United States v. Sharp ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
April 28, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-1114
CHARLES HOMER “CHIP” SHARP,
Defendant-Appellant.
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 13-1117
MICHAEL ARTHUR GRIGGS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:08-CR-00365-MSK)
Robert T. Fishman, Of Counsel, Ridley, McGreevy & Winocur, PC, Denver,
Colorado, for Defendant-Appellant, Charles Sharp.
Norman R. Mueller, (Rachel A. Bellis, with him on the briefs), of Haddon,
Morgan and Foreman, P.C., Denver, Colorado, for Defendant-Appellant, Michael
Griggs.
Pegeen D. Rhyne, Assistant United States Attorney, (John F. Walsh, United States
Attorney, with her on the consolidated brief), Denver, Colorado, for Plaintiff-
Appellee.
Before BRISCOE, Chief Judge, HOLLOWAY* and PHILLIPS, Circuit Judges.
BRISCOE, Chief Judge.
Codefendants Michael Griggs and Charles Sharp appeal from their
convictions for mail fraud and conspiracy to commit mail fraud. Griggs also
challenges a $500,000 fine that was imposed by the district court as part of his
sentence. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.
______________________
*The late Honorable William J. Holloway, Jr., United States Senior Circuit
Judge, fully participated in these appeals and drafted the combined concurrence
and dissent included with this decision. The decision was circulated to the full
court prior to his death. Judge Holloway passed away, however, before the
opinion and his separate writing could be filed and published. “The practice of
this Court permits the remaining two panel judges if in agreement to act as a
quorum in resolving the appeal.” United States v. Wiles, 106 F.3d 1516, 1516 n.*
(10th Cir.1997); see also 28 U.S.C. § 46(d) (noting circuit court may adopt
procedures permitting disposition of an appeal where remaining quorum of panel
agrees on the disposition). The remaining panel members have acted as a quorum
with respect to this opinion and no judge of this Court has objected to publication.
2
I
A. Factual background
1. The defendants and their operation of DRI
In 1986, defendant Griggs formed Disaster Restoration, Inc. (DRI), a
Denver, Colorado-based corporation, and subsequently served as its owner and
chief executive officer. DRI repaired and restored commercial and residential
properties throughout Colorado that were damaged by fire, flood, or other
disasters. DRI had four divisions, each of which engaged in a separate part of the
restoration process: (1) the emergency services division, which responded
immediately to disasters; (2) the contents division, which both moved and
restored personal property; (3) the structural repair division, which performed
needed structural repairs on the damaged commercial and residential buildings;
and (4) the environmental division, which addressed environmental concerns
arising out of a disaster. Approximately 85% of DRI’s restoration work was
performed by its own employees; the remaining 15% was performed by
subcontractors hired by DRI.
In carrying out its business, DRI contracted directly with the owner
of the damaged property. DRI would often, in turn, work directly with and be
paid by the property owner’s insurance company. In doing so, DRI would submit
to the insurance company an estimate outlining the scope and proposed cost of the
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repair and restoration work that was to be performed. In preparing these
estimates, DRI used Xactimate, a software program commonly utilized by
insurance adjusters to calculate repair and construction costs. DRI’s estimates
also sometimes included manually-input line items relating to work to be
performed by its subcontractors. Those line items referenced the name of the
subcontractor and typically included the words “per invoice” or “per proposal.”
In 2003, Griggs hired defendant Sharp to work as the chief executive
officer and operating manager of DRI. Both Griggs and Sharp established
company policies, and also trained and supervised DRI project managers and
estimators.
Beginning in approximately 2004, Griggs and Sharp began
instructing DRI employees who prepared DRI’s estimates to add 20-30% to the
price that DRI’s subcontractors were charging DRI. As a result, the estimate sent
by DRI to an insurance company would, in the case of a line item relating to
subcontractor work, list an amount 20-30% higher than the subcontractor’s bid for
the work (and that DRI knew it would be paying the subcontractor for its work).
Griggs and Sharp also instructed DRI employees to require DRI’s subcontractors
to provide DRI with two invoices: one that listed the actual amount the
subcontractor would charge and receive from DRI, and a second invoice that
listed a total amount 20-30% higher than the first invoice. The invoices reflecting
the actual charges to DRI went to DRI’s accounts payable department for payment
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and were not shared with the insurance companies. The inflated invoices were
kept in DRI’s job files to be provided to insurance adjusters upon request. Thus,
the sole purpose for the inflated invoice was to provide DRI with a document that
would support the amount listed on the subcontractor line item of DRI’s estimate.
On most DRI estimates, DRI employees also added 10% for overhead
and 10% for profit, a total of 20% markup that was known and generally agreed to
by insurers and was standard in the industry.
2. The individual jobs at issue
The counts of conviction at issue in these appeals stem from the
following restoration jobs performed by DRI between 2005 and 2006.
a. The Belterra job (basis for Count 4)
In 2005, DRI performed restoration work on a property in Longmont,
Colorado, owned by Belterra Inc. and insured by Travelers Insurance (Travelers).
DRI employee Mark Troudt provided Travelers with a revised estimate that
included two subcontractor line items: one in the amount of $62,430.01 for
“ELECTRICAL” and another in the amount of $1,976.10 for “PLUMBING.”
Supp. ROA at 32. The line item for the electrical work stated “[t]he line item
above represents the electrical repairs per detailed invoices from Master
Electrician (A/C Electric).” Id. The line item for the plumbing work stated that
the amount listed was “per the detailed break down [sic] from D&H Plumbing and
Heating.” Id. In fact, however, DRI paid only $45,486.96 to its subcontractor for
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the electrical work and $1,580.88 to its subcontractor for the plumbing work.
b. The Benaglio job (basis for Counts 7 and 8)
In 2005, DRI performed restoration work on a property in
Broomfield, Colorado, owned by John Benaglio and insured by The Hartford
Insurance Company (The Hartford). Troudt sent The Hartford a DRI estimate that
included seven line items for vinyl windows that included the following language:
“The line item above represents the actual cost of the window for installation and
material per the invoice from Professional Window Service.” Id. at 79, 83, 88,
91, 93, 94, 96. These seven line items in DRI’s estimate totaled $4,084.72. But
DRI paid its subcontractor, Professional Window Service, only $3,568.44 for the
work.
On this same DRI estimate, Troudt also listed three subcontractor
line items for “ELECTRICAL” work. Id. at 108-09. Each of these line items
stated that the amounts were “[p]er invoice from Ruby Electric.” Id. However,
DRI actually paid Ruby Electric 20% less for each line item than was listed on its
estimate to The Hartford.
c. The Cahall job (basis for Count 15)
In 2005, DRI performed restoration work on a property in
Broomfield, Colorado, owned by Rosemary Cahall and insured by the Kemper
Insurance Company (Kemper). DRI employee Justin Blackburn submitted to
Kemper a DRI estimate that included two subcontractor line items, one in the
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amount of $8,009 and the other in the amount of $5,550, for work performed by
subcontractor D&H. Id. at 184-85. Each of these line items included the wording
“per estimate from D&H Heating and Air.” Id. DRI, however, paid D&H only
$6,407 for this work.
On the same DRI estimate, Blackburn also listed a subcontractor line
item for “Electrical repairs - per estimate from H&H Electrical” in the amount of
$4,180. Id. at 184. The actual work, however, was performed by Ruby Electric
and DRI paid Ruby Electric only $2,686.40 for the work.
d. The Clear Creek job (basis for Counts 16 and 17)
In 2005, DRI performed restoration work on a property in Empire,
Colorado, owned by Clear Creek Investments and insured by State Farm
Insurance Company (State Farm). Troudt sent State Farm a DRI estimate that
listed a single subcontractor line item in the amount of $6,231.90 for “HEAT,
VENT & PLUMBING” work performed by D&H. Id. at 226. Written below the
line item was the phrase “per the the [sic] invoice and breakdown from D&H
Heating in the amount of 5193.25 x contractor overhead and profit of 20% = the
cost of $6231.90.” Id. Troudt also sent a cover letter that stated, in pertinent
part, “The break down [sic] is per invoice received from D&H Heating for labor
and material completed to date.” Id. at 225. In fact, however, D&H had agreed
to perform the work for $3,879.60 and invoiced DRI for that amount.
e. The Evans job (basis for Counts 22 and 23)
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In 2005, DRI performed restoration work on a property in Boulder,
Colorado, owned by Kent and Marilyn Evans and insured by State Farm. DRI
employee Jason Cain sent State Farm a DRI estimate that included a
subcontractor line item in the amount of $267.52 for “Electronics Cleaning per
RescueTech.” Id. at 336. Included with the line item was the following
statement: “Electronics cleaning includes 20% O&P.” Id. Rescue Tech provided
DRI with an estimate in the amount of $223.03, but ultimately agreed to accept
$178.42 from DRI for the work.
Cain also sent State Farm a DRI supplemental estimate that included
subcontractor line items in the amount of $3,550 for “PAINTING . . . Per
CertaPro Painting,” id. at 347, and in the amount of $5,899.85 for “CONCRETE -
garage slab,” id. at 348. Along with the supplemental estimate, Cain sent State
Farm the false proposals from these subcontractors that matched the dollar figures
listed on the supplemental estimate. In fact, however, CertaPro charged DRI
$1,760, and TBD (the subcontractor that performed the concrete work) charged
DRI $4,719.88. 1
1
Cain’s supplemental estimate also included a subcontractor line item for
“Electrical Rewire - per proposal from Ruby Electric” in the amount of $1,678.63.
Supp. ROA at 348. According to the government, Ruby Electric actually charged
DRI less than this amount. Unfortunately, however, the exhibits included in the
record on appeal do not fully substantiate the government’s assertion on this
point, and thus we do not rely on it for purposes of our analysis.
Relatedly, we note that the exhibits included in the record suggest, but do
(continued...)
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f. The Jones job (basis for Count 30)
In 2006, DRI performed restoration work on a property in Boulder,
Colorado, owned by David Jones and insured by American Family Insurance
(American Family). Blackburn sent American Family a DRI estimate that
contained two subcontractor line items: one in the amount of $4,995.98 for
“Plumbing repairs - per invoice from Broomhall Brothers Plumbing,” and another
in the amount of $4,456 for “Electrical repairs - per invoice from Ruby
Electrical.” Id. at 710. In fact, however, DRI paid both of these subcontractors
20% less than the amounts listed on DRI’s estimate.
g. The Justen job (basis for Count 31)
In 2005, DRI performed restoration work on a property in Lakewood,
Colorado, owned by Kathleen Justen and insured by Amica Insurance (Amica).
Blackburn sent Amica a DRI estimate with a subcontractor line item in the
amount of $5,700 for “Asbestos abatement - per estimate from Rocky Mountain
Abatement.” Id. at 739. Together with the DRI estimate, Blackburn sent Amica a
proposal from Rocky Mountain that listed a contract price of $5,750. However,
DRI actually paid Rocky Mountain $4,025 for the work.
h. The List job (basis for Count 36)
1
(...continued)
not fully establish, that DRI’s estimate and supplemental estimate included a total
of $3,375 in subcontractor line items from Ruby Electric, and that DRI actually
paid Ruby Electric a total of $2,700 for its work. Id. at 354, 356.
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In 2005, DRI performed restoration work on a property in Niwot,
Colorado, owned by Don List and insured by Allstate Insurance Company
(Allstate). Blackburn sent Allstate a DRI estimate that included a subcontractor
line item in the amount of $8,551.22 for “Electronics cleaning - per invoice from
ICC Technical Loss Consultants of $7,126.02 plus ten and ten.” Id. at 779. ICC
provided DRI with an inflated invoice that matched the $7,126.02 figure. But
DRI actually paid ICC $5,700.60 for the work.
i. The Lusman job (basis for Count 37)
In 2006, DRI performed restoration work on a property in Morrison,
Colorado, owned by Charles Lusman and insured by Sentry Insurance (Sentry).
Blackburn sent to James Lynch, an independent adjuster who was working for
Sentry, a falsely inflated Rocky Mountain Abatement proposal for $4,038 plus a
$450 inspection fee. Id. at 803-05. Lynch relied on the false Rocky Mountain
Abatement proposal and incorporated it as a line item in the claim estimate that
he created for Sentry on the Lusman job. Unbeknownst to Lynch and Sentry,
Rocky Mountain Abatement had agreed to perform the work for $3,250 plus a
$450 inspection fee.
j. The Taddonio job (basis for Count 53)
In 2005, DRI performed restoration work on a property in Lakewood,
Colorado, owned by Louise Taddonio and insured by Ohio Casualty. Id. at 1047.
Blackburn sent Ohio Casualty a DRI estimate that included a subcontractor line
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item in the amount of $4,293.44 for “Motorized shades - per proposal from
Ananda and Suns.” Id. at 1048. Ananda and Suns provided DRI with two
invoices: one in the amount of $4,293.44, and another in the amount of $3,484.32.
Id. at 1055-56. DRI provided Ohio Casualty with a copy of the higher invoice,
but actually paid Ananda and Suns the lower of these two amounts.
B. Procedural background
On September 8, 2008, a federal grand jury returned a sixty-count
indictment against Griggs, Sharp, and eight other DRI employees. Count 1
charged Griggs, Sharp, and the other defendants with conspiracy to commit mail
fraud, in violation of 18 U.S.C. § 371. Counts 2 through 57 charged Griggs,
Sharp and various other defendants with individual counts of mail fraud, in
violation of 18 U.S.C. §§ 1341 and 2. Counts 58 and 59 charged Sharp with
extortion, in violation of 18 U.S.C. § 1951. Count 60 was a forfeiture charge
against all of the defendants.
Four of the named defendants — Jason Cain, Brett Harding, Peter
Jennings and Garland Scott Risdon — pleaded guilty. The government dismissed
all charges against defendants Matthew Kaskel and Mark Troudt, as well as
certain of the charges against Griggs, Sharp (in particular the extortion counts)
and the remaining two defendants, Justin Blackburn and Daniel Travers.
The joint trial of Griggs, Sharp, Blackburn and Travers began in
early July 2012. Following approximately five weeks of evidence and
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approximately one week of deliberations, the jury returned a partial verdict,
convicting Sharp and Griggs of several counts. Specifically, the jury convicted
Sharp on Counts 1 (conspiracy), 4, 15, 22, 23, 30, 31, 36, 37, and 53, and
convicted Griggs on Counts 1, 4, 7, 8, 15, 16, 17, 22, 23, 30, 31, 36, 37, and 53.
As for Blackburn and Travers, the jury either acquitted them or was unable to
reach a verdict on certain of the counts. Consequently, neither Blackburn nor
Travers were found guilty on any count. Following the trial, the district court,
acting pursuant to the government’s motion, dismissed all of the counts on which
the jury was unable to reach verdicts.
The district court sentenced Griggs to a term of imprisonment of fifty
months, to be followed by a three-year-term of supervised release. The district
court also ordered Griggs to pay restitution in the amount of $477,643.49, plus a
fine of $500,000.
The district court sentenced Sharp to a term of imprisonment of
thirty-six months, to be followed by a three-year-term of supervised release. The
district court also ordered Sharp to pay restitution in the amount of $477,643.49.
II
A. Sharp’s Appeal
Sharp raises five issues in his appeal: two sufficiency-of-the-
evidence issues, two instruction-related issues, and, lastly, a challenge to his
convictions based upon this court’s decision in United States v. Cochran, 109
12
F.3d 660 (10th Cir. 1997). We conclude, for the reasons we shall discuss in
greater detail below, that all of these issues lack merit.
1. Was the evidence presented at trial sufficient to
establish that Sharp obtained money by false pretenses
or representations?
Sharp argues in his first issue on appeal that his convictions for mail
fraud and conspiracy to commit mail fraud must be reversed because the evidence
presented by the government at trial was insufficient to establish that he obtained
money by false pretenses or representations. “We review the sufficiency of
evidence de novo.” United States v. Serrato, 742 F.3d 461, 472 (10th Cir. 2014).
“The question for the court is ‘whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)).
The district court in this case instructed the jury that to find the
defendants guilty of mail fraud, the government had to establish beyond a
reasonable doubt each of the following elements:
1. That the named defendant devised or participated
in a scheme to defraud or to obtain money or property
by means of false pretenses or representations as that
scheme is described in the Indictment.
2. That the named defendant acted with the specific
intent to defraud or to obtain money or property by false
pretenses or representations.
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3. That the scheme involved a person making false
pretenses or representations that were material, and
4. That the named defendant knew or could have
reasonably foreseen that a person would use the mails or
an interstate private or commercial carrier to transmit
documents relating to the scheme as set forth in the
Indictment.
ROA at 3064 (Instruction No. 25); see United States v. Schuler, 458 F.3d
1148, 1152 (10th Cir. 2006) (outlining essential elements of mail fraud claim
under 18 U.S.C. § 1341). The district court further instructed the jury as to the
meaning of a false pretense or representation:
A representation or pretense is false if it is known to
be untrue or it is made with reckless indifference to its
truth or falsity. A representation or pretense can also be
false if it is a half-truth or omits or conceals a material
fact if it is made with the intent to defraud.
ROA at 3066 (Instruction No. 28).
As Sharp notes, “[t]he most common type of statement relied upon
by the government was a subcontractor line item consisting of a dollar figure and
some additional statement like, ‘per estimate from . . .’ or ‘per invoice from . . .’
the subcontractor.” Sharp Br. at 14. Sharp argues that, “[a]s a matter of law,
none of these statements [we]re false.” Id. at 15. To begin with, he argues, “[a]
number standing alone cannot constitute a false statement: it makes no sense to
say that ‘$4,000’ is something that is ‘true’ or ‘false.’” Id. “Nor,” he argues,
“can any of these statements be considered false simply because the dollar amount
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was accompanied by an explanation that the figure was ‘per invoice,’ ‘per
estimate,’ or some similar phrase.” Id. “[I]n order for the jury to have properly
concluded that a line item was false,” Sharp argues, “it was required to conclude
beyond a reasonable doubt that DRI represented that line item to be, not only the
price that DRI proposed to charge the insurance companies for the subcontractor’s
work, but also that the line item stated the amount of money that DRI was going
to pay its subcontractor to perform that work.” Id. But, he asserts, “[n]othing in
either the DRI estimate or the subcontractor’s underlying invoice stated or
implied that the price being charged by DRI was the same as the amount that DRI
would pay the subcontractor for its work.” Id. at 16. That is because, Sharp
argues, “the purpose of a DRI estimate was to define the scope of work to be
performed and to provide a basis for negotiating a fair and reasonable price for
that work, . . . not to disclose DRI’s arrangements with subcontractors, what it
pays laborers, or the costs of material that DRI uses.” Id.Sharp argues that “[t]he same holds true with respect to the
statements at issue in Counts 22 and 36 (relating to the Evans and List jobs),
where DRI’s estimates included line item prices for subcontractor work
accompanied by statements that the number was ‘per invoice’ or ‘per estimate’
provided by the subcontractor and included ‘ten and ten’ or 20% O&P.’” Id.(quoting Exhibits 336 and 779). “With respect to both of these Counts,” Sharp
asserts, “DRI provided the insurance companies with a proposed price for
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subcontractor work without representing that that price was identical to what DRI
would in turn pay the subcontractor.” Id. More specifically, Sharp asserts that
“[t]he disclosure that the contractor’s price was increased by ‘10+10’ or by 20%
does not constitute a representation that the line item price itself includes no
markup, and that the only markup is the ‘10+10’ or 20% referenced in the
estimate.” Id. at 16-17.
The government argues in response that “[a] rational jury could . . .
have found that the subcontractor line items within the DRI estimates were
themselves affirmative false representations.” Gov’t Br. at 23. In support, the
government asserts that “[f]or each count of conviction, the relevant DRI estimate
had language in the subcontractor line items that, in addition to the context of the
estimate itself, caused the line item to be a false representation regarding what the
subcontractor was charging DRI.” Id. Specifically, “[l]ine items on each of these
DRI estimates included one of the following references to the subcontractor
documents: ‘per detailed breakdown,’ ‘per invoice,’ ‘actual cost . . . per invoice,’
‘per estimate,’ ‘per Rescue Tech Electronics,’ ‘per CertaPro Painting,’ and ‘per
proposal.’” Id. (quoting various trial exhibits). “Additionally,” the government
argues, “the insurance adjusters testified that they understood the listed prices on
the subcontractor line items to be what the subcontractors were charging DRI.”
Id. “The evidence,” the government asserts, “supports the inference that [Sharp
and Griggs] knew this and that this was precisely the reason they required DRI
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employees to obtain the falsely inflated invoices/proposals from subcontractors.”
Id. “Unless [Sharp and Griggs] intended to deceive the insurance companies
regarding what the subcontractors were charging DRI, there would have been no
need to obtain the false subcontractor invoices/proposals.” Id. And, the
government asserts, “Sharp’s statement to DRI employees in 2005 that ‘if the
insurance companies found out what we’re doing, our life would end as we know
it’ is powerful evidence that [Sharp and Griggs intended to deceive the insurance
companies.” Id. at 23-24.
In any event, the government argues, it is clear that the false
subcontractor invoices/proposals requested by DRI employees at the direction of
Sharp and Griggs “were kept in DRI’s job files to be provided to insurance
adjustors [sic] ‘upon request.’” Id. at 21 (quoting ROA at 306, 2981-82, 3003-
04). “While these false subcontractor invoices/proposals were not always
provided to insurance companies,” the government argues, “DRI’s practice of
routinely obtaining them so they could be provided to the insurance companies
‘upon request’ pervades the entire fraudulent scheme and conspiracy.” Id. at 22.
Further, the government argues, “DRI sent those false documents to the insurance
companies in connection with the jobs at Belterra (Count 4), Clear Creek (Counts
16 & 17), Evans (Count 23), Justen (Count 31), Lusman (Count 37), and
Taddonio (Count 53).” Id. “A rational jury,” the government argues, “could have
found these false subcontractor invoices/proposals were sufficient to support its
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verdicts in this case.” Id.After carefully examining the record on appeal, we agree with the
government that there was sufficient evidence to support Sharp’s convictions on
Counts 4, 23, 31, 37 and 53. 2 As the government notes, those counts of
conviction related to projects in which DRI supplied the insurers at issue with
copies of the inflated subcontractor invoices/proposals it had requested from its
subcontractors. Quite clearly, those invoices were false because they did not
show the true amount that the subcontractors had bid for the work, had expected
to receive from DRI, had billed DRI, or were ultimately paid by DRI. In other
words, those invoices falsely suggested, in each instance, that DRI was being
charged a higher amount by the subcontractor than was actually the case. And
DRI’s purpose in providing the invoices/proposals to the insurers was to persuade
them to pay the inflated amounts so that DRI could reap a profit on the
subcontractor’s work.
We likewise conclude that the evidence presented at trial was
sufficient to support the remaining counts of conviction (Counts 7, 8, 15, 22, 30
and 36) relating to projects in which the insurers did not request DRI to provide
copies of the underlying subcontractor invoices/proposals. In each of those
circumstances, DRI provided the insurer with an estimate that included at least
2
The jury convicted Griggs on Counts 16 and 17, but was unable to reach a
verdict on those counts as to Sharp.
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one subcontractor line item listing a dollar amount accompanied by a phrase such
as “per estimate,” “per proposal,” “per invoice,” or something similarly worded.
These statements were true in the sense that the subcontractors at issue had, in
fact, provided DRI with proposals matching the dollar amounts listed on DRI’s
estimates. But the statements omitted or concealed a key material fact: that there
was another, lower-priced proposal from the subcontractor that listed the true
price that DRI would be paying the subcontractor for its work on the project.
Thus, the estimates submitted by DRI to the insurers omitted or concealed a
material fact.
Relatedly, the government presented evidence from which a jury
reasonably could have found that Sharp and the other defendants acted with the
intent to defraud the insurers. To begin with, the government’s evidence
established that Sharp and the other defendants knew that DRI would make no
profit on its subcontractors’ work unless it submitted to the insurers estimates that
contained inflated prices for the subcontractors’ work. The government’s
evidence further established that DRI’s employees, at the direction of Sharp and
Griggs, began requiring DRI’s subcontractors, as a condition of receiving future
work from DRI, to submit two invoices: one listing the actual price that DRI
would pay the subcontractor upon completion of the work, and a second listing an
inflated price — typically 20-30% higher than the actual price — that DRI would
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provide to the insurer upon request. 3 The government’s evidence also established
that DRI, at the direction of Sharp and Griggs, concealed from insurers the
existence of the lower, actual-priced invoices. When this evidence of intent to
defraud is considered in connection with defendants’ concealment of the actual
subcontractor invoices and prices, the government’s evidence was clearly
sufficient to allow the jury to convict Sharp on these mail fraud counts. See
generally Schuler, 458 F.3d at 1152 (noting that intent to defraud may be inferred
from a variety of circumstantial evidence).
Sharp also makes two specific arguments regarding Counts 37 and
53. To begin with, Sharp notes that Count 37 “was based upon the fact that DRI
provided James Lynch — an independent adjuster for Sentry Insurance — with a
copy of a subcontractor proposal for abatement work prepared by Rocky
Mountain Abatement.” Sharp Br. at 17. Sharp asserts that “DRI made no
representations that the price to be charged Sentry was identical to what DRI
intended to pay for the abatement work.” Id. Rather, he asserts, “DRI simply
quoted a price (which Mr. Lynch determined was both fair and reasonable).” Id.As the government notes, however, the subcontractor proposal that
DRI provided to Lynch was the higher of the two invoices DRI was provided by
3
As the government aptly notes, “[u]nless Appellants intended to deceive
the insurance companies regarding what the subcontractors were charging DRI,
there would have been no need to obtain the false subcontractor
invoices/proposals.” Gov’t Br. at 23.
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its subcontractor, Rocky Mountain Abatement, and this higher invoice failed to
reflect the actual cost that DRI would be paying Rocky Mountain Abatement for
its work. Further, Lynch testified at trial that he relied on the accuracy of the
Rocky Mountain invoice in determining how much DRI should be reimbursed by
Sentry. Tr. at 1635. Consequently, we conclude that this count is not materially
distinguishable from the other counts of conviction.
As for Count 53, which related to the Taddonio project, Sharp argues
that it “requires a somewhat different analysis.” Sharp Br. at 17. Sharp notes
that Count 53 “was based upon an estimate provided by DRI which included a
subcontractor line item together with the statement that ‘actual cost once incurred
will be billed.’” Id. (quoting Exhibit 1048). Sharp argues that, “[b]ecause this
statement constitutes a representation about something that is to occur in the
future, it cannot be ‘false’ as a matter of law.” Id.The government argues in response that “there was ample evidence
for the jury to find that the statements in the DRI estimate for the Taddonio job
were false at the time they were made.” Gov’t Br. at 24. To begin with, the
government explains that “[t]he DRI estimate included a subcontractor line item
that stated, ‘Motorized shades - per proposal from Ananda and Suns’ for
$4,293.44,” and “[b]elow that line item, DRI Employee Justin Blackburn stated,
‘The above two line items are uncommon, and may not reflect the actual costs. If
this is the case, the actual costs once incur[r]ed will be billed.’” Id. (quoting Ex.
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App. at 1048). “However,” the government notes, “per Mr. Blackburn’s
instructions, DRI employee Greg Rye had previously obtained from Ananda &
Suns . . . two invoices for this work,” one “reflect[ing] the $3,484.32 that Ananda
. . . intended to charge DRI, and one falsely inflated by 20% to $4,293.44.” Id. at
25. And, the government notes, “Blackburn provided the falsely inflated invoice
to the insurance company.” Id. “This evidence,” the government argues,
“supports the jury’s conclusion that the statements in this DRI estimate were
intentionally false at the time they were made because . . . Blackburn knew that
Ananda . . . had already agreed to charge DRI a lower price.” Id.
We agree with the government. At the time DRI submitted its
estimate to the insurance company, it knew that Ananda had bid the job for
$3,484.32, approximately $800 less than the amount listed on DRI’s estimate.
DRI, however, concealed this fact from the insurance company and, instead, listed
the higher of the two amounts on its own estimate and in turn provided the
insurance company with the invoice from Ananda that falsely suggested Ananda
was charging DRI $4,293.44 for its work.
2. Was the evidence presented at trial sufficient to
establish that the alleged omissions or misstatements
were “material”?
In his second issue on appeal, Sharp challenges his mail fraud
convictions on another ground, i.e., that the government’s evidence was
insufficient to allow the jury to find that any of the alleged omissions or
22
misstatements underlying those counts were “material.” Sharp Br. at 20. In
support, Sharp argues that “[n]o person of ordinary prudence, engaged in an
arm’s-length negotiation over the fair and reasonable cost of a restoration project,
would rely upon his adversary’s representations about the costs associated with
that project when those costs can be, and usually are, verified independently.” Id.
at 21.
“To determine whether a statement is material the appropriate test is
to examine whether it has a natural tendency to influence, or is capable of
influencing a decision or action by another.” 4 United States v. Lawrence, 405
F.3d 888, 901 (10th Cir. 2005). “The question of whether a statement is material
is a question of fact for the jury to decide.” Id.We conclude, after viewing the evidence in the light most favorable
to the government, that a rational trier of fact could have found beyond a
reasonable doubt that the statements at issue in DRI’s estimates were material.
The phraseology that DRI chose to utilize in describing the subcontractor line
items in its own invoices clearly suggested that the dollar figures in those line
items were consistent with the amounts that DRI was paying its subcontractors.
And DRI perpetuated that false suggestion, when necessary, by providing copies
4
The district court instructed the jury, consistent with law of this circuit,
that “[a] false representation or pretense is material if it has a natural tendency to
influence or is capable of influencing the decision of a person or entity to whom
the representation or pretense is addressed.” ROA at 3066.
23
of the inflated subcontractor invoices to insurers upon request. In short, DRI’s
communications with the insurers suggested that DRI was simply charging the
insurers the actual amount that DRI would ultimately pay to its subcontractors.
Notably, the insurance adjusters who worked on the projects at issue testified that
they relied on the accuracy of this information provided to them by DRI. Thus,
DRI effectively lulled the insurance companies and their adjusters into believing
there was no need to investigate further the subcontractor line items, or to prepare
their own, independent estimates of the costs associated with the subcontractor
line items.
3. Did the district court err by refusing to instruct the
jury that Sharp could be convicted of mail fraud on the
basis of an omission only if he had a duty to disclose the
withheld fact?
In his third issue on appeal, Sharp argues that the district court erred
by refusing to instruct the jury that Sharp could be convicted of mail fraud on the
basis of an omission only if he had a duty to disclose the withheld fact. “We
review the district court’s decision to give a particular jury instruction for abuse
of discretion; however, we review the instructions as a whole de novo to
determine whether they accurately informed the jury of the governing law.”
United States v. Toledo, 739 F.3d 562, 567 (10th Cir. 2014).
Sharp is correct in noting “that ‘[w]hen an allegation of fraud is
based upon nondisclosure, there can be no fraud absent a duty to speak.’” United
24
States v. Cochran, 109 F.3d 660, 665 (10th Cir. 1997) (quoting Chiarella v.
United States, 445 U.S. 222, 235 (1980)). The question for us in this case is
whether Sharp was entitled to have the jury instructed on this legal principle.
And that, in turn, depends upon whether such an instruction was “supported by
competent evidence.” Pratt v. Petelin, 733 F.3d 1006, 1009 (10th Cir. 2013).
In order to resolve that question, we begin by reviewing the precise
arguments that were made by Sharp and his co-defendants prior to the district
court instructing the jury. As previously noted, the district court ultimately
instructed the jury, in Instruction No. 28, as to the meaning of a false pretense or
representation:
A representation or pretense is false if it is known to
be untrue or it is made with reckless indifference to its
truth or falsity. A representation or pretense can also be
false if it is a half-truth or omits or conceals a material
fact if it is made with the intent to defraud.
ROA at 3066 (Instruction No. 28). Prior to the district court doing so,
defendants objected to the last sentence of Instruction No. 28, in particular its
reference to “omit[ting] or conceal[ing] a material fact.” ROA at 3033-34.
Griggs’ counsel argued that it was his understanding “that omissions were coming
out of the case,” leaving at issue “some variety of affirmative misrepresentation.”
Id. at 3034. The district court responded, “Omissions are not out of the case.
They – omissions that fall within the mid-range of the spectrum that I identified
during the ruling [on defendants’ motion for judgment of acquittal] are part of the
25
case.” Id. Griggs’ counsel then stated, “I’ll just say that I think if omissions are
still in the case, then there should be some instruction about a duty to speak.” Id.The district court stated:
Let me be clear here. I have gone over the counts, and I
had a judgment – actually dismissed Count 51, where
there was no duty to speak. What I have determined as a
matter of law is that a mail fraud claim can be premised
on a combination of an affirmative representation
coupled with knowledge and omission that renders that
representation ambiguous or misleading. Cochran
refers to deceitful concealment of material facts. And
that’s in conjunction with . . . a representation.
Id. at 3034-35. The district court continued:
Let me clarify. And to the extent I was not clear in
my ruling [on defendants’ motions for judgment of
acquittal], this will supplement that ruling.
The spectrum that I see is, on one hand, an
affirmative misrepresentation. At the other end of the
spectrum is a mere non-disclosure, where there is no
duty to disclose. That’s the Cochran situation. And
midway in between is an affirmative representation
which becomes ambiguous or misleading in the absence
of a disclosure of additional information. And that is
the deceitful concealment of material facts.
Id. at 3035-36. Ultimately, the district court held as follows:
I find that Instruction No. 28 is an accurate statement
of the law when read in conjunction with Instruction No.
25. Instruction No. 25 states the elements that must be
proven by the Government with regard to each of the
mail fraud claims. It repeatedly uses the phrase “false
pretenses or representations.” And Instruction No. 28
really defines what is false in that context and it –– read
literally, the sentence says, “a representation or a
26
pretense can be false if it is a half-truth or it omits or
conceals a material fact.” That’s premised upon the fact
that there is a representation or a pretense. It is not
including a non-disclosure. And as read in that light, the
jury in applying this definition must find a
representation or pretense before determining whether it
is false. That being the case, I find no problem in the
instruction.
Id. at 3039.
We conclude, for two related reasons, that the district court’s
analysis was correct. First, as the district court noted, the jury could not have
found Sharp guilty based on a mere omission. Rather, Instruction Nos. 25 and 28
required the jury, in the course of considering each of the mail fraud counts, to
find the existence of a representation or pretense. Second, and contrary to
Sharp’s arguments below and now on appeal, none of the counts at issue were
based on pure “omissions.” 5 Rather, as we have explained, the counts at issue
were based on subcontractor line items in DRI’s estimates that listed the name of
the specific subcontractor and included a dollar amount combined with a phrase
such as “per detailed breakdown,” “per invoice,” “per estimate,” and “per
proposal.” That information, taken together, could reasonably have been
understood by the insurers as indicating that the dollar amounts listed by DRI
were identical to the amounts being charged DRI by the subcontractors. And,
5
Sharp argues in his opening brief that “[t]he trial court’s instructions
allowed the jury to convict [him] based upon a pure omission.” Sharp Br. at 25.
But Sharp points to no evidence to support this argument.
27
whenever an insurance adjuster asked to see a copy of the underlying
subcontractor invoice, DRI perpetuated the myth by providing the adjuster with a
copy of the inflated subcontractor invoice. 6 Consequently, the district court did
not abuse its discretion in refusing to instruct the jury that Sharp could be
convicted of mail fraud on the basis of an omission only if he had a duty to
disclose the withheld fact.
4. Did the district court err in giving the jury an Allen
instruction?
In his fourth issue on appeal, Sharp argues that the district court
erred by giving the jury an Allen instruction after it informed the district court
that it was unable reach a verdict.
a. Background
At approximately 1:26 p.m. on its fourth day of deliberations
(Thursday, August 9, 2012), the jury sent a note to the district court asking, in
effect, whether it was necessary for the defendants to have “know[n] about the
statute prohibiting mail fraud in order to be guilty of mail fraud.” ROA at 3244-
45. The district court responded to the jury as follows: “Please consider the
instructions as a whole. The definition of intent for conspiracy is found in
Instruction 21. The intent . . . required to commit mail fraud is set out in
6
This occurred in connection with Count 4 (the Belterra job), Counts 16
and 17 (the Clear Creek job), Count 23 (the Evans job), Count 31 (the Justen job),
Count 37 (the Lusman job), and Count 53 (the Taddonio job).
28
Instructions 25 and 27.” Id. at 3250.
Little more than an hour later, at 2:44 p.m., the jury sent a note to the
district court stating, “Under careful consideration in our deliberations, we, the
jury, are unable to return a verdict.” Id. at 3251. The note was signed by all
twelve jurors. Sharp’s counsel argued that the jury’s note was a definitive
statement that they were unable to reach a verdict, and that the district court
should, consequently, declare a mistrial and discharge the jury. Counsel for the
other defendants agreed. The district court, however, stated that it was “not
inclined to grant the motion for mistrial at this time” because “[t]he jurors have
not been instructed that they can reach a verdict on some but not all counts.” Id.
at 3252-53. In turn, the district court stated that it “intend[ed] to call the jurors
into the courtroom and to both reread the modified Allen instruction found at
Instruction No. 34 and advise them that, one they can continue and should
continue their deliberations as to all of the counts that are at issue, and,
secondarily, those counts that they can render a verdict on, they should proceed to
do so.” Id. at 3253. The government had no objection to this proposal, but
Sharp’s counsel objected, arguing that the district court’s proposed instruction
would act as “a signal of disapproval” to the jury. Id. at 3254. Griggs’ counsel
likewise objected. Id. at 3254-55.
The district court proceeded to bring the jury into the courtroom and
instruct them as follows:
29
Ladies and gentlemen of the jury, I have received
your communication which we’ve numbered as
Communication No. 13, in which you have stated
“Under careful consideration in our deliberations, we,
the jury, are unable to return a verdict.”
It is not uncommon in the course of deliberations for
members of a jury to believe that they have reached an
impasse. Sometimes the mere passage of time, taking a
break, sometimes a fresh perspective, allows jurors to
reach past an impasse. I remind you that Instruction No.
34 tells you that it is your duty as jurors to consult with
one another and to deliberate with a view to reaching an
agreement if you can do so without violence to
individual judgment. You must each evaluate the
evidence for yourself, but only after impartially
considering it with your fellow jurors. In the course of
your deliberations, do not hesitate to reexamine your
own views and change your opinion if you are convinced
it is erroneous. However, do not surrender your honest
conviction as to the weight or effect of evidence solely
because of the opinion of your fellow jurors or for the
mere purpose of returning a verdict.
A verdict in this case is not necessarily a singular
verdict. You may render a verdict on any count upon
which you can agree. There may be some counts upon
which you cannot agree; and in that event, you may not
be able to render a verdict.
Your reference here to being able to return a verdict
suggests to me that you are thinking that you cannot
return a verdict because you cannot agree on all of the
counts. I urge you to go back and reconsider and see if
there are any of the counts that you can agree on. And if
there are counts that you can agree on, to render a
verdict on those counts.
Recognizing that you’ve been working very hard this
week, long hours, I think it will be helpful for you,
perhaps, to take a break for the rest of the day.
Id. at 3255-56. The jury proceeded, with the agreement of the district
court, to take a three-day break and reconvened on Monday, August 13, 2012. On
30
the afternoon of Wednesday, August 15, 2012, after approximately two-and-a-half
days of additional deliberation, the jury reached a partial verdict and was unable
to return a verdict on the remaining counts. 7 Id. at 3277-79, 3281-85.
b. Analysis
We review for abuse of discretion a district court’s decision to give
an Allen charge. See United States v. Cornelius, 696 F.3d 1307, 1321 (10th Cir.
2012); United States v. Ailsworth, 138 F.3d 843, 851 (10th Cir. 1998).
“A district court may issue an Allen instruction urging deadlocked
jurors to review and reconsider the evidence in the light of the views expressed by
other jurors so as to avoid a mistrial, provided that the instruction does not
impose such pressure on the jury such that the accuracy and integrity of the
verdict becomes uncertain.” Cornelius, 696 F.3d at 1321 (internal quotations,
7
As to the conspiracy charge, which was Count 1, the jury found Sharp
and Griggs guilty, but found Blackburn and Travers not guilty. As to the
individual mail fraud counts, the jury found as follows: Count 2 (Griggs, Sharp
and Travers all not guilty); Count 4 (Griggs and Sharp guilty); Counts 7-8 (Griggs
guilty; unable to reach a verdict as to Sharp); Count 14 (all defendants not guilty);
Count 15 (Griggs and Sharp guilty; Blackburn not guilty); Counts 16-17 (Griggs
guilty; unable to reach a verdict as to Sharp); Counts 18-19 (Griggs, Sharp and
Travers all not guilty); Count 22 (Griggs and Sharp guilty; Travers not guilty);
Count 23 (Griggs and Sharp guilty); Counts 24-25 and 27-28 (Griggs, Sharp and
Blackburn all not guilty); Counts 30-31 (Griggs and Sharp guilty; Blackburn not
guilty); Counts 32-35 (Griggs, Sharp and Blackburn all not guilty); Count 36
(Griggs and Sharp guilty; Blackburn not guilty); Count 37 (Griggs and Sharp
guilty; Blackburn not guilty); Counts 41-42, 47-48, 50, 52 (unable to reach a
verdict as to any defendant); Count 53 (Griggs and Sharp guilty; unable to reach a
verdict as to Blackburn); Counts 56-57 (unable to reach a verdict as to any
defendant).
31
alterations, and citations omitted). “In considering whether an Allen instruction
was improperly coercive, we consider (1) the language of the instruction, (2)
whether the instruction is presented with other instructions, (3) the timing of the
instruction, and (4) the length of the jury’s subsequent deliberations.” Id.
(internal quotation marks and citations omitted). “The ultimate question is
whether the instruction was impermissibly coercive in a way that undermined the
integrity of the deliberation process.” Id. (internal quotation marks, citation and
alteration omitted).
We conclude that the district court’s Allen instruction in this case
was not improperly coercive. To begin with, the district court’s statement, “do
not hesitate to reexamine your own views and change your opinion if you are
convinced it is erroneous,” ROA at 3255, effectively “urged all jurors, not just
those in favor of acquittal, to reconsider their views according to the proper
standard of the law,” Cornelius, 696 F.3d at 1322. The language of the
instruction also effectively encouraged, rather than “undermined,” the deliberative
process. Id. To be sure, the instruction was read alone by the district court after
the jury had deliberated for several days and then indicated that it was unable to
return a verdict. See United States v. LaVallee, 439 F.3d 670, 690 (10th Cir.
2006) (“[T]here is no per se rule against giving an Allen charge once the jury has
begun to deliberate.”). But in the present case, the instruction had been
previously read to the jury as part of the initial jury instructions, and the district
32
court reminded the jury of that fact. Following the district court’s reading of the
Allen instruction, the jury proceeded to deliberate for two-and-a-half more days.
Notably, the jury did not convict Sharp and Griggs on all of the counts at issue.
Indeed, the jury remained deadlocked with respect to several of the counts at
issue. And, with respect to defendants Blackburn and Travers, the jury either
acquitted them or was deadlocked. Thus, considering all of these factors together,
we are not persuaded that the district’s Allen instruction imposed such pressure
on the jury as to call into question the accuracy and integrity of its verdicts.
Sharp argues, however, that “[t]here are three problems with the
language of the court’s Allen instruction and its comments regarding a partial
verdict that rendered the instruction improperly coercive.” Sharp Br. at 29. To
begin with, Sharp argues, by telling the jury that “the mere passage of time [or]
taking a break . . . allows jurors to reach past an impasse,” and then excusing the
jury for a three-day break, the district court effectively “encouraged the jurors to
take a break with an eye towards any holdouts returning at [a] later time and
capitulating.” Id. at 30. As we have noted, however, the language of the district
court’s Allen instruction actually encouraged all of the jurors, and not just the
purported “holdouts,” to reconsider their views. Further, as the government
correctly notes, it was the jury that requested the three-day break; the district
court did not unilaterally impose that break on the jury. Thus, we reject Sharp’s
assertion regarding the “message” sent to the jury by the district court.
33
Sharp next complains that the district court’s “instruction did not
reiterate the fact that the burden of proof was on the government, and that [he]
had no burden to prove anything.” Id. Sharp is correct on this point and “[i]t
would, of course, be more palatable if the jury [had been] reminded of the
presumption of innocence and burden of proof.” United States v. Winn, 411 F.2d
415, 417 (10th Cir. 1969). But, as the government notes, the absence of this
language is not per se prejudicial. And, importantly, the district court did
emphasize to the jurors that they should “not surrender [their] honest
conviction[s] as to the weight or effect of evidence solely because of the opinion
of . . . fellow jurors or for the mere purpose of returning a verdict.” ROA at
3256.
Third, Sharp argues that “the court’s instruction improperly
interfered with the structure and course of the jury’s deliberations by admonishing
the jury to return a partial verdict if at all possible.” Sharp Br. at 31. But a close
examination of the district court’s Allen instruction indicates that the district
court’s reference to the possibility of a partial verdict was clearly intended to
alleviate any concerns on the part of the jury “that [they could not] return a
verdict because [they could not] agree on all counts.” ROA at 3256. Moreover,
the district court did not suggest, as was the case in LaVallee, that the jury could
or should seal or return partial verdicts as they were reached or prior to the
conclusion of the deliberative process. Thus, Sharp’s argument in this regard
34
lacks merit.
Finally, Sharp complains about the timing of the Allen instruction,
noting that it “was given, not just after the jury had begun its deliberations, but
after it had been deliberating for four days, and after it advised the court . . . that
it was deadlocked.” Sharp Br. at 33. But we have previously upheld the giving
of an Allen instruction under nearly the same circumstances as occurred here, i.e.,
“after the jury deliberated for four days, returned a partial verdict, and announced
that it was deadlocked.” Ailsworth, 138 F.3d at 851-52. In concluding that “[t]he
timing of the Allen instruction[] . . . was not problematic,” we noted that “[t]he
court first gave an Allen instruction to the jury when it charged the jury before
deliberations began.” Id. at 851. Notably, the district court in this case did so as
well. In other words, the jury in this case was given the Allen instruction for the
first time prior to deliberations, and it was reread to them after four days of
deliberation. Consistent with Ailsworth, we conclude that this timing was not
“problematic.” Id.
5. Is Sharp entitled to have his convictions vacated
under the rule established in Cochran?
In his fifth and final issue on appeal, Sharp “incorporates by
reference the first argument advanced by . . . Griggs in his Opening Brief,” i.e.,
that his convictions must be vacated in light of this court’s decision in Cochran.
Sharp Br. at 34. As we shall discuss in greater detail below in the section
35
addressing Griggs’ appeal, this issue lacks merit.
B. Griggs’ Appeal
Griggs raises six issues in his appeal: a challenge to his convictions
based upon this court’s decision in Cochran, two sufficiency-of-the-evidence
issues (the same two issues raised by Sharp), two instruction-related issues (the
same two instruction-related issues as Sharp), and, finally, a challenge to the
$500,000 fine imposed by the district court at sentencing. As with Sharp’s
appeal, we conclude that all of the issues raised by Griggs lack merit.
1. Is Griggs entitled to have his convictions vacated on
the basis of this court’s decision in Cochran?
In his first issue on appeal, Griggs contends that the government’s
evidence was insufficient to support his convictions. As we have noted, “[w]e
review the sufficiency of evidence de novo.” Serrato, 742 F.3d at 472.
a. The Cochran decision
Griggs bases his sufficiency-of-evidence challenge on our decision in
Cochran. The defendant in that case, Robert Cochran, was the head of the
Oklahoma City Municipal Bond Underwriting Department of Stifel, Nicolaus &
Company (Stifel), a company that participated in underwriting municipal bond
issues. Stifel was a co-managing underwriter for almost $77 million in taxable
20-year revenue bonds issued by the Oklahoma City Airport Trust (OCAT).
Stifel also, in connection with the deal, brokered a collateralized guaranteed
36
investment contract between OCAT and the Postipankki Bank, a Finnish bank.
This contract allowed OCAT to invest the bond proceeds at a fixed rate until
needed and earn a return in excess of most short-term investments. Stifel located
Postipankki, the highest bidder in terms of the guaranteed interest rate offered,
with the help of Pacific Matrix Financial Corporation, a California money broker.
At the direction of Stifel, Postipankki reduced slightly the amount of the
guaranteed interest percentage it offered in its original bid (Postipankki would
have been the highest bidder even based on its net bid) to account for broker fees
charged by Stifel and Pacific Matrix. Those fees totaled $529,241.09, of which
Stifel received $489,241.09. OCAT was unaware of the fees or that Postipankki’s
original bid was for a slightly higher guaranteed rate of interest. The return from
the guaranteed investment contract earned OCAT more than $1.5 million, and the
net rates it earned were over twice what it was making on short-term Treasury
securities.
As a result of the OCAT transaction, Cochran was indicted on two
counts of wire fraud (specifically a telephone call directing the Postipankki bid
reduction and a fax transmission from Pacific Matrix to Oklahoma bond counsel
reflecting the reduced bid amount) and one count of money laundering. Cochran
was subsequently convicted by a jury of these counts and was sentenced to a term
of imprisonment and ordered to pay restitution in an amount equal to the broker
fee received in the OCAT transaction.
37
On appeal, Cochran “argue[d] that he had no duty to disclose (to
OCAT) the Stifel commission on the guaranteed investment contract placed with
Postipankki bank.” 109 F.3d at 665. We agreed. In reaching this conclusion, we
noted “[t]he evidence in this case does not support [the existence of a fiduciary]
duty [between Stifel/Cochran and OCAT], nor does it support the government’s
alternate theory that Stifel’s affirmative misstatements of fact (the net bids)
induced false beliefs regarding the amount of the Postipankki bid to OCAT.” Id.We emphasized that we “analyze[d] the government’s alternate theory virtually
the same way as its nondisclosure theory because the alternate theory presupposes
a duty to disclose with any statements unaccompanied by such disclosure deemed
fraudulent.” Id. “The record,” we noted, “ma[de] it clear that even among the
government’s industry witnesses no consensus existed concerning proper
reinvestment fee disclosure.” Id. at 666. Consequently, we held that “[t]he wire
fraud counts pertaining to the OCAT transaction must be reversed.” Id. at 667.
b. The district court’s rejection of Griggs’ Cochran-based challenge
Griggs, citing Cochran, moved for a judgment of acquittal on all
counts at the conclusion of the government’s case, at the conclusion of all the
evidence, and after the jury had returned its verdict. The district court dismissed
one of the mail fraud counts at issue (Count 51), 8 but rejected Griggs’ motions
8
In the project at issue in Count 51, the government’s evidence established
(continued...)
38
with respect to the remaining counts at issue.
c. Griggs’ challenge to the district court’s decision
Griggs argues that “[t]he district court’s attempt to distinguish this
case from Cochran fails.” Griggs Br. at 19. In support, Griggs asserts that “[i]n
Cochran, the broker [defendant] provided an affirmative representation
concerning the interest rate offered to OCAT.” Id. “The ‘quoted’ rate,” Griggs
asserts, “was less than the ‘original’ rate the bank was willing to pay,” and “[t]hat
‘original’ rate had been reduced to cover the broker fee to the defendant[].” Id. at
19-20. “In this case,” Griggs argues, “the quoted rate for the cost of the
subcontractors was higher than the amount actually paid to the subcontractor
because the quoted amount included profit and overhead for DRI.” Id. at 20. “In
other words,” he argues, “the ‘retail rate’ charged to the insurance company
included the ‘wholesale rate’ paid to the subcontractors plus a markup for profit
and overhead.” Id. He argues that “DRI’s estimates for the insurance companies
accurately represented what DRI was charging for the work of the subcontractors
but omitted disclosing the amount of the markup DRI was charging for that
work.” Id. “In Cochran,” he argues, “the quoted rate to OCAT was what the
bank was paying, but omitted disclosing that the bank had reduced the rate it was
8
(...continued)
that DRI dealt exclusively with the property owner, Steve Rosen, who was acting
as his own general contractor overseeing the repair of his property. In other
words, DRI did not make any representations to Rosen’s insurance company.
39
willing to pay in order to cover the cost of the broker fee.” Id.
Ultimately, Griggs argues that, “[s]ince it is not contested that DRI
had no duty to disclose to the insurance companies, this case is controlled by the
holding in Cochran.” Id. “Indeed,” Griggs argues, “the relationship between DRI
and the insurance companies was much more arms-length than that between the
broker and OCAT in Cochran.” Id. According to Griggs, “[u]nder these facts,
DRI charging the insurance companies a retail price for the work of
subcontractors without disclosing that the subcontractors were paid a wholesale
amount, when there was no duty of disclosure, cannot be deemed a nondisclosure
coupled with an affirmative misrepresentation which induced a false belief among
the insurers.” Id. at 21.
We reject Griggs’ arguments and conclude that the district court
correctly distinguished this case from Cochran. The basis for the fraud charges in
Cochran was the defendant’s nondisclosure of information to OCAT. Although
the defendant in Cochran truthfully informed OCAT of the guaranteed interest
rate it would receive from the bank, he failed to disclose to OCAT (a) the fact
that the bank had originally offered a slightly higher guaranteed interest rate, (b)
the fact that he and Stifel would be receiving a commission from the bank, and (c)
the fact that the bank effectively paid for the commission by lowering slightly the
amount of the guaranteed interest rate.
The case at issue involving DRI, in contrast, involves more than the
40
nondisclosure of information. In each of the counts at issue, DRI submitted to an
insurance company a written estimate that included one or more line items listing
work to be performed by a subcontractor, along with a dollar amount and a phrase
such as “per detailed breakdown,” “per invoice,” “actual cost . . . per invoice,”
“per estimate,” or “per proposal.” This information was truthful only in the sense
that the amount listed on the subcontractor line item matched one of the two
invoices submitted by the subcontractor to DRI. What DRI’s estimate failed to
inform the insurer, however, was that the matching invoice was generated by the
subcontractor only at DRI’s request and solely for the purpose of hiding the fact
that DRI was paying the subcontractor a lesser amount, and DRI was receiving
the difference. By structuring its estimates and supporting documentation in this
manner, DRI falsely suggested to the insurer that the amount listed on the
subcontractor line item was the precise amount that DRI would be paying the
subcontractor for its work. Thus, in sum, the case at hand did not involve a mere
nondisclosure, but rather involved an affirmative representation combined with a
related nondisclosure. Together, these affirmative acts coupled with material
omissions resulted in the deceitful concealment of material facts from the
insurers.
Griggs also argues that, “[b]ecause one cannot be guilty of
conspiring to do something that is not a crime, the failure of the government to
present sufficient evidence of mail fraud means there is insufficient evidence to
41
sustain [his] conspiracy conviction.” Griggs Br. at 21. This argument, however,
fails for the reasons outlined above, i.e., there was sufficient evidence to support
his convictions for mail fraud.
Finally, Griggs argues that criminalizing the conduct at issue in this
case violates due process. Id. at 22. This argument, like his other Cochran-based
argument, rests largely, if not exclusively, on the notion that the conduct at issue
involved the mere nondisclosure of information. In particular, Griggs argues that
criminalizing the conduct at issue in this case retroactively imposed a duty on him
and his codefendants, as private individuals, to disclose information in private
business transactions. Id. Griggs also argues that “typical commercial actors,
such as the defendants in this case, could not have contemplated or appreciated
the fine lines drawn by the district court.” Id. at 23. Consequently, he argues,
“constitutional notice of what constituted criminal conduct was not provided,”
and his convictions must therefore be reversed. Id.
“[D]ue process requires citizens be given fair notice of what conduct
is criminal.” United States v. Apollo Energies, Inc., 611 F.3d 679, 687 (10th Cir.
2010). “A criminal statute cannot be so vague that ‘ordinary people’ are
uncertain of its meaning.” Id. (quoting Kolender v. Lawson, 461 U.S. 352, 357
(1983)). “As generally stated, the void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not
42
encourage arbitrary and discriminatory enforcement.” Kolender, 461 U.S. at 357.
The mail fraud statute Griggs was convicted of violating, 18 U.S.C. §
1341, makes it a crime to engage in a scheme or artifice to defraud or obtain
money or property “by means of false or fraudulent pretenses, representations, or
promises.” As the district court’s instructions in this case correctly informed the
jury, a representation is “false” if it is known to be untrue or is made with
reckless indifference as to its truth or falsity, and a representation is “false” when
it constitutes a half truth, or effectively omits or conceals a material fact,
provided it is made with intent to defraud. Tenth Circuit Pattern Jury
Instructions, Criminal, § 2.56 (2011).
Notably, Griggs does not appear to dispute that the mail fraud statute
adequately placed him on notice that it was illegal to engage in a scheme or
artifice to obtain money by means of false statements. Rather, his due process
arguments appear to be confined to the mere nondisclosure of information. As we
have explained, however, the government’s case against Griggs, Sharp and their
codefendants did not rest on the mere nondisclosure of information. Rather, the
government’s case focused on half-truths or representations that effectively
omitted or concealed material facts. Moreover, it is worth noting that the manner
in which Griggs and Sharp structured their system of subcontractor invoicing
(requiring subcontractors to submit two invoices), combined with the manner in
which DRI provided estimates to insurers (falsely implying that the amounts
43
listed for subcontractor work were the actual amounts to be paid by DRI to the
subcontractors), clearly suggested that Griggs and Sharp knew that insurers would
not, if they knew all of the facts, pay DRI the inflated subcontractor amounts
listed on its estimates. Indeed, the government’s evidence established that Sharp
told DRI employees during a meeting concerning this system of subcontractor
invoicing “that if the insurance companies found out what we were doing, our life
would end as we know it.” ROA at 130 (testimony of Greg Rye, former project
manager at DRI). Consequently, we conclude there is no merit to Griggs’ due
process arguments.
2-5. Incorporation of issues raised by Sharp
In his second, third, fourth, and fifth issues on appeal, Griggs
incorporates by reference four of the arguments asserted by Sharp: that the
evidence presented at trial was insufficient to establish that he obtained money by
false pretenses or representations; that the evidence presented at trial was
insufficient to establish that the alleged omissions or misstatements were
material; that the district court erred by refusing to instruct the jury that Griggs
could be convicted on the basis of a material omission only if he had a duty to
disclose the withheld fact; and that the district court erred by giving the jurors an
Allen instruction after they indicated that they could not reach a unanimous
verdict. Griggs Br. at 25-27. For the reasons we outlined in addressing Sharp’s
appeal, we conclude that these issues lack merit.
44
6. Was the $500,000 fine imposed by the district court unreasonable?
In his sixth and final issue on appeal, Griggs challenges the
procedural and substantive reasonableness of the $500,000 fine that was imposed
by the district court as part of his sentence. In particular, Griggs argues that the
fine imposed in his case “is procedurally unreasonable because . . . the district
court (1) failed to calculate the Guideline range fine, (2) failed to explain why it
was necessary to deviate from the Guideline-range fine urged by the government
or reject the $15,000 fine recommended in the PSI to accomplish its sentencing
goal; [sic] (3) neither considered nor accounted for restitution of more than
$477,000 that . . . Griggs was ordered to pay; and (4) did not consider the burden
the fine placed on . . . Griggs’ wife and daughter who are dependent on him at a
time the court also was imposing a 50-month term of imprisonment.” Griggs Br.
at 32. Griggs also argues that the fine is substantively unreasonable for these
same reasons. Id. at 36 (“The failings that render this fine procedurally
unreasonable also make this fine substantively unreasonable and an abuse of
discretion.”).
a. Procedural background
The presentence investigation report (PSR) recommended that a fine
in the amount of $15,000 be imposed against Griggs. Griggs agreed with this
recommendation. The government, however, objected to this recommendation
and argued that a fine of $125,000, an amount at the top of the Guidelines range,
45
was warranted.
At Griggs’ sentencing hearing, the government argued that Griggs
had hidden assets during the course of the probation office’s presentence
investigation. In particular, the government argued that Griggs “actively misled”
the probation officer “about his current control and ownership of Restoration
Logics,” a company that had taken over DRI’s business, “through his ownership
and control of [a third entity called] JENMAR.” Griggs App. at 448.
The district court agreed with the government on this point. In the
course of pronouncing Griggs’ sentence, the district court found that the
presentence investigation “[wa]s sort of a cat and mouse game” in which “Griggs
did not come forward and disclose voluntarily all of his financial information.”
Id. at 467. In particular, the district court noted that Griggs failed to provide
information to the probation officer regarding a number of “assets and transfers
that [were] made during the course of this case.” Id. at 468. This included, the
district court noted, information regarding “the actual worth of Restoration
Logistics, which bought out DRI,” “whether this was an asset sale or a stock
sale,” “what purchase price was paid,” and how much Griggs received from the
sale of DRI. Id. at 467. The district court also “f[ound] some of the
representations that . . . Griggs made to the probation officer to be somewhat
insincere and incredible.” Id. at 469. Ultimately, the district court found that
there was an “attempt [by Griggs] to shelter assets from collection in anticipation
46
of imposition of a restitution amount and a forfeiture award and a fine.” Id. And
Griggs’ actions in that regard, the district court stated, factored into its sentencing
decisions. Id.
The district court adopted most of the information contained in the
PSR and found that Griggs’ “Total Offense Level [wa]s 27,” and his “Criminal
History Category [was] I,” resulting in a guideline sentencing range “of 70 to 87
months, 1 to 3 years of supervised release on each count, a fine of $12,500 to
$3,500,000, and a special assessment of $100 per count.” Id. at 463. The district
court then imposed a below-Guidelines term of imprisonment of fifty months,
“followed by 3 years of supervised release, a fine of $500,000, a restitution
obligation of [$]477,643.49, . . . and a special assessment of $1,400.” Id.
After imposing this sentence, the district court asked if “there [was]
any need for clarification, further explanation, objection, or request for
continuance?” Id. The prosecutor asked if the district court “could . . . make a
record as to why that particular $500,000 [fine] number was chosen” since it was
“above the guideline range.” Id. at 471. The district court responded: “The
guideline range is $12,500 to 3,500,000.” Id. The prosecutor then stated, “The
top end of that range that you cited is the statutory maximum allowed by the
counts of conviction,” but “the guideline range . . . for an offense category of 27
47
is $12,500 to $125,000.” 9 Id. The district court responded, “This is a variant
sentence.” Id. at 472. Pursuant to the prosecutor’s request, the district court then
specified its reasons for imposing a fine that varied from the Guidelines range:
I carefully studied the financial information that was
contained in the presentence report, that which was
supplied, including the income that was reported by Mr.
Griggs over years 2006 through 2011. 2006, it was
$696,000; 2007, $292,000; 2008, $385,000; 2009,
$174,000; 2010, $358,000; and 2011, $273,000. Given
that amount of income and the relatively small number
of assets that are reflected in the presentence report, I
believe both that Mr. Griggs has a capacity to earn
money, and I suspect that the disclosure of the assets
that were acquired during that time is not accurate or
complete.
Id.
Immediately following its explanation, the district court asked
Griggs’ counsel if he had any response. Id. at 473. Griggs’ counsel responded:
Of course, Your Honor, we continue and persist in
the position that the fine should be imposed within the
fine range, especially given that the counts were grouped
in this case. We understand the Court’s ruling. I think
our position is already made known and clear in the
record. But we think the fine at the level announced by
the Court is inappropriate and that the fine should be
9
A review of the record suggests that the district court’s misunderstanding
of the guideline fine range derived from the original and revised PSRs, both of
which stated erroneously that “[t]he fine range is from $12,500 to $3,500,000,
pursuant to §5E1.2(c)(3).” Dist. Ct. Docket Nos. 1530 and 1558 at ¶ 110.
Notably, neither Griggs nor the government objected to this portion of either PSR.
Thus, it was not until the time of sentencing that the prosecutor brought this error
to the district court’s attention.
48
imposed within the guideline range.
Id. The district court then asked, “Even though this is a variant sentence?”
Id. Griggs’ counsel responded, “I understand that it’s a variant sentence, but it’s
not on the Government’s motion. And I think I’ve made my record.” Id.
b. Standard of review
Generally speaking, we review sentences, including fines, for
reasonableness under a deferential abuse-of-discretion standard. See United
States v. Vigil, 644 F.3d 1114, 1123 (10th Cir. 2011). “Reasonableness review is
a two-step process comprising a procedural and a substantive component.”
United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir. 2009) (internal
quotation marks omitted). “Procedural reasonableness involves using the proper
method to calculate the [fine].” United States v. Conlan, 500 F.3d 1167, 1169
(10th Cir. 2007). Substantive reasonableness, in contrast, involves whether the
amount of the fine at issue is reasonable given all the circumstances of the case in
light of the statutory and Guidelines factors. See generally United States v.
Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009).
The government argues, however, and we agree, that plain error
review applies to Griggs’ challenges to the procedural reasonableness of the fine
imposed by the district court. As outlined above, Griggs’ counsel argued only
that the fine was “inappropriate” and should fall “within the guideline range.”
App. at 473. Nothing about these general objections was sufficient to alert the
49
district court to the more-specific procedural objections that Griggs now asserts
on appeal. Accordingly, we conclude that Griggs’ objections to the procedural
reasonableness of his fine are unpreserved and thus subject to review only for
plain error. See United States v. Romero, 491 F.3d 1173, 1177-78 (10th Cir.
2007). “We find plain error only when there is (1) error, (2) that is plain, (3)
which affects substantial rights, and (4) which seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at 1178.
c. Analysis
Griggs’ first two procedural challenges, i.e., that the district court
failed to calculate the Guidelines range for the fine and failed to explain its
reasons for deviating from the Guidelines range, are without merit. Although the
PSR misstated the upper end of the Guidelines fine range, neither party objected
to that error. Thus, it was not until the time of sentencing, when the district court
expressly adopted the Guidelines fine range stated in the PSR, that the prosecutor
realized the error and brought it to the attention of the district court. The district
court in turn recognized the error and thus effectively adopted the proper
Guidelines fine range as outlined by the prosecutor. The district court also, at the
urging of the prosecutor, explained its reasons for imposing a fine that varied
above the Guidelines range. Consequently, there was no procedural error in this
regard, and thus no plain error.
Griggs’ latter two procedural arguments also lack merit. To be sure,
50
the district court did not expressly discuss the interplay of the restitution and fine
that it imposed, nor did it discuss any potential burden the fine might place on
Griggs’ wife and daughter. But the district court did, in explaining its reasons for
imposing an above-Guidelines-range fine, find that Griggs had hidden assets from
the probation office, or at least effectively prevented the probation office from
discovering substantial assets. As a result of this conduct, the district court
clearly concluded that both restitution and a substantial fine were appropriate and
warranted. Notably, Griggs makes no effort to challenge the district court’s
finding on this point. Consequently, he has failed to establish that any error on
the part of the district court affected his substantial rights, or otherwise seriously
affected the fairness, integrity, or public reputation of the judicial proceedings.
Having concluded that the district court’s sentencing decision was
“procedurally sound” under the plain error standard of review, we are left to
“consider the substantive reasonableness of the [fine] imposed under an abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 51 (2007). In doing so,
we must “take into account the totality of the circumstances, including the extent
of any variance from the Guidelines range.” Id. Because the fine in this case “is
outside the Guidelines range,” we “must give due deference to the district court’s
decision that the § 3553(a) factors, on a whole, justify the extent of the variance.”
Id.
The extent of the variance of the fine imposed in this case was, to be
51
sure, substantial. Although the upper end of the Guidelines range fine was
$125,000, the district court concluded that a fine four times greater than the upper
end of the Guidelines range, i.e., $500,000, was warranted based upon its findings
that Griggs attempted to conceal assets from the probation office during its
presentence investigation. The question for us is whether, giving due deference
to the district court’s decision, the circumstances of this case, including Griggs’
conduct during the presentence investigation, justified the extent of the variance.
Two of the Application Notes to U.S.S.G. § 5E1.2 provide useful
guidance in making our determination. To begin with, Application Note 4
provides that a significant amount of loss may justify a fine that exceeds the
Guidelines range:
The [Sentencing] Commission envisions that for most
defendants, the maximum of the guideline fine range
from subsection (c) will be at least twice the amount of
gain or loss resulting from the offense. Where,
however, two times either the amount of gain to the
defendant or the amount of loss caused by the offense
exceeds the maximum of the fine guideline, an upward
departure from the fine guideline may be warranted.
Moreover, where a sentence within the applicable fine
guideline range would not be sufficient to ensure both
the disgorgement of any gain from the offense that
otherwise would not be disgorged (e.g., by restitution or
forfeiture) and an adequate punitive fine, an upward
departure from the fine guideline range may be
warranted.
U.S.S.G. § 5E1.2, cmt. n.4. In this case, it was undisputed that the amount
52
of loss caused by Griggs’ conduct was $477,643.49. Because “two times” this
amount of loss ($955,286.98) greatly “exceeds the maximum of the fine
guideline” ($125,000), this is, without question, a case where it was appropriate
for the district court to consider “an upward departure” or variance “from the fine
guideline range.” Id.
Application Note 6 also provides that “[t]he existence of income or
assets that the defendant failed to disclose may justify a larger fine than that
which otherwise would be warranted under this section.” U.S.S.G. § 5E1.2, cmt.
n.6. That certainly captures the situation before us. As we have noted, the
district court expressly found that Griggs concealed assets from the probation
office during the course of its presentence investigation. And Griggs, though now
challenging the amount of the fine imposed, makes no attempt to challenge the
district court’s findings regarding his concealment of assets.
We are persuaded from reviewing the transcript of the sentencing
hearing that the district court’s decision to impose a $500,000 fine on Griggs was
consistent with Application Notes 4 and 6. Not only was the district court well
aware of the amount of loss at issue, it expressly emphasized, and expressed
displeasure with, Griggs’ efforts to conceal assets during the presentence
investigation. And it was this latter factor that the district court mentioned when
asked by government counsel to explain its reasons for varying upward from the
Guidelines range.
53
The only potentially unusual factor in this case, and the one that
appears to concern the dissent, was the district court’s decision, when informed
by the government that the upper end of the Guidelines range was $125,000 rather
than $3,500,000, to stick with the amount of the fine that it originally selected
and vary upwards from the Guidelines range. We are not persuaded, however,
that this circumstance renders the amount of the fine “arbitrary, capricious,
whimsical, or manifestly unreasonable.” United States v. Naramor, 726 F.3d
1160, 1171 (10th Cir. 2013) (internal quotation marks omitted). To the contrary,
we are convinced that the district court in this case carefully selected the amount
of the fine — approximately equal to the amount of the loss associated with
Griggs’ offense — both to ensure the disgorgement of any gain from the offense
and to ensure that Griggs was adequately punished for his offense and for his
concealment of assets during the presentence investigation.
Thus, in sum, we conclude that the amount of the fine imposed by the
district court was substantively reasonable.
III
Having rejected each of the claims for relief asserted by Sharp and
Griggs, we AFFIRM their convictions and sentences.
54
No. 13-1114, United States v. Sharp; No. 13-1117, United States v. Griggs
HOLLOWAY, Circuit Judge, concurring in part and dissenting in part.
I join the majority in affirming the convictions of both Charles Sharp and Michael
Griggs. Like the majority, I also believe that Mr. Griggs’s challenge to the procedural
reasonableness of his sentence must be reviewed for plain error only. But the majority
and I part company on the question of the substantive reasonableness of Mr. Griggs’s fine
itself. I am unable to assent to the majority’s conclusion that the district court’s
imposition of a $500,000 fine on Mr. Griggs was substantively reasonable “given all the
circumstances of the case in light of the factors set forth in § 3553(a).” United States v.
Sayad, 589 F.3d 1110, 1116 (10th Cir. 2009) (brackets and internal quotation marks
omitted). Accordingly, I would vacate the $500,000 fine imposed on Mr. Griggs and
remand to the district court for resentencing.
A “‘sentence’ is broadly defined to include not just terms of imprisonment, but
also . . . fines.” United States v. Perez–Jiminez, 654 F.3d 1136, 1146 (10th Cir. 2011);
see also 18 U.S.C. § 3551(b)(2) (“An individual found guilty of an offense shall be
sentenced . . . to . . . a fine . . . .”). When determining the amount of a fine, a district
court is bound to consider “the burden that the fine will impose upon . . . any person who
is financially dependent on the defendant.” 18 U.S.C. § 3572(a)(2). The district court
also must take into account “whether restitution is ordered or made and the amount of
such restitution.” Id. § 3572(a)(4). As to the latter point, “the court shall impose a fine or
other monetary penalty only to the extent that such fine or penalty will not impair the
ability of the defendant to make restitution.” Id. § 3572(b). These statutory requirements
are mirrored in the Guidelines themselves. See U.S.S.G. § 5E1.2(d)(3)-(4) (“In
determining the amount of the fine, the court shall consider . . . the burden that the fine
places on the defendant and his dependents relative to alternative punishments [and] any
restitution or reparation that the defendant has made or is obligated to make . . . .”). The
district court uttered not a word about the factors emphasized above.
We review a sentence for substantive reasonableness under an abuse-of-discretion
standard. See Sayad, 589 F.3d at 1116. A district court abuses its discretion when it
imposes a sentence that is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. Muñoz–Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quotation omitted).
Having considered the totality of the circumstances in this case, I am left with the firm
impression that the district court exceeded the bounds of reasonableness by imposing an
arbitrary fine on Mr. Griggs without fairly considering the fine’s consequences.
Despite having an obligation to do so, the district court did not consider the burden
that a heavy fine would place on Mr. Griggs’s wife and daughter. It likewise neglected to
take into account whether such a formidable fine would also impair Mr. Griggs’s ability
to make restitution, which had been ordered in the amount of $477,643.49. The
government admits the district court procedurally erred in both respects. See Appellee’s
Consolidated Answer Br. at 45-46. The district court also calculated Mr. Griggs’s fine
while working under the mistaken belief (courtesy, it appears, of an incorrect figure given
by the probation office in the presentence investigation report) that the high end of his
Guidelines fine range was $3,500,000, rather than $125,000. The much higher
-2-
$3,500,000 figure represents the statutory maximum fine for Mr. Griggs’s offense, not
the actual Guidelines fine relevant to his case.
It is evident that the district court was not advised until the very moment of
sentencing that the $500,000 fine varied significantly upward from the upper range of the
Guidelines. Yet, when presented with this information at Mr. Griggs’s sentencing
hearing, the district court still stubbornly adhered to the $500,000 amount, deciding on
the fly that Mr. Griggs’s fine would now be a variant one. This was done without
discussing the burden that the highly variant fine would put on Mr. Griggs’s family or
how that fine would affect his no-less-substantial responsibility to pay restitution. None
of this inspires confidence in the majority’s conclusion that the $500,000 fine was, on
balance, a reasonable one.
The district court’s significant procedural errors—admitted by the government—
cannot help but bleed into the question whether the fine, viewed in its totality, was
substantively reasonable. I believe the district court’s lack of awareness of the
Guidelines range (and lack of willingness to revisit its position once being made aware of
the correct Guidelines range at the sentencing hearing) made it inevitable that the amount
of the fine imposed would be colored by arbitrariness. And such arbitrariness is, by its
very nature, unreasonable.
When fashioning a sentence for someone judged guilty of a crime, a court must
consider how that sentence will “promote respect for the law, and . . . provide just
punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). An arbitrary sentence furthers
neither of these goals. In light of the district court’s initial miscalculation of the fine
-3-
under the Guidelines, its failure to revisit the amount of the fine after being informed of
the correct sentencing range, and the fact that it did not consider the assuredly significant
impact of a sizeable fine on Mr. Griggs’s wife and daughter or on his obligation to pay
restitution, I am convinced the $500,000 fine imposed on Mr. Griggs was manifestly
unreasonable due to its arbitrariness and thus should not be allowed to stand. Although I
am “well aware that the district court is in a ‘superior position to find facts and judge
their import under § 3553(a),’” United States v. Friedman, 554 F.3d 1301, 1310 (10th
Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)), I believe this is
precisely a case where highly pertinent facts were not found, much less carefully
weighed, by the district court, resulting in the imposition of an arbitrary, unreasonable,
and likely excessive fine.
True, the district court still might have come up with the $500,000 amount even if
it had been correctly advised of the Guidelines range in the first place, even if it had
considered the burden of the fine on Mr. Griggs’s wife and daughter, even if it had taken
into account the interplay of the fine with the restitution amount, and even if it had paused
for even a few minutes at Mr. Griggs’s sentencing hearing to process the fact that it had
just been informed it had calculated a fine using a Guidelines range that was wildly off-
base. And, to be sure, the district court’s finding that Mr. Griggs had concealed assets
must also be given its due weight. But with so much guesswork already required, I
decline to speculate about whether the district court, in effect, arrived at the right
destination with the wrong roadmap. I would avoid further conjecture and post hoc
rationalization by vacating Mr. Griggs’s fine and remanding the matter for a new
-4-
sentencing hearing—the only thing, at this point, that can provide the necessary assurance
that Mr. Griggs’s fine has not been arbitrarily imposed.
Although in all other respects fully concurring in today’s opinion, I respectfully
dissent from the majority’s affirmance of the $500,000 fine imposed on Mr. Griggs by
the district court.
-5-