U.S. v. Frost

• Decision Date: 12 September 1997
• Docket Number: 95-6011,96-5722,96-5725,95-6006,Nos. 95-6004,95-6005,95-6012,96-5726 and 96-5785,s. 95-6004
• Citation: U.S. v. Frost, 125 F.3d 346 (6th Cir. 1997)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter FROST (95-6011; 96-5722); Robert Eugene Turner (95-6005; 96-5725); Richard Thomas Congo (95-6004); Peggy Young Potter (95-6012; 96-5726); Dennis Allen Faulkner (95-6006; 96-5785), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 346

125 F.3d 346

UNITED STATES of America, Plaintiff-Appellee, v. Walter FROST (95-6011; 96-5722); Robert Eugene Turner (95-6005; 96-5725); Richard Thomas Congo (95-6004); Peggy Young Potter (95-6012; 96-5726); Dennis Allen Faulkner (95-6006; 96-5785), Defendants-Appellants.

Nos. 95-6004, 95-6005, 95-6006, 95-6011, 95-6012, 96-5722,

96-5725, 96-5726 and 96-5785.

United States Court of Appeals Sixth Circuit.

Argued June 9, 1997.

Decided Sept. 12, 1997.

Rehearing Denied; Suggestion for Rehearing In Banc Declined

Dec. 16, 1997.

Gary Humble (argued and briefed), Office of the U.S. Attorney, Chattanooga, TN, for Appellee.

W. Thomas Dillard (argued and briefed), Wade V. Davies (briefed), Ritchie, Fels, & Dillard, Knoxville, TN for Walter Frost.

Sam D. Elliott (briefed), Charles J. Gearhiser (argued and briefed), Gearhiser, Peters, Lockaby & Tallant, Chattanooga, TN for Robert Eugene Turner.

William P. Burgess, Jr., (briefed), Patrick M. Tuten (argued and briefed), Huntsville, AL for Richard Thomas Congo.

Bobby Lee Cook (briefed), Cook & Palmour, Summerville, GA, Jake Arbes (argued and briefed), Atlanta, GA for Peggy Y. Potter.

Stuart E. Smith (briefed), Bell, Richardson, Huntsville, AL, and Dennis Allen Faulkner, pro se.

Before: KEITH, KENNEDY, and MOORE, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

These five criminal defendants raise numerous issues attacking their convictions and sentences for committing mail fraud against the federal government and the University of Tennessee. One defendant also appeals his conviction for knowingly making a false material declaration before a grand jury. For the following reasons, we AFFIRM in part, REVERSE in part, and REMAND for proceedings consistent with this opinion.

I. Introduction

During the time period at issue, defendant Dr. Walter Frost was a full-time professor and Chairman of the Department of Engineering Science and Mechanics at the University of Tennessee Space Institute ("UTSI") in Tullahoma, Tennessee. UTSI is a graduate school within the Tennessee school system which offers master's and Ph.D degrees in science and engineering disciplines. Its students are primarily military and other government personnel.

Frost also is the owner and President of FWG Associates, Inc. ("FWG"), a private atmospheric science research firm based in Tullahoma. As it grew, FWG opened another office in Huntsville, Alabama. FWG relies primarily upon contracts with government agencies such as the National Aeronautics and Space Administration ("NASA") and the United States Department of Defense.

Defendant Dr. Robert Turner, who obtained his Ph.D in 1976 under Frost, was a part-time professor at UTSI. Turner is a former NASA engineer, and his role at UTSI included the recruitment of NASA employees for the school. In 1989, he became a vice-president of FWG and ran the FWG office in Huntsville. Turner also is the uncle of defendants Faulkner's and Congo's wives, who are sisters.

Defendants Dr. Richard Congo, Dr. Dennis Faulkner, and Peggy Potter all were students at UTSI between 1987 and 1990, pursuing either a master's or Ph.D degree. The primary component of the degree was the completion of either a thesis (for a master's degree) or a dissertation (for a doctoral degree). Frost served as the major professor and advisor for each student; he also selected the professors who would sit on the committee before which each student defended orally his or her thesis or dissertation. Frost and Turner served on the committee for each student defendant.

During his studies at UTSI, Faulkner worked for the Department of the Army. Congo and Potter worked for NASA while at UTSI.

For reasons explained in detail infra, a grand jury issued a thirty-one count Superseding Indictment on March 10, 1995 against defendants. Counts One through Sixteen charged defendants with scheming to defraud the United States of money or property, in violation of the Mail Fraud Act, 18 U.S.C. § 1341. Counts Seventeen through Twenty charged a scheme to defraud the University of Tennessee of its intangible right to the honest services of its employees, Frost and Turner. See 18 U.S.C. §§ 1341, 1346. The indictment charged Frost and Turner as principals under each of these counts, and the student defendants as aiders and abettors. See 18 U.S.C. § 2. The Superseding Indictment did not charge each student with every count: it charged Congo with Counts One through Seven and Nineteen; Potter with Counts Eight through Twelve and Seventeen; and Faulkner with Counts Thirteen through Sixteen and Twenty. It also charged Charles Hill, a NASA employee who similarly pursued a doctoral degree at UTSI, of Counts Eight through Twelve and Eighteen. Hill, however, died before trial.

Counts Twenty-One through Twenty-Nine charged a scheme to defraud the federal government, in violation of the mail fraud statute, through the submission of false billing claims. Counts Twenty-One and Twenty-Two applied only to Frost and Turner; Counts Twenty-Three through Twenty-Nine applied only to Frost.

Count Thirty charged Frost with attempted obstruction of justice during the investigation resulting in these prosecutions, in violation of 18 U.S.C. § 1503. Finally, Count Thirty-One charged Congo with making a false material declaration to the grand jury during these proceedings, in violation of 18 U.S.C. § 1623.

After unsuccessfully moving to dismiss the indictment, defendants were tried before a jury beginning on March 28, 1995. On April 28, 1995, the jury convicted each defendant of each count with which he or she had been charged, except that it acquitted Frost and Turner of Count Eighteen, and acquitted Frost of Count Thirty, the obstruction of justice count.

Defendants filed motions for acquittals and new trials, which the District Court denied. Defendants thereafter filed these appeals, and we turn now to the arguments which they have raised.

II. Claims Regarding Mail Fraud Act

A. Scheme to Defraud Federal Government of Contracts

The main theory of the prosecution is that the professor defendants provided each student defendant with written materials and help from FWG employees so that the student could complete his or her thesis or dissertation, and therefore receive an advanced degree, through significant plagiarism and with a minimum of effort. In return for this benefit, the student defendant would abuse his or her position with the government in order to secure for FWG, and through it the professor defendants, lucrative government research contracts, or modifications of contracts. By pursuing this scheme, the professor defendants obtained property from the federal government which they otherwise would not have received, and the student defendants obtained advanced degrees from the University of Tennessee without having done the necessary work.

The government argues that defendants repeatedly violated 18 U.S.C. § 1341, the mail fraud statute, by pursuing this "degrees-for-contracts" scheme. Section 1341 provides:

Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, ... for the purpose of executing such scheme or artifice or attempting to do so, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, ... or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 1341.

Counts Two through Seven, Nine through Twelve, Thirteen, Fourteen, and Sixteen in the Superseding Indictment rested on the degrees-for-contracts scheme. Although the indictment charged Frost and Turner with all of these counts, it charged Congo only with Counts Two through Seven, Potter with Counts Nine through Twelve, and Faulkner with Counts Thirteen, Fourteen, and Sixteen.

Ultimately, the prosecution relies upon the following general evidentiary theory. In 1985, Dan Berlinrut, an engineer for the Air Force and a Ph.D candidate under Frost from 1983 to 1986, discussed with Frost his proposed dissertation topic. Frost, copying verbatim large portions of Berlinrut's dissertation, turned the topic into a proposal for a contract with the Air Force. The Air Force rejected the proposal. Frost thereafter instructed Berlinrut to call Turner, who told Berlinrut that he should award FWG a contract on his dissertation topic when he got to his next duty station. Turner also told Berlinrut that "Frost would then write [his] dissertation guaranteeing it would be accepted," and that "this was done all the time at NASA, and it is OK." Rather than accepting this invitation, Berlinrut instead reported this incident to the authorities. He eventually failed to graduate.

The government contends that, several years later, the student defendants, who were both students at UTSI and government employees, cheated with the help of Frost and Turner on their thesis or dissertation. Further, each student defendant had an alleged role in the award or modification of a government contract to FWG. Accordingly, the government argues, we may infer that defendants entered into the same kind of agreement which Turner unsuccessfully proposed to Berlinrut, acting with the intent to defraud the government of its property.

Every defendant attacks the sufficiency of the evidence supporting these convictions. When determining whether sufficient evidence supports a conviction, we decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a...