U.S. v. Glymph

• Citation: 96 F.3d 722
• Decision Date: 19 September 1996
• Docket Number: No. 95-5686,95-5686
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George GLYMPH, d/b/a Specifications and Standards, Inc., Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 722

96 F.3d 722

UNITED STATES of America, Plaintiff-Appellee, v. George GLYMPH, d/b/a Specifications and Standards, Inc. Defendant-Appellant.

No. 95-5686.

United States Court of Appeals Fourth Circuit.

Argued May 9, 1996.

Decided Sept. 19, 1996.

ARGUED: James Hanjo Lengel, Columbia, SC, for Appellant. Eric William Ruschky, Assistant United States Attorney, Columbia, SC, for Appellee. ON BRIEF: Jonathan Harvey, Columbia, SC, for Appellant. Margaret B. Seymour, United States Attorney, Columbia, SC, for Appellee.

Before RUSSELL, ERVIN, and WILKINS, Circuit Judges.

Affirmed by published opinion. Judge ERVIN wrote the opinion, in which Judge RUSSELL and Judge WILKINS joined.

OPINION

ERVIN, Circuit Judge:

George Glymph was convicted of knowingly supplying to the Department of Defense (DOD) parts that did not conform to the purchase order specifications, in violation of 18 U.S.C. § 287. Glymph argues that his criminal prosecution was barred by his earlier four-year debarment from government contracting, which he contends constituted "punishment" for Double Jeopardy purposes. Glymph also contends that the government failed to prove his specific intent to violate Section 287. Finally, Glymph complains that the district court clearly erred when it found that he occupied a position of trust as defined by the Sentencing Guidelines. Finding no merit in his arguments, we affirm.

I.

George Glymph was President and ninety-five percent owner of Specifications and Standards, Inc. ("S & S")--an award-winning and profitable small business in Columbia, South Carolina--which bid on government purchase orders for hose assemblies and other parts. In November 1992, S & S received approval, based on its good quality history, to participate in the DOD's "Alternate Release Procedure," which allowed the company to ship parts without prior inspection by a government Quality Assurance Representative ("QAR"). Under the procedure, Glymph certified that each shipment had passed all required tests and examinations and conformed to the contractual specifications. S & S was expelled from the Alternate Release Procedure program in March 1993, after failing to respond to DOD requests for records documenting that it had delivered supplies meeting the purchase order requirements. In April 1994, debarment proceedings were instituted. No fine was imposed, but Glymph and S & S were excluded from government contracting and subcontracting for four years.

In October 1994, Glymph was indicted by a federal grand jury. The case went to trial March 27, 1995, and the jury returned guilty verdicts on seven counts of making false claims in connection with thirteen separate government purchase orders in which the parts supplied did not conform to the specifications. 18 U.S.C. § 287. The district court imposed a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1, based on evidence that Glymph set fire to certain S & S government contract files after the DOD began an investigation. The court also enhanced Glymph's offense level under U.S.S.G. § 3B1.3 for abusing a position of trust. Glymph was sentenced on each count to twenty-one months in prison with two years' supervised release, all sentences to run concurrently, and was ordered to pay $6,891 in restitution, plus special assessments.

II.

Glymph argues that his four-year debarment from government contracting imposed "punishment" for purposes of the Double Jeopardy Clause, and therefore that his criminal conviction should be set aside. Glymph was debarred from government contracting for four years under 48 C.F.R. § 9.406-2(b), which allows for debarment or suspension in the case of

(i) Violation of the terms of a Government contract or subcontract so serious as to justify disbarment, such as--

* * *

(ii) A history of failure to perform, or of unsatisfactory performance of, the terms of one or more contracts.

The reviewing official concluded that Glymph "d[id] not have the basic level of responsibility required of those who do business with the Government and that a period of debarment is appropriate to protect the Government's business interests."

Glymph's argument that administrative debarment imposes punishment is not persuasive. We agree with the Tenth Circuit's assessment of the remedial nature of debarment:

It is the clear intent of debarment to purge government programs of corrupt influences and to prevent improper dissipation of public funds. Removal of persons whose participation in those programs is detrimental to public purposes is remedial by definition. While those persons may interpret debarment as punitive, and indeed feel as though they have been punished, debarment constitutes the "rough remedial justice" permissible as a prophylactic governmental action.

United States v. Bizzell, 921 F.2d 263, 265 (10th Cir.1990) (citations omitted) (concerning debarment from HUD programs); accord United States v. Borjesson, 92 F.3d 954, 956 (9th Cir.1996) (debarment from HUD programs); United States v. Stoller, 78 F.3d 710, 715-24 (1st Cir.1996) (debarment from banking industry); DiCola v. Food and Drug Administration, 77 F.3d 504, 506-07 (D.C.Cir.1996) (debarment under Food, Drug and Cosmetic Act); Bae v. Shalala, 44 F.3d 489, 492-96 (7th Cir.1995) (debarment under the Generic Drug Enforcement Act); United States v. Hudson, 14 F.3d 536, 539-42 (10th Cir.1994) (debarment from banking industry); United States v. Furlett, 974 F.2d 839, 844 (7th Cir.1992) (debarment from commodities trading); Manocchio v. Kusserow, 961 F.2d 1539, 1541-42 (11th Cir.1992) (physician's exclusion from Medicare programs).

Similarly, the Supreme Court recently held that civil forfeiture is not punitive for Double Jeopardy purposes. United States v. Ursery, --- U.S. ----, ----, 116 S.Ct. 2135, 2140, 135 L.Ed.2d 549 (1996). The Court first examined the forfeiture statute's stated purpose and then its actual effects to ascertain whether it served "important nonpunitive goals." Ursery's analysis defeats Glymph's argument. First, the policy statement contained in the Federal Acquisition Regulations' debarment provisions explicitly articulates its remedial, nonpunitive purposes:

(a) Agencies shall solicit offers from, award contracts to, and consent to subcontracts with responsible contractors only. Debarment and suspension are discretionary actions that, taken in accordance with this subpart, are appropriate means to effectuate this policy.

(b) The serious nature of debarment and suspension requires that these sanctions be imposed only in the public interest for the Government's protection and not for purposes of punishment. Agencies shall impose debarment to protect the Government's interest and only for the causes and in accordance with the procedures set forth in this subpart.

48 C.F.R. § 9.402. Here, the debarment serves the important nonpunitive goals of preventing the further dissipation of public funds and protecting DOD programs--including, potentially, protecting public safety--by preventing the supply of substandard or defective parts. The fact that Glymph has suffered as a result of the debarment is of no import, for "whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the 'sting of punishment.' " Department of Revenue v. Kurth Ranch, 511 U.S. 767, ---- n. 14, 114 S.Ct. 1937, 1945 n. 14, 128 L.Ed.2d 767 (1994) (quoting United States v. Halper, 490 U.S. 435, 447 n. 7, 109 S.Ct. 1892, 1901 n. 7, 104 L.Ed.2d 487 (1989)).

We find no merit in Glymph's contention that the debarment was, in his case, so "overwhelmingly disproportionate" to the harm caused by his conduct that it amounts to punishment under United States v. Halper. ^* Glymph complains that the four-year exclusion is overwhelmingly disproportionate to the "small-gauge" damages he caused. Assuming that, after Ursery, the Halper case-specific balancing approach applies to a case outside the fixed penalty context, see Borjesson, 92 F.3d at 956 (noting that the Supreme Court "has declined to apply Halper's balancing test outside the fixed-penalty context"), we do not agree that Glymph caused "small-gauge" damage. The Government estimated that it paid S & S more than $40,000 for nonconforming parts. Taking Glymph out of the game for four years is certainly not "overwhelmingly disproportionate" to that harm.

III.

Glymph contends that there was insufficient evidence to establish his knowledge that the parts supplied did not conform to the purchase order requirements--the requisite specific intent to violate § 287. He does not offer, however, any support for that contention, other than to assert, in essence, that the jury should have viewed the evidence his way. He argues first that, because he and S & S received awards and special recognition, and because he was formerly a law enforcement officer, any wrongdoing must have been aberrant. Second, he argues that the jury should have concluded that S & S Vice President Dennis McLean was the true wrongdoer. Third, Glymph claims that the company's success overwhelmed him and caused him to allow quality control to get out of hand--mere negligence undeserving of a jail sentence. Finally, he contends that the jury became confused and treated Glymph and S & S as one legal entity.

All of those arguments add up to little more than wishing that the jury had believed him. Viewing the case in the light most favorable to the Government, United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir.1993), we find plentiful evidence of Glymph's knowledge. The jury heard evidence that S & S was a small company, and that Glymph was actively involved in all aspects of the business, especially in ordering parts to fill government purchase orders. Under the quality control manual, Glymph bore the responsibility for inspecting the parts.

On each invoice submitted to the DOD, Glymph signed a statement attesting that

The supplies...