United States v. Dowie, 120210 FED9, 07-50069

Docket Nº:07-50069, 07-50072
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DOUGLAS R. DOWIE, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN STODDER, Jr., Defendant-Appellant
Judge Panel:Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District Judge. Rawlinson, Circuit Judge, concurring:
Case Date:December 02, 2010
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DOUGLAS R. DOWIE, Defendant-Appellant.

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN STODDER, Jr., Defendant-Appellant

Nos. 07-50069, 07-50072

United States Court of Appeals, Ninth Circuit

December 2, 2010

NOT FOR PUBLICATION

Argued and Submitted November 1, 2010 Pasadena, California.

Appeal from the United States District Court Nos. CR-05-00027-GAF-2, CR-05-00027-GAF-1 for the Central District of California Gary A. Feess, District Judge, Presiding.

Before: GOODWIN and RAWLINSON, Circuit Judges, and ZOUHARY, District Judge. [**]

MEMORANDUM [*]

Douglas R. Dowie and John Stodder, Jr. were found guilty by a jury of fraudulently inflating client bills during their employment with the public relations firm Fleishman-Hillard ("FH"). They appeal their convictions for conspiracy and wire fraud under 18 U.S.C. § 371 and § 1343, challenging multiple aspects of their trial. Dowie also appeals his sentence, while Stodder appeals the district court's denial of his request for post-conviction investigation funds. For the reasons that follow, we affirm appellants' convictions, Dowie's sentence, and the district court's denial of investigation funds. Because the parties are familiar with the facts and procedural history of the case, we do not recite them here except as necessary to our decision.

A. Sufficiency of the Evidence

1. Evidence of Wire Fraud

Appellants contend that the Government failed to present sufficient evidence to support their convictions for wire fraud, collectively pointing to three alleged gaps in the evidence presented at trial. First, Dowie argues that the Government failed to establish his specific intent to defraud because it did not present evidence showing he expressly directed the fraudulent increases made to client bills. See United States v. Lothian, 976 F.2d 1257, 1267 (9th Cir. 1992) ("To sustain a conviction under the mail and wire fraud statutes, there must be sufficient evidence to show that the defendant willfully participated in a scheme with knowledge of its fraudulent nature and with intent that these illicit objectives be achieved.") (internal quotation marks omitted); see also 18 U.S.C. § 1343.

The Government put forth significant evidence showing that Dowie instructed subordinates to increase the amounts billed to the Los Angeles County Department of Water and Power ("DWP") when he knew the only way to do so was by fraudulently increasing the number of hours worked. Further, the Goverment presented evidence indicating Dowie knew these fraudulent additions were being made to DWP bills. Taken together, this evidence was sufficient for a rational trier of fact to have found that Dowie participated in the scheme to increase the invoices to DWP and was aware of the fraudulent nature of these acts. See United States v. Ciccone, 219 F.3d 1078, 1084 (9th Cir. 2000) ("The government can establish knowledge of a fraudulent purpose by circumstantial evidence."); Lothian, 976 F.2d at 1262 ("The defendant need not personally have mailed the letter or made the telephone call; the offense may be established where one acts with the knowledge that the prohibited actions will follow in the ordinary course of business or where the prohibited acts can reasonably be foreseen").

Second, Appellants argue that the Government failed to show the wires were used in furtherance of the scheme. The established process used to prepare the fraudulent billing information, however, included emailing an Excel file containing the inflated numbers from FH's St. Louis office to its LA office. While it was not necessary that this information be transferred by email-rather than some other method-these wire transmissions were a regular step in the process used to prepare the fraudulent billing information presented to FH clients, which was undisputably an essential part of the fraud to convince these clients to overpay FH. Accordingly, there was sufficient evidence to find that the wires were used to further the fraudulent scheme. See Pereira v. United States, ZM U.S. 1, 8 (1954) (finding that it is sufficient if the wire transmission is "incident to an essential part of the scheme."); United States v. Chung Lo, 231 F.3d 471, 478 (9th Cir. 2000) ("Although a mailing [or wire transmission] must occur in the execution of the scheme - that is, as a 'step in [the] plot, ' - the mailing [or transmission] need not be an essential element of the scheme.") (quoting Schmuck v. United States, 489 U.S. 705, 711 (1989) (internal citations omitted)).

Third, Stodder contends that the Government failed to prove he ever personally obtained money as a result of the fraud. This issue was not raised before the district court and is reviewed for plain error. See United States v. Green, 592 F.3d 1057, 1065 (9th Cir. 2010). A conviction for wire fraud requires the Government to prove the defendant had "a specific intent to defraud, " not an intent to personally gain from the fraud. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008); United States v. Inzunza, 580 F.3d 894, 904 (9th Cir. 2009) (citing United States v. Welch, 327 F.3d 1081, 1106 (10th Cir. 2003) ("No appellate court to our knowledge has ever held an intent to achieve personal gain is an element of a traditional mail or wire fraud charge involving the deprivation of property.")); United States v. Stockheimer, 157 F.3d 1082, 1087-88 (7th Cir. 1998) ("An intent to defraud does not turn on personal gain. . . . [A]ll that matters is that [defendant] intended to inflict a loss.") (internal citation omitted). Therefore, there is no basis to find plain error related to this claim.

2. Burden of Proof

Appellants also argue that the Government suggested at trial that all upward adjustments, or "write-ups, " to client bills were necessarily fraudulent. Appellants contend this suggestion impermissibly shifted the burden of proof, requiring them...

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