Wednesday, April 30, 2014

Sufficient Evidence Supported Subcontractors' Mail Fraud Convictions

U.S. v. Sharp, -- F.3d --, 2014 WL 1663104 (4/28/14)(CO) - Convictions for mail fraud and conspiracy to commit mail fraud affirmed. There was sufficient evidence to support the convictions. Invoices falsely suggested that the subcontractor was being charged a higher price than was actually the case and the existence of lower, actual-priced invoices was concealed from insurers. There was sufficient evidence that the alleged omissions or misstatements in the cost estimates were "material." The district court properly refused to instruct the jury that Mr. Sharp could be convicted of mail fraud on the basis of an omission only if he had a duty to disclose the withheld fact. None of the counts were based on pure "omissions." The instructions required the jury to find the existence of a misrepresentation or pretense. An Allen instruction was appropriate. All jurors, not just those in favor of acquittal, were urged to reconsider their views. The jury did not subsequently convict on all of the counts at issue. The district court's failure to reiterate the fact that the burden of proof was on the gov't was not per se prejudicial.

There was also sufficient evidence to support the mail fraud convictions of defendant Griggs. There was no merit to his due process arguments that he lacked sufficient notice of illegal conduct under the mail fraud statute. Mr. Griggs's argument that a $500,000 fine imposed by the district court was procedurally unreasonable was unpreserved and subject to review only under the plain error standard. The district court considered the proper guideline fine range and explained its reasons for imposing a fine above that range. The district court found that Mr. Griggs prevented the probation office from discovering substantial assets and that both a hefty fine and restitution were warranted. The amount of the fine imposed was substantively reasonable.

The now-deceased Judge Holloway concurred in affirming the convictions, but dissented re: the substantive reasonableness of the fine imposed on Mr. Griggs because the district court failed to consider the heavy burden that the fine would place on Mr. Griggs's wife and daughter.