United States v. Bunn

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4485
KERMIT W. BUNN,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4583
CHARLES CARLTON STRIBLIN,
Defendant-Appellant.

Appeals from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-99-9)
Argued: October 30, 2001
Decided: December 10, 2001
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Alan Gordon McGonigal, BAILEY, RILEY, BUCH &
HARMAN, L.C., Wheeling, West Virginia, for Appellant Striblin;
2 UNITED STATES v. BUNN
James Leonard Baum, LAW OFFICE OF JAMES L. BAUM, Patas-
kala, Ohio, for Appellant Bunn. Kirby Ann Heller, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Patrick M. Flatley, United States Attorney, Richard Poole,
Senior Litigation Counsel, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Kermit Wayne Bunn and Charles Carlton Striblin (collectively,
"Appellants") appeal their convictions and sentences on multiple
charges stemming from their involvement in various federally funded
highway construction projects. Finding no error, we affirm.
I.
Pursuant to regulations adopted by the Department of Transporta-
tion at the direction of Congress, a state that receives federal funds for
highway construction projects must set an annual goal for participa-
tion in such projects by disadvantaged business enterprises ("DBEs").
Prime contractors, in turn, must ensure that the subcontracts awarded
in connection with a highway construction project meet the DBE par-
ticipation goal for that project. A DBE is a for-profit small business
that is at least 51 percent owned by one or more socially and econom-
ically disadvantaged individuals, and whose management and daily
business operations are controlled by at least one of those individuals.
A DBE must be certified by the state in which it operates. In order
to satisfy DBE participation goals, a DBE that is awarded a subcon-
tract on a project must perform a commercially useful function—that
is, the DBE itself must perform, manage and supervise the subcon-
tract work and must order and pay for the materials used. A contractor
UNITED STATES v. BUNN 3
will not receive credit for DBE participation if the relationship
between the contractor and the DBE "erodes the ownership, control,
or independence of the DBE." J.A. 158.
Bunn was the president of Bunn Construction, which did subcon-
tract work on highway construction projects. Bunn Construction was
not a DBE. Stated briefly, the evidence presented at trial demon-
strated that between 1991 and 1996, Bunn recruited DBEs to serve as
"fronts" on bids for five highway construction projects sponsored by
the West Virginia Department of Highways (WVDOH) and partially
funded by the federal government. Although the DBE was the sub-
contractor of record, the work was actually performed by Bunn Con-
struction. Striblin, who owned a DBE, allowed Bunn to use his
company as a front on several of the projects.
Based on the fraudulent scheme, Appellants were convicted of con-
spiracy to commit mail and wire fraud, see 18 U.S.C.A. § 371 (West
2000), and two counts of wire fraud, see 18 U.S.C.A. § 1343 (West
2000). Additionally, based on acts committed in connection with the
grand jury investigation of Appellants’ activities and the trial of a
coconspirator, Bunn was convicted of three counts of obstruction of
justice, see 18 U.S.C.A. § 1503 (West 2000), and three counts of per-
jury, see 18 U.S.C.A. § 1623 (West 2000). Striblin was convicted of
two counts of obstruction of justice and one count of perjury.
II.
A.
Appellants jointly argue that the evidence was insufficient to sup-
port their convictions for wire fraud.1 In reviewing the sufficiency of
the evidence, our role is limited to determining whether "there is sub-
stantial evidence, taking the view most favorable to the Government,
to support" the verdict. Glasser v. United States, 315 U.S. 60, 80
(1942). Reversal for insufficient evidence is reserved for cases in
which "the prosecution’s failure is clear." Burks v. United States, 437
U.S. 1, 17 (1978).
1
Although Appellants do not explicitly say so, we presume this argu-
ment also applies to their conspiracy convictions.
4 UNITED STATES v. BUNN
As is relevant here, the wire fraud statute prohibits the transmission
of wire communications for the purpose of executing a scheme to
defraud or to obtain money or property by false pretenses. See 18
U.S.C.A. § 1343. Thus, the Government was required to prove "(1)
the existence of a scheme to defraud, (2) use of wire communications
in furtherance of the scheme, and (3) that the scheme was intended
to deprive a victim of money [or] property." United States v. Merk-
linger, 16 F.3d 670, 678 (6th Cir. 1994). Appellants dispute the suffi-
ciency of the Government’s proof on the third element, maintaining
that the Government failed to prove that they deprived any identifi-
able victim of any property right.
Appellants’ argument proceeds along the following lines. First,
Appellants note that the wire fraud statute is "limited to ‘protecting
property rights.’" United States v. Adler, 186 F.3d 574, 576 (4th Cir.
1999) (quoting McNally v. United States, 483 U.S. 350, 357 (1987)).
From this premise, they conclude that in order to sustain a conviction,
the evidence must establish that they caused a loss to an identifiable
victim. Appellants assert that because the WVDOH obtained the ben-
efit of its bargain—i.e., the subcontract work was performed
satisfactorily—the WVDOH suffered no loss other than a deprivation
of the "aspirational goal" of attaining a certain level of DBE participa-
tion. Br. of Appellants at 16. Appellants further contend that because
this goal is not a property right, the Government failed to establish the
necessary elements of wire fraud.
In making this argument, Appellants refuse to acknowledge that the
property interest at stake is not the goal of DBE participation, but
rather the actual dollars used for the highway construction. Moreover,
Appellants cannot assert that their convictions are improper on the
basis that the subcontract work was actually performed to the satisfac-
tion of the WVDOH, and thus that the WVDOH suffered no financial
loss. Financial loss is not an essential element of wire fraud. See
Adler, 186 F.3d at 576. The gravamen of the offense is not, as Appel-
lants contend, financial loss to the victim; it is, rather, the "intent to
obtain money or property from the victim of the deceit." United States
v. Utz, 886 F.2d 1148, 1151 (9th Cir. 1989) (per curiam) (internal
quotation marks omitted); see United States v. Dinome, 86 F.3d 277,
283-85 (2d Cir. 1996) (upholding wire fraud convictions based on
supplying false information in connection with mortgage loan; even
UNITED STATES v. BUNN 5
though lender suffered no loss, loan would not have been made if
accurate information had been supplied). The Government’s evidence
established that Appellants obtained money to which they were other-
wise not entitled by falsely representing that subcontract work would
be performed by DBEs. Nothing more is required.
B.
Next, Appellants argue that even if they were properly convicted
of wire fraud, the district court erred in determining the amount of
loss attributable to them for sentencing purposes. Appellants were
sentenced pursuant to United States Sentencing Guidelines Manual
§ 2F1.1 (1998). Section 2F1.1 establishes a base offense level of six
and provides for an enhancement of up to 18 levels depending upon
the amount of loss caused by the defendant’s fraudulent conduct. See
U.S.S.G. § 2F1.1(a), (b)(1). In applying the loss table to Appellants,
the district court determined that the amount of loss was the amount
the WVDOH had intended to pay to a legitimate DBE for each of the
highway construction projects. See id. § 2F1.1, comment. (n.8(d)) ("In
a case involving diversion of government program benefits, loss is the
value of the benefits diverted from intended recipients or uses.").
Appellants argue that because the WVDOH received the benefit of its
bargain, it suffered no loss, and hence the enhancement was inappro-
priate.
This court rejected an almost identical argument in a companion
case to this one, United States v. Brothers Construction Co. of Ohio,
219 F.3d 300 (4th Cir.), cert. denied, 531 U.S. 1037 (2000). The
appellants in Brothers Construction argued that no loss was attribut-
able to their fraudulent conduct because (1) the DBE credit was ulti-
mately satisfied, and (2) the work was actually performed to the
satisfaction of the WVDOH. See id. at 317-18. We disagreed, con-
cluding that "there was certainly loss as contemplated by the guide-
lines" because the funds "earmarked for DBE project participation by
Brothers . . . were not put to the intended use." Id. at 318. Brothers
Construction is controlling. Here, as in that case, funds earmarked by
the WVDOH for DBE participation were diverted from their intended
6 UNITED STATES v. BUNN
use. Accordingly, the amount of those funds was the appropriate mea-
sure of the loss.2
III.
For his own part, Bunn challenges the sufficiency of the evidence
supporting his obstruction of justice and perjury convictions. He also
contends that the Government knowingly presented perjured testi-
mony at trial. We conclude that none of these challenges has merit.
A.
Two of Bunn’s obstruction of justice convictions rested on his tes-
timony to the grand jury that was investigating the activities of Bunn
Construction. In order to convict Bunn, the Government was required
to produce evidence sufficient to convince the jury that (1) there was
a pending grand jury proceeding; (2) Bunn was aware of the proceed-
ing; and (3) Bunn "acted corruptly, that is with the intent to influence,
obstruct, or impede that proceeding in its due administration of jus-
tice." United States v. Grubb, 11 F.3d 426, 437 (4th Cir. 1993); see
also United States v. Russo, 104 F.3d 431, 435-36 (D.C. Cir. 1997)
(holding that defendant may be convicted of obstruction of justice
upon proof that defendant lied to grand jury with intent to impede its
investigation).
Bunn argues that the Government did not present sufficient evi-
dence that he intended to impede the investigation of the grand jury.
He maintains that he testified honestly to the facts as he recalled them
and that his admitted lapses of memory did not demonstrate any intent
to impede the administration of justice. Upon reviewing the record,
we conclude that the evidence was sufficient for a rational trier of fact
to conclude that Bunn testified falsely and that he did so with the
intent to impede the investigation by the grand jury.
2
Appellants further argue that, assuming a loss existed, the loss should
have been measured by their profit on the subcontracts rather than by the
amount intended by the WVDOH for DBE participation. The commen-
tary to § 2F1.1 makes plain that this contention is without merit. See
U.S.S.G. § 2F1.1, comment. (n.8(d)).
UNITED STATES v. BUNN 7
Bunn’s third obstruction of justice conviction was based on his
actions toward Special Agent Richard Regan of the Department of
Transportation. During the course of the investigation, Agent Regan
arrived at Bunn’s home with local law enforcement officers to serve
a subpoena on Bunn’s son. Bunn met the agents outside, cursed at
them, and stated that they "would be underground." J.A. 1786. When
asked if he was making a threat, Bunn replied, "No, that is a promise."
Id. at 1787. Bunn’s only challenge to this conviction is that Agent
Regan was not acting in the course of his duties at the time, and thus
that Bunn could not have obstructed Agent Regan’s performance of
those duties. We conclude that the evidence was sufficient for a ratio-
nal trier of fact to conclude that Agent Regan was acting in the course
of his duties; accordingly, we affirm this conviction.
B.
Bunn was also convicted of three counts of perjury. See 18
U.S.C.A. § 1623. Bunn challenges two of these convictions, maintain-
ing that the Government failed to prove that the testimony in question
was false. See United States v. Sarihifard, 155 F.3d 301, 306 (4th Cir.
1998) (setting forth elements of § 1623 offense). The first of the chal-
lenged convictions was based on Bunn’s testimony in a related trial
regarding equipment purportedly leased to a DBE; the second rested
on Bunn’s testimony before the grand jury regarding his ownership
interest in Striblin’s company. We conclude that the evidence in the
record was sufficient for a rational jury to conclude that both items
of testimony were false. We therefore affirm the perjury convictions.
C.
Finally, Bunn contends that the Government violated his due pro-
cess rights by presenting perjured testimony during trial. We disagree.3
A conviction acquired through the knowing use of perjured testi-
mony by the prosecution violates due process. See Napue v. Illinois,
360 U.S. 264, 269 (1959). This is true regardless of whether the pros-
ecution solicited testimony it knew to be false or simply allowed such
3
Because Bunn’s claim is without merit, we do not address the Gov-
ernment’s contention that the claim should be reviewed for plain error.
8 UNITED STATES v. BUNN
testimony to pass uncorrected. See id. The knowing use of perjured
testimony constitutes a due process violation when "there is any rea-
sonable likelihood that the false testimony could have affected the
judgment of the jury." Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995)
(internal quotation marks omitted).
Bunn first argues that Agent Regan perjured himself during his tes-
timony on direct examination. In support of this contention, Bunn
points to inconsistencies between Regan’s testimony on direct and
cross-examination. Mere inconsistencies, however, do not constitute
a due process violation. See United States v. Griley, 814 F.2d 967,
971 (4th Cir. 1987). Moreover, given that the inconsistencies in Agent
Regan’s testimony were exposed during Bunn’s vigorous cross-
examination, there is no reasonable likelihood that the verdict was
affected.
Bunn also argues that the Government violated his due process
rights by presenting the testimony of Brenda Kay Ware, who testified
regarding the involvement of her company, a DBE, in one of the high-
way construction projects. The Government agrees with Bunn that
certain portions of Ware’s testimony were false. However, Ware’s
testimony actually favored Bunn; indeed, during closing argument the
Government argued that the relevant portion of Ware’s testimony was
false, and Bunn argued that it was true. There is no due process viola-
tion when allegedly false testimony favors the defendant. See United
States v. Thomas, 987 F.2d 1298, 1300 (7th Cir. 1993).
IV.
For the reasons set forth above, we conclude that all of Appellants’
challenges to their convictions and sentences are without merit.
Accordingly, we affirm.
AFFIRMED