U.S. v. Wilkinson

Decision Date04 January 2010
Docket NumberNo. 09-4018.,09-4018.
Citation590 F.3d 259
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Paul WILKINSON, Defendant-Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Nickolai Gilford Levin, United States Department of Justice, Washington, DC, for Appellant. Gordon Mehler, Law Office of Gordon Mehler, PLLC, New York, New York, for Appellee. ON BRIEF: Scott D. Hammond, Acting Assistant Attorney General; Mark W. Pletcher, John F. Terzaken, Portia R. Brown, John J. Powers, III, United States Department of Justice, Antitrust Division, Washington, D.C., for Appellant. Rebecca Stack Campbell, Law Office of Gordon Mehler, PLLC, New York, New York, for Appellee.

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and NORMAN K. MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Vacated and remanded by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge SHEDD joined. Judge MOON wrote a separate opinion concurring in part and dissenting in part.

OPINION

HAMILTON, Senior Circuit Judge:

In this appeal, the government challenges the probationary sentence of Paul Wilkinson (Wilkinson) in connection with his guilty plea to various fraud charges stemming from his participation in a government procurement fraud scheme involving aviation fuel contracts. The government also challenges the district court's failure to award the Defense Energy Support Center (DESC) $592,922.00 in restitution under the Mandatory Victims Restitution Act of 1996 (the MVRA), 18 U.S.C. §§ 3663A-3664. For reasons that follow, we vacate Wilkinson's sentence and remand with instructions for: (1) resentencing; and (2) reconsideration of the district court's determination that DESC was entitled to no restitution under the MVRA.

I.
A. Charges and Guilty Plea.

On December 5, 2007, a federal grand jury sitting in the District of Maryland indicted Wilkinson on one count of conspiracy to defraud the United States (Count I), 18 U.S.C. § 371, one count of conspiracy to commit wire fraud (Count II), id. § 1349, and one count of conspiracy to steal trade secrets (Count III), id. § 1832(a)(5). Pursuant to a plea agreement (the Plea Agreement), on July 29, 2008, Wilkinson pled guilty to Counts I, II, and III, as charged in the indictment. The Plea Agreement incorporated the allegations contained in the indictment by reference, which allegations Wilkinson "knowingly, voluntarily, and truthfully" admitted as fact. (J.A. 28). The Plea Agreement also specified that the parties would "contest the amount of loss intended or occasioned by [Wilkinson's offense] conduct, and thus leave to the judgment of the Court the appropriate Guidelines enhancement under U.S.S.G. § 2B1.1(b)(1)," (J.A. 30-31), and that the government "w[ould] not argue that the loss results in more than an eighteen-level increase pursuant to U.S.S.G. § 2B1.1(b)(1)(J)." (J.A. 31). Additionally, Wilkinson agreed "to the entry of a restitution order for the full amount of the victims' actual losses pursuant to" the MVRA, "as determined by the Court at sentencing." (J.A. 32).

B. Facts of Wilkinson's Offense Conduct Relevant to the Issues on Appeal.

DESC, a logistics agency of the United States Department of Defense, is responsible for procuring into-plane and posts, camps, and stations (PC & S) aviation fuel supply contracts to service United States military and civilian activities throughout the world. In carrying out this responsibility, DESC conducts a full and open, multi-stage, competitive procurement process with respect to each contract. Competing offerors submit initial bids by a given date, which bids are then reviewed by DESC. Subsequently, competing offerors are permitted to submit best and final bids by a given date. To ensure fairness in the bidding process, competing offerors are not permitted to share initial or best and final bid information.

Wilkinson's convictions in this case stem from his criminal activities with respect to three aviation fuel supply contracts awarded by DESC—two into-plane contracts and one PC & S contract. In general, a single DESC into-plane solicitation will contain line items for numerous airports within a broad geographical area, but offerors are not required to submit an offer with respect to each airport. Rather, each airport may be awarded as a separate contract or, where a single offeror is awarded multiple airports from the same solicitation, a single contract for all such locations is awarded. DESC awards PC & S contracts for delivery of aviation fuel into authorized storage facilities at destinations world wide.

Prior to DESC's issuances of the three bid solicitations involved in this case, Wilkinson and Christopher Cartwright (Cartwright) had co-founded Far East Russia Aircraft Services (FERAS) and Aerocontrol, Ltd. (Aerocontrol). The pair served as managing co-directors of each company, are citizens of the United States, and, at all times relevant to this case, resided in the Czech Republic. For ease of reference, we will treat FERAS and Aerocontrol as a single entity and refer to it as FERAS/Aerocontrol.

Beginning in February 2005, Wilkinson and Cartwright entered into a consultancy agreement (the Consultancy Agreement) with Matthew Bittenbender (Bittenbender), an employee of FERAS/Aerocontrol's direct competitor Avcard, LLC (Avcard), whereby Bittenbender would secretively feed them Avcard's confidential bid information for various into-plane and PC & S aviation fuel solicitations in exchange for money.1 Bittenbender had easy access to such information, because one of his primary job responsibilities for Avcard was to prepare Avcard's bid packages for submission to DESC. The Consultancy Agreement provided that, with respect to every into-plane location that FERAS/Aerocontrol's bid would win through the aid of Bittenbender, Wilkinson would pay Bittenbender a flat fee, plus ten percent commission on the profits. With respect to any PC & S aviation fuel contract that FERAS/Aerocontrol would win through the aid of Bittenbender, the Consultancy Agreement provided that Wilkinson would pay Bittenbender a percentage of the fuel sales.

DESC issued the first bid solicitation at issue in February 2005 (Bid Solicitation One). Bid Solicitation One pertained to into-plane aviation fuel supply with respect to 109 airports throughout Asia and Eastern Europe. After an amendment changed the initial due date, DESC required initial bids to be submitted on April 11, 2005, and required best and final bids with respect to some airports to be submitted on or around the first week of August 2005. Ultimately, DESC awarded FERAS/Aerocontrol into-plane aviation fuel supply contracts for seven locations under Bid Solicitation One.

The second bid solicitation at issue was issued in May 2005, when DESC re-opened a bid solicitation for an into-plane aviation fuel supply contract with respect to an airport in Baku, Azerbaijan (Bid Solicitation Two). DESC awarded the corresponding contract to FERAS/Aerocontrol on or around May 10, 2005.

On or about June 16, 2005, DESC issued the third bid solicitation at issue—one for a PC & S aviation fuel supply contract with respect to Bagram Air Field, Afghanistan (Bid Solicitation Three). DESC originally required initial bids to be submitted by July 1, 2005, but subsequently postponed the deadline to March 31, 2006. Best and final bids were due by July 13, 2006. On August 16, 2006, DESC awarded the corresponding contract to a company unaffiliated with FERAS/Aerocontrol named Red Star. FERAS/Aerocontrol had withdrawn from the bidding process prior to the final award.

With respect to Bid Solicitations One, Two, and Three, Bittenbender fed Wilkinson confidential information regarding Avcard's participation in the bidding process. Wilkinson knowingly and willfully accepted such information with the intent to gain unfair advantages for FERAS/Aerocontrol in the respective bidding processes.2

C. Sentencing.

Upon accepting Wilkinson's guilty plea to Counts I, II, and III, the district court ordered the United States Probation Office to prepare a Presentence Report (the PSR) for Wilkinson. The PSR submitted in response specified: (1) a base offense level of 7 under the United States Sentencing Commission, Guidelines Manual, (Nov. 2007) (USSG or the Guidelines),3 see USSG § 2B1.1(a)(1); (2) an 18 level enhancement on the basis that the loss in this case was at least $2,500,000.00, see id. § 2B1.1(b)(1)(J); (3) a 2 level enhancement because a substantial part of Wilkinson's offense conduct was committed from outside the United States, see id. § 2B1.1 (b)(9)(B); (4) a 2 level reduction for acceptance of responsibility, see id. § 3E1.1(a); and (5) an additional 1 level reduction for acceptance of responsibility, in anticipation of a motion by the government to that effect, as agreed upon in the Plea Agreement, see id. § 3E1.1(b). All of this resulted in a total offense level of 24. When combined with Wilkinson's criminal history category of I, an offense level of 24 produced an advisory Guidelines sentencing range of 51 to 63 months' imprisonment. Additionally, the PSR stated that, pursuant to 18 U.S.C. § 3561(c)(1), Wilkinson was eligible for not less than 1 nor more than 5 years' probation. However, the PSR also stated that because the applicable advisory Guidelines sentencing range was in Zone D of the Sentencing Table, Wilkinson was actually ineligible for probation. See USSG § 5B1.1, comment. (n.2); USSG § 5C1.1(f).

Wilkinson was originally scheduled to be sentenced on October 30, 2008. Ultimately, he was sentenced on November 26, 2008, following a two-day sentencing hearing. Prior to such hearing, on October 20, 2008, the government submitted its initial sentencing memorandum to the district court, requesting that the district court sentence Wilkinson to 51 months' imprisonment, the low end of the advisory...

To continue reading

Request your trial
81 cases
  • U.S.A v. Church
    • United States
    • U.S. District Court — Western District of Virginia
    • April 5, 2010
    ...the victim's losses,” as delineated in § 2259(b)(3), which were proximately caused by the Defendant's offense. Cf. United States v. Wilkinson, 590 F.3d 259, 270 (4th Cir.2010) (vacating and remanding district court's finding the victim suffered no actual pecuniary loss under the MVRA, as “t......
  • United States v. Umaña
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • April 23, 2014
    ...that the information has sufficient indicia of reliability to support its accuracy.’ ” Id. at 392 (quoting United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.2010)). Indeed, in Powell, we specifically rejected the claim Umaña now makes that intervening case law undermined Williams, hold......
  • U.S.A v. Lewis
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 27, 2010
    ...advisory Guidelines range, and it must provide an adequate explanation of how it arrived at that calculation. See United States v. Wilkinson, 590 F.3d 259, 270 (4th Cir.2010). Finally, our appellate review of a sentence could be described as “light” only insofar as the sentencing court comm......
  • United States v. Jinwright
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 22, 2012
    ...2005. The court moreover provided a “sufficient explanation of its rationale” to support its tax loss finding. United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir.2010). The district court found a pattern of “long-term conduct” that “went on for, in [the] Court's eyes, approximately a de......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT