579 F.3d 1282 (11th Cir. 2009), 07-11301, United States v. Maxwell

Docket Nº:07-11301.
Citation:579 F.3d 1282
Opinion Judge:MARCUS, Circuit Judge
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dewitt Jackson MAXWELL, a.k.a. Jack, Defendant-Appellant.
Attorney:Janice Burton Sharpstein, Richard A. Sharpstein, Ari H. Gerstin, Jorden & Burt, LLP, Miami, FL, Bruce Rogow, Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Maxwell. Laura Thomas Rivero, Anne R. Schultz, Daniel Bernstein, Edward Norman Stamm, Jeanne Marie Mullenhoff, Dawn Bowen, Miami, FL, for U.S.
Judge Panel:Before BIRCH and MARCUS, Circuit Judges, and FORRESTER,[*] District Judge.
Case Date:August 19, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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579 F.3d 1282 (11th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dewitt Jackson MAXWELL, a.k.a. Jack, Defendant-Appellant.

No. 07-11301.

United States Court of Appeals, Eleventh Circuit.

August 19, 2009

Appeal from the United States District Court for the Southern District of Florida.

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Janice Burton Sharpstein, Richard A. Sharpstein, Ari H. Gerstin, Jorden & Burt, LLP, Miami, FL, Bruce Rogow, Bruce S. Rogow, P.A., Fort Lauderdale, FL, for Maxwell.

Laura Thomas Rivero, Anne R. Schultz, Daniel Bernstein, Edward Norman Stamm, Jeanne Marie Mullenhoff, Dawn Bowen, Miami, FL, for U.S.

Before BIRCH and MARCUS, Circuit Judges, and FORRESTER,[*] District Judge.

MARCUS, Circuit Judge

As a result of his participation in a fraudulent scheme to obtain construction contracts set aside for socially and economically disadvantaged companies at Miami International Airport (" MIA" ), Dewitt Jackson Maxwell was convicted by a jury in the United States District Court for the Southern District of Florida of mail fraud, wire fraud, conspiracy to commit mail and wire fraud, money laundering, and conspiracy to commit money laundering in violation of 18 U.S.C. § § 2, 1341, 1343, 1349, 1956, and 1957. He was subsequently sentenced to a term of imprisonment

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of sixty months followed by twenty-four months of supervised release.

Maxwell appeals both his convictions and the resulting sentence. He argues broadly that his convictions must be overturned on three grounds: (1) his right to cross-examination was wrongfully limited by the district court in violation of the Sixth Amendment; (2) the convictions were not supported by sufficient evidence; and (3) the rejection of his proffered jury instructions on a " good faith" defense amounted to clear error. Maxwell also says that his sentence must be reversed, because the district court clearly erred in calculating the amount of loss enhancement applicable to his sentence under § 2B1.1 of the Sentencing Guidelines. After thorough review, we affirm the convictions and the sentence.

I.

Maxwell was indicted by a grand jury in the Southern District of Florida on twenty-four counts of mail and wire fraud, money laundering, and related conspiracies,1 arising out of his involvement with six electrical subcontracts at MIA while he was Vice President, and the executive in charge, of Fisk Electrical Corporation's South Florida office (" Fisk" ).

A. The Trial

The essential facts taken in a light most favorable to the jury's verdict are these. Of the six MIA contracts involved in this case, five were funded by Miami-Dade County (the " County" ) and required compliance with the County's Community Small Business Enterprise (" CSBE" ) program.2 This program sets aside a certain percentage of the County's construction work to be performed by qualifying small, local businesses. The sixth MIA contract was federally funded and required compliance with the Disadvantaged Business Enterprises (" DBE" ) program.3 To obtain and maintain a contract under these programs, a CSBE or DBE must perform a commercially useful function in the completion of the contract. A commercially useful function occurs when the CSBE or DBE actually performs, manages, and supervises the work involved. County Ordinance 97-52; 49 C.F.R. § 26.55(c)(1). " A DBE does not perform a commercially useful function if its role is limited to that of an extra participant in a transaction, contract, or project through which funds

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are passed in order to obtain the appearance of DBE participation." 49 C.F.R. § 26.55(c)(2).

Because Fisk is a large Texas-based electrical contracting corporation with offices nationwide, it is not eligible for CSBE or DBE contracts. However, the superseding indictment alleged that Fisk, through the conduct of Maxwell and his co-conspirators, obtained funds set aside for CSBE and DBE electrical contractors by representing to the County and the United States that a CSBE or DBE was completing the work and receiving the payments on the CSBE or DBE contract when, in fact, Fisk was doing the work and the CSBE or DBE was passing the payments on to Fisk.

Of the six MIA contracts, three involved the North Terminal (Contracts 737A, 737G, and 739F), two involved the South Terminal (Contracts B313A and B315A), and one involved the improvement of airport-wide security (Contract F034F). The five contracts involving the North and South Terminals were funded by the County and required compliance with the CSBE program. The sixth contract was federally financed, thus requiring compliance with the DBE program. To be eligible for the non-CSBE or non-DBE portion of several of these electrical contracts, Fisk had to submit, as part of its bid package, a " Letter of Intent" and " Schedule of Participation" identifying the CSBE or DBE subcontractor and specifying the percentage of the job that subcontractor would perform. Once the bid is awarded, compliance with the CSBE program is monitored through the submission of Monthly Utilization Reports (" MURs" ) 4 that certify the type and quantity of work being performed by the CSBE. The County also performs random audits of the CSBEs to ensure they are performing a commercially useful function. Similarly, the Miami-Dade Aviation Department's Office of Minority Affairs monitors all federally-funded contracts to ensure compliance with the DBE program.

At trial, the Government presented evidence that, through Maxwell's efforts, Fisk was able to obtain contracts at MIA and the funds generated by them, based on a series of false claims that a qualified CSBE or DBE was performing a commercially useful function, when, in truth and in fact, the CSBE or DBE would do little or no work on the contracts. Instead, Fisk would complete the CSBE or DBE portion of the contract, and the CSBE or DBE would turn over its payments from the County or the United States to Fisk.

Maxwell's co-conspirators in this scheme were Norman " Pat" Clyne and Hector Paultre. Clyne was the operations manager at Fisk, having had previously worked for Maxwell at another electrical contractor in Miami. He became employed at Fisk when Maxwell opened the firm's office in January 1998 and Maxwell was his direct supervisor. Clyne described Maxwell as a " micro manager" who wanted to know everything that happened in the office, received copies of all correspondence, regularly visited job sites, and had weekly meetings with project managers.

Paultre was a former Fisk purchasing agent and material expediter who was introduced to Clyne by Maxwell in 1998 as the owner of FLP Enterprises (" FLP" ). Maxwell told Clyne that certified CSBE and DBE electrical contractor FLP " was going to be our small business and disadvantaged partner as [Fisk] started to bid

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for future work." All licensed electrical contractors are required to designate a " qualifier" who holds the license, signs the permits, and is responsible for the work and the financial status of the company. Because Paultre was not a licensed electrician, FLP's qualifier was always a Fisk employee. Eventually, Maxwell tapped Michael Malone, his relation by marriage, to be FLP's qualifier and Paultre's business partner.

Maxwell and his co-conspirators fraudulently induced the award of the six MIA contracts to Fisk and FLP by falsely representing in their bids that FLP would perform a commercially useful function on those contracts as the required CSBE or DBE. When Clyne prepared Fisk's bids for these contracts, he included a percentage of the work that would be performed by FLP, but he never conferred with FLP about the scope or cost of the job. Clyne was able to do this because Paultre, on behalf of FLP, had pre-signed blank Letters of Intent for Fisk employees to fill out as needed to complete the bids.

Maxwell, Clyne, and Paultre agreed that Fisk would pay FLP a fee equal to either three or five percent of the value of the CSBE or DBE portion of the contract; the rest of the payments made under the CSBE or DBE portion of the contract would be passed on to Fisk. Later, when Maxwell learned that Paultre had complained that FLP was not making any money on the MIA contracts, he told his project manager " to tell that son of a bitch that he was getting his five percent and just do what he was told." Once these contracts were awarded, Maxwell and his co-conspirators created the illusion that FLP was performing a commercially useful function when, in fact, Fisk performed virtually all of the work on the contracts. They also took measures to conceal this fraud from County auditors.

Contract 737A, in particular, called for the relocation of underground utilities in the North Terminal. The primary contractor was Central Florida Equipment Rental of Dade County (" Central Florida" ), which, in turn, hired subcontractors to comply with the CSBE program. When the initial CSBE electrical subcontractor left the job, FLP was awarded the job after submitting to the County a Letter of Intent certifying that it would perform the CSBE-designated work on the contract. However, at Maxwell's direction, Fisk performed the CSBE work on Contract 737A. Specifically, Maxwell directed Clyne to open a job number within Fisk's accounting system for the contract and to obtain the permit. Fisk purchased all of the materials and supplied all of the labor, which was supervised by a Fisk foreperson. Neither Paultre nor Malone were involved in supervising or managing the project. When the job was completed, Central Florida paid FLP with a $90,000 check; Paultre, in turn, endorsed...

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