    Minarik, 875 F.2d 1186 (6th Cir. 1989), where the defendants
    _______
    were charged and convicted under the defraud clause of 371
    although a specific provision of the Tax Code proscribed
    their conduct. In Minarik the court overturned the
    _______
    convictions on the grounds that the case should have been
    brought under the offense clause of 371 to avoid confusion
    to the defendants concerning what conduct was considered
    illegal.

    -18-















    misunderstanding of the function of the two clauses of

    371.6 If the second clause were interpreted to require

    commission of a specific offense, it would have the same

    meaning as the first clause thus rendering the second clause

    redundant. Whenever possible, we will not interpret a

    statute in such a way as to cause redundancy. Breest v.
    ______

    Cunningham, 752 F.2d 8, 10 (1st Cir. 1985).
    __________

    Recently we examined the defraud clause of 371 in

    the context of an appeal from conviction for conspiracy to

    impair the function of the IRS in United States v. Hurley,
    _____________ ______

    957 F.2d 1 (1st Cir. 1992), and held that the defraud clause

    does not depend on allegations of other offenses. In Hurley,
    ______

    the defendants helped a drug smuggler hide and invest $5

    million of his illegal earnings thereby thwarting the lawful

    function of the IRS to levy and collect income taxes. The

    defendants in Hurley argued that the indictment was invalid
    ______

    for failing to charge them under the offense clause of 371

    with specific tax code violations. The defendants also

    argued that because there were no laws prohibiting their

    particular money laundering activities, they had no duty to

    the government under 371 not to engage in money laundering.

    We found that the defendants had engaged in a long-standing


    ____________________

    6 The defendants' theory does not raise the due process
    problems presented in United States v. Haga, 821 F.2d 1036
    _____________ ____
    (5th Cir. 1987), where the defendants were charged under the
    offense clause of 371 but were convicted, apparently, under
    the defraud clause.

    -19-















    and complex conspiracy to deceive the IRS rather than a

    limited scheme proscribed by a single section of the tax

    code. We held that the defraud clause was properly charged

    because it can best address a conspiracy which encompasses a

    broad range of conduct for the unlawful purpose of impairing

    the function of the IRS. See also Dennis v. United States,
    ___ ____ ______ _____________

    384 U.S. at 860 (holding that the true nature of the crime

    was the entire conspiracy to falsely obtain benefits from the

    N.L.R.B., in violation of 371, and not merely the false

    statements made in furtherance of the conspiracy); United
    ______

    States v. Bucey, 876 F.2d at 1312-13 (holding that actions
    ______ _____

    which are themselves legal may constitute a criminal

    conspiracy in violation of 371 if they are part of a

    conspiracy to obstruct by deceit, craft or trickery the

    lawful function of a government agency).

    In the present case, the government alleges that the

    defendants concocted an elaborate scheme with Rusco to use

    Rusco as a front company to procure MBE set aside contracts

    for steel re-bar furnish work which would actually be done

    by the defendants. The scheme, as alleged, began in 1982 and

    continued into 1986. Although Rusco was indicted for the

    specific offense of filing false statements in violation of

    18 U.S.C. 1001, the defendants' conspiracy aimed at a

    broader goal, impeding the purpose and function of the MBE

    programs. The defendants' scheme is the kind of complex



    -20-















    conspiracy which the defraud clause is intended to proscribe,

    and which might not be prosecuted adequately by addressing

    separate occurrences of illegal conduct.7

    The defendants in Hurley fared no better with their
    ______

    second argument. They argued that because their money

    laundering activities were not prohibited by specific

    statutes, they lacked fair warning that they could be

    prosecuted under the defraud clause of 371. We rejected

    their argument and held that if the "defendants knowingly

    participated in laundering drug proceeds, inevitably

    hindering the IRS in its ability to collect . . . taxes,

    their convictions under 371's defraud clause are

    unassailable." Id. at 4; accord United States v. Cambara,
    ___ ______ _____________ _______

    902 F.2d 144, 147 (1st Cir. 1990) ("The conspiracy statute

    does not require that unlawful means be used to achieve the

    unlawful goal of the conspiracy.").




    ____________________

    7 In Dennis, 384 U.S. 855, the defendants argued that they
    ______
    should have been charged, if at all, under the offense clause
    of 371 for the substantive offense of making false
    statements but for the time bar of the statute of
    limitations. The Court held, however, that the charge of
    conspiracy to defraud the government properly stated the
    nature of the defendants' offense and was not "an attempt by
    prosecutorial sleight of hand to overcome a time bar." Id.
    ___
    at 863. In this case, we also reject the defendants' claim
    that the government resorted to 371 to circumvent the
    statute of limitations barring a charge pursuant to 18 U.S.C.
    1001. As in Dennis, while it is true that the defendants
    ______
    may have violated 1001 in perpetration of the conspiracy,
    the gravamen of the charge is the scheme to defraud the MBE
    program and not merely the making of false statements.

    -21-















    Taken as a whole, the Information charges that the

    MBE re-bar "furnish" contracts obtained in Rusco's name were

    merely passing through Rusco, as a front, to Barker. The

    defendants used Rusco to win MBE contracts to "furnish" re-

    bar because the defendants could not have obtained those

    contracts directly. The result was that a non-MBE got the

    benefit of contracts which the MBE program intended for

    minority businesses. Both the defendants and the district

    court below rely on the fact that Rusco was a certified MBE

    during the existence of the conspiracy, implying that

    contracts which went to Rusco were proper under the affected

    MBE programs.

    A scheme to use a minority business as a front

    company was addressed in United States v. Anderson, 879 F.2d
    ______________ ________

    369 (8th Cir. 1989). The court found that the minority

    business certification requirements of the Small Business

    Administration were intended to insure that front companies

    did not usurp program benefits:

    To become certified for the [SBA
    minority business] program, a business
    must establish that it is socially or
    economically disadvantaged, is owned by a
    minority person and not a mere front for
    a non-[minority certified] business, is
    actually controlled by a minority person,
    and will be performing at least 15
    percent of the government contract.

    Id. at 372. The Anderson defendants used a certified
    ___ ________

    minority business as a front to obtain SBA set aside



    -22-















    contracts when the contract work was actually subcontracted

    to other, non-minority, businesses. Compare United States v.
    _______ _____________

    Porter, 591 F.2d 1948 (5th Cir. 1979) (affirming dismissal of
    ______

    an indictment which charged doctors and a laboratory worker

    with a kickback scheme to defraud Medicare in violation of

    371 because there was no Medicare policy or regulation which

    prohibited doctors from taking such payments and Medicare

    costs were not increased).

    It is reasonable to infer that the MBE certification

    requirements for the agencies alleged in this case are

    intended to prevent non-MBEs from taking advantage of MBE set

    aside contracts.8 The MBE certification requirements impose

    duties upon the defendants and others not to subvert the

    system established to benefit minority businesses. Because

    Rusco did not do the re-bar "furnish" work specified in the

    contracts, Rusco was operating as a front for Barker which


    ____________________

    8 The Information summarized, rather than citing, the
    regulations which control the MBE programs of the DOT, EPA
    and GSA which provides sufficient understanding of the
    function of the programs. Nevertheless, the pertinent
    language of the regulation for MBE certification for the DOT
    is instructive:

    To ensure that this part benefits only
    MBEs which are owned and controlled in
    both form and substance by one or more
    minorities or women, DOT recipients shall
    use Schedules A and B . . . to certify
    firms who wish to participate as MBEs in
    DOT under this part.
    49 C.F.R. 23.51.



    -23-















    did the "furnish" work and received the contract payments.

    As the government alleges, MBE contracts can only be awarded

    to MBEs who actually do the work, and therefore, the

    defendants' use of Rusco was a fraud on the MBE programs.

    Just because the defendants used Rusco, a certified MBE, to

    subvert the MBE requirements does not make their actions less

    reprehensible.

    The Information also alleges that Rusco fraudulently

    maintained its MBE certification after 1982. The defendants

    counter that the Information cannot properly charge them with

    defrauding the government based upon false documentation

    submitted by Rusco to various MBE certifying agencies because

    there is no allegation that the agencies relied upon the

    false documentation to certify Rusco. In Dennis, 384 U.S.
    ______

    855, the Supreme Court found that an indictment which charged

    members of a mine workers' union who submitted false

    affidavits, stating that they were not Communists, in order

    to procure the services of the National Labor Relations

    Board, properly stated a conspiracy to defraud the

    government pursuant to 371. The defendants objected that

    the affidavits did not defraud the Board because it did not

    rely on the veracity of the non-Communist affidavits, but

    instead relied only on the fact that they were filed. In

    response, the Court held as follows:

    The facts are, according to the
    indictment, that petitioners and their


    -24-















    co-conspirators could not have obtained
    the Board's services and facilities
    without filing non-Communist affidavits;
    that the affidavits were submitted as
    part of a scheme to induce the Board to
    act; that the Board acted in reliance
    upon the fact that affidavits were filed;
    and that these affidavits were false.
    Within the meaning of 371, this was a
    conspiracy to defraud the United States
    or an agency thereof.

    Dennis at 862. The effect of the conspiracy and the false
    ______

    affidavits was that the defendants' trade union gained the

    benefit of the Board's services and facilities despite the

    fact that the union was not qualified because some of its

    officers were Communists. The Court held that the conspiracy

    defrauded the government by impeding the function of the

    Board to implement its policy to exclude unions with

    Communist officers. Similarly, in this case, Rusco could

    not have maintained its certification as an MBE without

    filing the required documentation. Because the defendants

    had taken control of Rusco, the documentation filed by Rusco

    contained false and misleading information and material

    omissions which directly affected Rusco's eligibility as an

    MBE. Unless Rusco maintained its MBE certification, the

    defendants' scheme to obtain MBE set aside contracts would

    have failed. The state and local MBE certification agencies

    granted MBE certification to Rusco in response to Rusco's

    fraudulent documentation. Therefore, Rusco's filings for MBE

    certification were at the core of the defendants' conspiracy



    -25-















    and may be considered as a part of the fraudulent activity in

    furtherance of the conspiracy. Even if Rusco had been a

    properly certified MBE, however, "[a] method that makes use

    of innocent individuals or businesses to reach and defraud

    the United States is not for that reason beyond the scope of

    371." Tanner v. United States, 483 U.S. 107, 129 (1986).
    ______ _____________



    This court has considered the meaning of the defraud

    clause in 371 and its substantially similar predecessors,

    and found actions which defrauded the United States in a

    variety of circumstances. Curley v. United States, 130 F. 1,
    ______ _____________

    11-12 (1st Cir. 1904), cert. denied, 195 U.S. 628 (affirming
    _____ ______

    the sufficiency of an indictment charging conspiracy to

    defraud the government by a defendant who took a civil

    service exam for another man to help him gain a position as a

    letter carrier and defining defrauding the government as:

    "'any act committed with a view of evading the legislation of

    Congress passed in the execution of any of its powers, or of

    fraudulently securing the benefit of such legislation, may

    properly be made an offense against the United States.'");

    Harney v. United States, 306 F.2d 523 (1st Cir. 1962), cert.
    ______ _____________ _____

    denied sub nom. O'Connell v. United States, 371 U.S. 911
    ______ ___ ____ _________ _____________

    (affirming indictment for hampering the lawful operation of

    the Bureau of Public Roads of the Department of Commerce in

    the administration of the Federal Aid Highway program);



    -26-















    United States v. Pappas, 611 F.2d 399 (1st Cir. 1979)
    ______________ ______

    (affirming conviction of conspiracy to defraud government

    based on a scheme to misuse funds intended for the CETA

    program).

    Finally, dishonest conduct is at the heart of the

    crime of defrauding the government. The Supreme Court

    defined "defraud" in a substantially similar predecessor

    statute to 371 as follows:

    To conspire to defraud the United
    States means primarily to cheat the
    government out of property or money, but
    it also means to interfere with or
    obstruct one of its lawful governmental
    functions by deceit, craft or trickery,
    or at least by means that are dishonest.
    It is not necessary that the government
    shall be subjected to property or
    pecuniary loss by the fraud, but only
    that its legitimate official action and
    purpose shall be defeated by
    misrepresentation, chicane, or the
    overreaching of those charged with
    carrying out the governmental intention.

    Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).
    _____________ ______________

    The defendants in Hammerschmidt were indicted for
    _____________

    distributing leaflets and other materials urging resistance

    to the draft during World War I. The Court held that

    although the defendants' conduct was aimed at impairing the

    function of the Selective Service, a lawful government

    function, it was open defiance and not a scheme involving

    deceit or trickery, and therefore, could not be charged

    within the meaning of defrauding the government.



    -27-















    The allegations in this case do not present a

    situation where defendants conspired to do something which,

    in itself, was innocent, but which had the unintended effect

    of thwarting the MBE programs. Nor were the defendants

    engaging in open defiance or protest against the MBE

    programs. The defendants' actions, as alleged, involved

    deceit and trickery to benefit the defendants by hampering a

    lawful government function. A conspiracy of this kind has

    long been recognized to defraud the government.

    The Information alleges that "[p]ursuant to this

    unlawful conspiracy in excess of $5 million in federal and

    federally assisted construction contracts were improperly

    credited towards the MBE goals of the various departments and

    agencies of the United States."9 Information at 14.

    While this allegation could be more forcefully stated, taking

    the Information as a whole and with all necessary

    implications, the meaning is clear: the defendants conspired

    with others to defraud the DOT, EPA and GSA, agencies of the

    United States, in the implementation of their MBE programs by

    using Rusco to win MBE set aside contracts which the

    defendants would not otherwise have been eligible to receive.




    ____________________

    9 The defendants do not challenge the validity of the MBE
    program. It is uncontroverted, in this case, that the MBE
    program is a lawful function of government. And see
    ___ ___
    Fullilove v. Klutznick, 448 U.S. 448 (1980) (upholding
    _________ _________
    constitutionality of an MBE program).

    -28-















    As a result, the scheme diverted $5 million in contracts from

    MBEs to Barker.

    In thirteen pages containing forty-eight paragraphs,

    the Information details actions by which the defendants,

    Rusco and others accomplished their objective to obtain MBE

    contracts for the benefit of the defendants. The allegations

    show that the defendants were well aware of the purpose of

    the MBE programs, certification requirements, goals and set

    aside contracts, and that any reasonably intelligent person

    in the defendants' situation should have known that their

    conspiracy could have criminal consequences. Taken as a

    whole, the Information sufficiently alleges fraudulent

    conduct by the defendants and their co-conspirators to

    impair, defeat, or obstruct the function of the MBE programs

    involved in this case. We move on to consider whether the

    fraud was perpetrated against the United States.


    D. Sufficiency of Allegations of Contact with United States
    D. Sufficiency of Allegations of Contact with United States
    ________________________________________________________

    The defendants assert, and the district court held,

    that the Information fails to allege that the defendants

    conspired to defraud the United States or an agency of the

    United States. In Tanner v. United States, 483 U.S. 107
    ______ ______________

    (1987), the Supreme Court considered whether a kickback

    conspiracy to procure and keep a construction contract on a

    project which was funded by federally guaranteed loans

    constituted defrauding the United States within the meaning


    -29-















    of 371. In Tanner, 483 U.S. 107, the Rural Electrification
    ______

    Administration (REA) guaranteed loans for the construction of

    a power plant for an electric cooperative (Seminole) in

    Florida. The procurement manager for Seminole conspired with

    his friend to get contracts for the project with kickback

    payments to the manager.

    The defendants argued on appeal that the evidence at

    trial showed that the target of the conspiracy was Seminole

    and not the federal government. The government responded

    that, because Seminole's construction project received

    federal financial assistance and some federal supervision, a

    conspiracy to defraud Seminole was the same as a conspiracy

    to defraud the government. The Court rejected the

    government's explanation and held:

    The conspiracies criminalized by 371
    are defined not only by the nature of the
    injury intended by the conspiracy, and
    the method used to effectuate the
    conspiracy, but also and most
    importantly by the target of the
    ______
    conspiracy.

    Tanner at 130. The Court also held, however, that
    ______

    conspiracies to defraud the federal government may be

    accomplished through intermediaries, innocent third parties,

    and the Court remanded the case to determine whether the

    defendants conspired to cause Seminole to make

    misrepresentations to the REA. Tanner at 132.
    ______





    -30-















    In this case, the government alleged that the MBE

    programs of the involved federal agencies were the target of

    the defendants' conspiracy to defraud. Information at 12.

    The Information supports the general allegation in statutory

    language with detail of the workings of the MBE programs and

    the actions by the defendants which harmed the MBE programs.

    The Information alleges that the defendants' scheme caused

    "in excess of $5 million in federal and federally assisted

    construction contracts [to be] improperly credited towards

    the MBE goals of the various departments and agencies of the

    United States." Because the purpose of the MBE programs, as

    alleged, is to insure that at least ten percent of federal

    and federally assisted construction project contracts be

    awarded to MBE companies, the defendants' scheme to divert

    MBE contracts through Rusco to benefit themselves obstructed

    the proper function of the MBE programs. The Information

    taken as a whole clearly alleges that the target of the

    defendants' conspiracy was $5 million worth of MBE set aside

    contracts which should have been awarded to minority

    businesses.

    The Information does not allege that either the

    general contractors or the state agencies implementing MBE

    certification were operating as federal agencies based on

    their receipt of federal and federally assisted funds. The

    misrepresentations and fraud to general contractors and MBE



    -31-















    certifying agencies by the defendants and co-conspirators

    were the means to the end, using innocent third parties to

    effect their scheme. The Information sufficiently alleges a

    conspiracy which targeted a federal function, the MBE

    programs of the DOT, EPA and GSA, and therefore, properly

    charges a conspiracy to defraud the United States.



    E. Sufficiency of Allegations of Harm to the United States
    E. Sufficiency of Allegations of Harm to the United States
    _______________________________________________________

    The defendants argue that the Information fails to

    allege a crime under 371 because it does not allege that

    the defendants defrauded the federal government of money or

    property. There is no basis for the defendants' argument.

    The language of the statute itself is broad: "If two or more

    persons conspire . . . to defraud the United States, or any

    agency thereof in any manner or for any purpose. . ." 18
    _______________________________

    U.S.C. 371 (emphasis added). At least since Haas v.
    ____

    Henkel, 216 U.S. 462 (1910), the Supreme Court has recognized
    ______

    that 371 (and its substantially similar predecessors) were

    not limited to conspiracies which defraud the government of

    money or property: "The statute is broad enough in its terms

    to include any conspiracy for the purpose of impairing,

    obstructing or defeating the lawful function of any

    department of Government." Id. at 479.
    ___

    Although the Supreme Court has limited the scope of

    mail fraud, 18 U.S.C. 1341, to the protection of property



    -32-















    rights, that limitation is restricted to the mail fraud

    statute. McNally v. United States, 483 U.S. 350, 360 (1987);
    _______ _____________

    and id. at 368 (Stevens, J., dissenting); United States v.
    ___ ___ ______________

    Smith, 891 F.2d 703, 713 (9th Cir. 1989), modified on other
    _____ ________ __ _____

    grounds, 906 F.2d 385, cert. denied 111 S.Ct 47 (1990)
    _______ _____ ______

    (McNally's narrow definition of "defraud" does not extend to
    _________

    371.). We decline to extend the McNally limitation to
    _______

    371.



    IV.
    IV.

    Conclusion
    Conclusion
    __________

    We hold that the Information sufficiently alleges a

    conspiracy to defraud the government pursuant to 371 in

    the language of the statute and with sufficient supporting

    detail to adequately notify the defendants of the charges

    against them. The history of interpretation of 371

    demonstrates that the statute proscribes conspiracies, such

    as the defendants' conspiracy, which target federal programs

    and which intend to deceitfully secure the benefit of those

    programs. In other words, the defendants had a duty imposed

    pursuant to 371 not to divert the benefit of the MBE

    programs from their intended recipients, qualified and

    certified minority businesses, to themselves. The statute

    itself provides fair warning that the defendants' alleged

    conspiracy may be charged as criminal under 371.



    -33-















    Therefore, we reverse the decision of the lower court and

    remand for trial.

















































    -34-







Document Info

Docket Number: 92-1536

Filed Date: 2/19/1993

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (35)

Haas v. Henkel , 30 S. Ct. 249 ( 1910 )

United States v. Gradwell , 37 S. Ct. 407 ( 1917 )

McNally v. United States , 107 S. Ct. 2875 ( 1987 )

United States v. Theodore v. Anzalone , 766 F.2d 676 ( 1985 )

United States v. Johnny Rafael Batista-Polanco , 927 F.2d 14 ( 1991 )

United States v. Joaquin Cambara, United States of America ... , 902 F.2d 144 ( 1990 )

united-states-v-colin-brooks-anderson-aka-colin-taylor-united-states , 879 F.2d 369 ( 1989 )

United States v. Raymond P. Allard , 864 F.2d 248 ( 1989 )

United States v. Nunziato Fusaro, United States v. Richard ... , 708 F.2d 17 ( 1983 )

United States v. John Thomas Tuohey , 867 F.2d 534 ( 1989 )

United States v. National Dairy Products Corp. , 83 S. Ct. 594 ( 1963 )

Hammerschmidt v. United States , 44 S. Ct. 511 ( 1924 )

Robert Breest v. Michael Cunningham, Warden, New Hampshire ... , 752 F.2d 8 ( 1985 )

United States v. Robert S. Baines , 812 F.2d 41 ( 1987 )

Francis L. Harney, Jr. v. United States of America, Charles ... , 306 F.2d 523 ( 1962 )

United States v. Lee William Sachs , 801 F.2d 839 ( 1986 )

United States v. James R. Haga, Jr. , 821 F.2d 1036 ( 1987 )

United States v. Wesley Bucey , 876 F.2d 1297 ( 1989 )

United States v. Peter Pappas , 611 F.2d 399 ( 1979 )

United States v. Raul Enrique Penagaricano-Soler , 911 F.2d 833 ( 1990 )

View All Authorities »