U.S. v. Poirier

• Decision Date: 13 February 2003
• Docket Number: No. 01-15989.,01-15989.
• Citation: 321 F.3d 1024
• Parties: UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Richard POIRIER, Jr., Michael deVegter, Defendants-Appellants Cross-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

321 F.3d 1024

UNITED STATES of America, Plaintiff-Appellee Cross-Appellant, v. Richard POIRIER, Jr., Michael deVegter, Defendants-Appellants Cross-Appellees.

No. 01-15989.

United States Court of Appeals, Eleventh Circuit.

February 13, 2003.

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Craig A. Gillen, Gillen, Dailey, Cromwell, Withers & Brantley, LLC, David G. Russell, Parker, Hudson, Rainer & Dobbs, LLP, Atlanta, GA, B.J. Rothbaum, Hartzog, Conger, Cason & Neville, Oklahoma City, OK, for Defendants-Appellants Cross-Appellees.

Randy S. Chartash, Russell G. Vineyard, Amy Levin Weil, Atlanta, GA, for Plaintiff-Appellee Cross-Appellant.

Appeals from the United States District Court for the Northern District of Georgia.

Before ANDERSON and CARNES, Circuit Judges, and POLLAK^*, District Judge.

CARNES, Circuit Judge:

Defendants Michael deVegter and Richard Poirier, Jr. were convicted of wire fraud and conspiracy as a result of evidence that they participated in a scheme to defraud Fulton County, Georgia. In this appeal they challenge the sufficiency of the indictment, the sufficiency of the evidence against them, and the correctness of the jury instructions. Their arguments primarily center around their contention that Fulton County was not actually defrauded of "money and property," and for that reason their wire fraud convictions and the conspiracy convictions based upon the same prosecutorial theory cannot stand. DeVegter also challenges his sentence, arguing that the district court should not have applied the enhancement for abusing a position of trust. For reasons we will explain, we find no merit in the defendants' contentions.

The government, on the other hand, cross-appeals the sentences given both defendants on a variety of grounds, and its contentions do have merit.

I. BACKGROUND

Defendants deVegter and Poirier were indicted for their roles in corrupting the process by which Fulton County selected an underwriter for a bond refunding project. Fulton County hired deVegter to serve as its independent financial advisor as it solicited and evaluated proposals from competing underwriters. Poirier was a partner with Lazard Freres & Co. (the Lazard firm), which eventually was awarded the underwriting contract. In exchange for deVegter's covert assistance in ensuring that the Lazard firm's proposal was selected, Poirier through an intermediary paid deVegter over $40,000.00. A grand jury subsequently indicted both deVegter and Poirier, charging them with three offenses: conspiracy to commit wire fraud in violation of 18 U.S.C. § 371; money-and-property wire fraud in violation of 18 U.S.C. § 1343; and honest-services wire fraud in violation of 18 U.S.C. § 1346.¹

The jury returned a verdict finding both defendants guilty of conspiracy and of § 1343 wire fraud. It did not reach a verdict on the § 1346 honest services charge.

II. DISCUSSION

A. THE CONVICTIONS ISSUES

1. The Sufficiency of the Indictment

Defendants contend that the indictment was insufficient to support a conviction for § 1343 wire fraud, an issue we review de novo. United States v. Pendergraft, 297 F.3d 1198, 1204 (11th Cir.2002). "Generally, an indictment is sufficient if it: 1) sets forth the elements of the offense in a manner which fairly informs the defendant of the charge against which he must defend and 2) enables him to enter a plea which will bar future prosecution for the same offense." Belt v. United States, 868 F.2d 1208, 1211 (11th Cir.1989) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974)). "A grand jury indictment must set forth each essential element of an offense in order for a resulting conviction to stand." United States v. Italiano, 837 F.2d 1480, 1482 (11th Cir.1988) (quoting United States v. Outler, 659 F.2d 1306, 1310 (5th Cir. Unit B Oct. 1981) overruled on other grounds by United States v. Steele, 147 F.3d 1316, 1320 (11th Cir.1998) (en banc)). The elements of a § 1343 wire fraud violation are: (1) intentional participation in a scheme to defraud; and (2) use of wire communications to further that scheme. United States v. Brown, 40 F.3d 1218, 1221 (11th Cir.1994).

The defendants argue that the indictment was insufficient because it failed to specify the money or property Fulton County was deprived of. The indictment alleged that defendants "did knowingly and willfully devise and intend to devise a scheme and artifice to defraud Fulton County, Georgia, and its citizens of money and property and the good, faithful and honest services of defendant Michael deVegter." (emphasis added). In addition, the indictment specifically referred to §§ 1343 and 1346, the money and property and the honest services wire fraud provisions, respectively. Other parts of the indictment made it evident that the property involved was certain confidential information.

According to the indictment, deVegter "had a duty not to disclose confidential information received in his capacity as a financial advisor without Fulton County's permission." The indictment specified that while supposedly in the service of Fulton County, deVegter faxed a copy of Fulton County's early draft request for proposal to Poirier, and he later faxed a copy of its nearly-final draft request for proposal to a third party, who in turn faxed it to Poirier. In addition, the indictment alleged that deVegter obtained a copy of the proposal submitted by one of the Lazard firm's competitors, which he faxed to Poirier. The point of the allegations was that deVegter was entrusted with Fulton County documents, which he improperly transferred to Poirier in return for money.

Although the indictment did not expressly allege that the documents deVegter obtained and transferred were confidential, "[w]hen analyzing challenges to the sufficiency of an indictment, courts give the indictment a common sense construction, and its validity is to be determined `by practical, not technical, considerations.'" United States v. Gold, 743 F.2d 800, 812 (11th Cir.1984) (quoting United States v. Morano, 697 F.2d 923, 927 (11th Cir.1983)). Common sense tells us that the documents listed in the indictment constituted confidential information. Anyone with a modicum of understanding about bidding processes knows that those kind of documents are confidential. Moreover, the indictment's charge that the conduct violated § 1343 also indicates that they were.

Of course, the government could have avoided this issue altogether by simply saying in the indictment that the documents were confidential, but "the appropriate test ... is not whether the indictment might have been drafted with more clarity, but whether it conforms to minimal constitutional standards." United States v. Varkonyi, 645 F.2d 453, 456 (5th Cir. Unit A May 1981). "Minor deficiencies that do not prejudice the defendant will not prompt this Court to reverse a conviction." United States v. Chilcote, 724 F.2d 1498, 1505 (11th Cir.1984). In other words, we do not punish a party for unnecessarily making us decide an issue by deciding that issue against the party.

Defendants also contend that even apart from the question of the adequacy of the allegations about confidentiality, the indictment was insufficient because the specified documents did not constitute property and therefore could not support a § 1343 wire fraud conviction. In McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), the Supreme Court held that wire and mail fraud statutes protect only property rights, and that the words "to defraud," as used in the statutes, "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." Id. at 358, 107 S.Ct. at 2881 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512 68 L.Ed. 968 (1924)) (internal quotation marks omitted).² With its McNally decision the Court overturned a line of cases that permitted wire fraud convictions based on deprivation of intangible rights like the right to honest services. Id. at 355-56, 107 S.Ct. at 2879.³

Shortly after McNally, the Supreme Court elaborated on the scope of § 1343 in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). In that case the Court affirmed convictions stemming from the fraudulent misappropriation of pre-publication Wall Street Journal articles. Id. at 28, 108 S.Ct. at 321-22. In rejecting the contention that the defendants had not defrauded the Journal of money or property by disclosing and using the information in the stories before publication, the Court explained that "[t]he Journal, as [one of the defendant's] employer, was defrauded of much more than its contractual right to his honest and faithful service." Id. at 25, 108 S.Ct. at 320. Indeed, "the object of the scheme was to take the Journal's confidential business information ... and its intangible nature does not make it any less `property' protected by the mail and wire fraud statutes. McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights." Id., 108 S.Ct. at 320.

In this case Fulton County was involved in a competitive bidding process involving confidential information that, like the information in Carpenter, had commercial value. Fulton County had an interest in keeping its draft requests for proposals confidential until they were issued, and it had an interest in keeping submitted bids confidential until all of them had been received. Otherwise, the bidding process could become corrupted. As the Supreme Court noted, "[c]onfidential business information has long been recognized as property." Id. at 26, 108 S.Ct. at 320. The object of the scheme in this case, like the one in Carpenter, was to take the victim's confidential information by disclosing it early to those who could profit from that disclosure. And "its intangible nature does not make it any less `property.'" Id. at 25, 108 S.Ct. at 320.

The Carpe...