507 F.3d 1273 (11th Cir. 2007), 06-11212, United States v. Mintmire

Docket Nº:06-11212
Citation:507 F.3d 1273
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Donald Frank MINTMIRE, Defendant-Appellant.
Case Date:November 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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507 F.3d 1273 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,

v.

Donald Frank MINTMIRE, Defendant-Appellant.

No. 06-11212

United States Court of Appeals, Eleventh Circuit

November 13, 2007

Appeal from the United States District Court for the Southern District of Florida D. C. Docket No. 04-14020-CR-DLG

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Harold Schimkat, Anne R. Schultz, Asst. U.S. Atty., Evelio J. Yera, Miami, FL, for U.S.

Before DUBINA and MARCUS, Circuit Judges, and PROCTOR, [*] District Judge.

PROCTOR, District Judge:

Donald Frank Mintmire ("Mintmire"), a licensed attorney, appeals his conviction on Counts One and Three of a third superseding indictment returned against him. With respect to Count One, Mintmire was convicted of violating 18 U.S.C. § 1512(c)(2) by attempting to obstruct a grand jury investigation in Florida related to the sale of stock in Clements Golden Phoenix Enterprises, Inc. ("Clements"). As to that count, the Government presented evidence that Mintmire had participated in several recorded conversations with Kevin Bell, an unknowing shareholder, officer, and director of Clements who had been subpoenaed to testify before a federal grand jury on matters involving his knowledge of Clements. With respect to Count Three, Mintmire was convicted under 18 U.S.C. § 371 and 18 U.S.C. § 1505 of conspiring to obstruct a Securities and Exchange Commission ("SEC") investigation concerning cMeRun, an internet start-up company, the predecessor of which Mintmire had organized. As to that count, the Government presented evidence that Mintmire had conspired with Keith Logue, his former law firm partner, to encourage

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Mary Catherine McGowan, another unknowing shareholder, to withhold documents in response to an SEC subpoena in the investigation of cMeRun. After thorough review, we affirm Mintmire's convictions.

I. BACKGROUND

A. Procedural History.

In May 2004, after a search of Mintmire's law office in Florida, the Government unsealed a one-count indictment charging him with a violation of 18 U.S.C. § 1512(c)(2)1 for attempted obstruction of a federal grand jury investigation into the sale of corporate stock of Clements, a corporation that Mintmire had represented. The indictment alleged that from August to September 2003, Mintmire attempted to dissuade grand jury witness Kevin Bell ("Bell") - and also encouraged Bell to dissuade others - from disclosing facts concerning the formation of Clements through the merger of Lucid Concepts, Inc. ("Lucid") and Clements Citrus Sales of Florida, Inc. ("Citrus").

On August 5, 2004, the Government filed a superseding indictment, adding a second count against Mintmire charging him with violating18 U.S.C. § 15052 by obstructing a 2002 Boston SEC proceeding related to cMeRun, Inc., a company formed from another company that Mintmire had represented, Fundae Corp. ("Fundae"). Specifically, the new count charged Mintmire with attempting to conceal his control of the companies' shares by failing to produce subpoenaed documents to the SEC and by falsely testifying in his deposition regarding common shareholders of the two companies and Mintmire's alleged loans to those shareholders.

Thereafter, Mintmire moved to dismiss Count Two on the ground that the Southern District of Florida was not the proper venue to prosecute him for obstruction of the Boston-based SEC proceeding. In an apparent response to the venue issue, the Government amended Count Two to allege a violation of 18 U.S.C. § 1512(c)(2), instead of § 1505, which allowed it to take advantage of the venue provision contained in 15 U.S.C. § 1512(i).3 The Government further modified Count Two to allege that Mintmire had paid attorneys representing persons subpoenaed by the SEC while withholding documents from those attorneys and their clients and Count One to allege that Mintmire attempted to dissuade Bell from disclosing that shareholders in Lucid (prior to the merger) and Clements (after the merger) were nominee shareholders.4

After Mintmire renewed and amended his motion to dismiss Count Two for lack

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of venue, the district court referred the venue issue to Magistrate Judge Frank J. Lynch, who recommended that Mintmire's venue motion be denied. Mintmire also moved to dismiss Count Two and asserted that it violated the Ex Post Facto clause of the U.S. Constitution because § 1515(c)(2) did not become effective until after Mintmire produced documents and was deposed in the SEC proceeding.

On December 9, 2004, the Government added a third count charging Mintmire with violating 18 U.S.C. § 3715 and § 1505 by conspiring to obstruct the SEC proceeding in order to hide the fact that Fundae shareholders were really nominees who had given control of their stock to Mintmire. According to the Government, Mintmire committed the following overt acts in furtherance of the conspiracy in September and October 2002 in the Southern District of Florida: (1) Mintmire contacted, agreed to pay, and paid Keith Logue ("Logue"), an attorney in Atlanta, Georgia, to make unsolicited contact with persons subpoenaed by the SEC; (2) Mintmire falsely informed SEC counsel that he had provided all relevant subpoenaed documents while failing to provide documents in his possession to a nominee shareholder; and (3) Mintmire misrepresented to the SEC his relationship with the nominee shareholders, the common shareholders of Fundae and Clements, and investment loans made to shareholders.

Mintmire then moved to dismiss both Counts Two and Three as motivated by "prosecutorial vindictiveness" in an attempt to punish Mintmire for the exercise of his constitutional and statutory rights and alternatively, to sever Counts Two and Three from Count One on the basis that the Government sought to take advantage of prejudicial spillover by trying all three counts together.

All three counts were tried in the district court from January 31 until February 8, 2005. After the close of evidence, the district court dismissed Count Two as violative of the Ex Post Facto clause. However, the court denied Mintmire's motion for a judgment of acquittal on Count One, and it permitted Count Three to go forward on the theory that Mintmire had conspired with Logue to obstruct the SEC proceeding.6

During the charge conference, Mintmire requested that the court instruct the jury that the Government had the burden to prove beyond a reasonable doubt that "[t]he Defendant was not providing lawful, bona fide, legal representation in connection with or anticipation of an official proceeding," while the Government requested that the jury be instructed that it must first find that Mintmire was acting as a lawyer before any burden shifted onto the Government. The district court expressed uncertainty as to whether the issue was a factual question for the jury or a legal

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question for the court. However, the court ultimately decided, and instructed the jury accordingly, that the jury had to first find that Mintmire (and Logue as to Count Three) was acting as a lawyer and, upon that showing, the Government was required to prove beyond a reasonable doubt that Mintmire (and Logue as to Count Three) was not providingbona fide legal services:

The law provides a complete defense commonly referred to as an affirmative defense to the offenses charged in Counts 1 and 3 of the indictment because one who is performing bona fide legal representation services does not have an improper purpose. His purpose to zealously represent his client is fully protected by the law.

If you find that the defendant provided legal representation services, in connection with the charged conduct in Counts 1 or 3, and the defendant was providing lawful, bona fide legal representation services in connection with or in anticipation of an official proceeding, that is, a grand jury or SEC investigation, then you must find the defendant not guilty. In order to find the defendant guilty, the government must prove all of the elements beyond a reasonable doubt as I originally read to you as to Counts 1 and 3. If you find the defendant provided legal representation services, in connection with the charged conduct in Counts 1 or 3, the government must also prove beyond a reasonable doubt that the defendant was not providing lawful, bona fide legal representation services in connection with or anticipation of an official proceeding.

Keith Logue is named as a coconspirator in Count 3. If you find that Keith Logue provided legal representation services in connection with the charged conduct in Count 3, and Keith Logue was providing lawful, bona fide legal representation services in connection with or in anticipation of an official proceeding, then you must find the defendant not guilty. In order to find the defendant guilty, the government must prove all of the elements beyond a reasonable doubt as I originally read as to Counts 1 and 3. If you find that Keith Logue provided legal representation services, in connection

With the charged conduct in Count 3, the government must also prove beyond a reasonable doubt that Keith Logue was not providing lawful, bona fide legal representation services in connection with or in anticipation of an official proceeding.

The jury returned guilty verdicts on both remaining Counts One and Three. Although Mintmire renewed his motion for judgment of acquittal as to those counts and moved for a new trial, those motions were denied. Mintmire was sentenced to concurrent terms of imprisonment of twenty-one months, two-year terms of supervised release, a fine of $80,000, and the prohibition of "engag[ing] in any business that offers securities, investments, or business opportunities to the public." This appeal followed.7

B. Evidence Presented by the Government at...

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