U.S. v. Hatch

• Decision Date: 28 February 1991
• Docket Number: 90-4286,Nos. 90-4184,s. 90-4184
• Citation: 926 F.2d 387
• Parties: 32 Fed. R. Evid. Serv. 556 UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. HATCH, Jr., Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Larry AVERITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 387

926 F.2d 387

32 Fed. R. Evid. Serv. 556

UNITED STATES of America, Plaintiff-Appellee, v. Bernard J. HATCH, Jr., Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Larry AVERITT, Defendant-Appellant.

Nos. 90-4184, 90-4286.

United States Court of Appeals Fifth Circuit.

Feb. 28, 1991.

Michael J. Domingue, Baton Rouge, La., Frank T. Salter, Jr., Salter, Streete & Hale, Lake Charles, La., for Bernard J. Hatch, Jr. Edward J. Castaing, Jr., New Orleans, La. (Court-appointed), for Kenneth Larry Averitt.

Josette L. Cassiere, William J. Flanigan, Asst. U.S. Attys., and Joseph S. Cage, Jr., U.S. Atty., Shreveport, La., for U.S.

Appeals from the United States District Court for the Western District of Louisiana.

Before JOHNSON, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

A federal grand jury returned a fourteen count indictment against appellant Kenneth Larry Averitt, Sheriff of Union Parish, Louisiana. The first two counts also indicted appellant Bernard J. Hatch, Jr., who allegedly had been hired by the sheriff to consult on the construction of a new jail. They were both charged with mail fraud, in violation of 18 U.S.C. Sec. 1341, and conspiracy to commit mail fraud, in violation of 18 U.S.C. Sec. 371. A jury found Hatch guilty on both of the counts, one count of mail fraud and one count of conspiracy to commit mail fraud. The judge sentenced him to 21 months imprisonment followed by three years of supervised release for the mail fraud conviction. He also ordered him to pay a special assessment of $50. The judge imposed the same sentence for the conspiracy conviction, to be served concurrently with the mail fraud sentence. In a plea bargain, Averitt pleaded guilty to one count of mail fraud. The district court sentenced him to 24 months imprisonment followed by a term of three years supervised release. Averitt also was required to pay a special assessment of $50. The two cases were consolidated for appeal.

Hatch provides us with an imaginative array of reasons to reverse the jury's verdict. None of his arguments have merit. Averitt asks us to vacate his sentence and remand for resentencing because of the judge's upward departure from the applicable Sentencing Guidelines range. Finding adequate support for the upward departure, we affirm the sentence ordered by the district court.

Facts

In Louisiana, the Union Parish Sheriff's Office ("UPSO") finances its day to day operations with money contained in its general fund. Each sheriff has legal possession of the general fund for his office and is authorized to pay the expenses incurred in performing his duties out of this fund. La.Rev.Stat.Ann. Sec. 33:1422. The convictions of Averitt and Hatch stem from Averitt's unauthorized and illegal use of this general fund.

In developing the indictments of Averitt, there was evidence presented to the grand jury that he used his general fund to purchase items for his personal use. On one occasion, Averitt submitted an invoice indicating the purchase of ten pairs of boots for his deputies. The actual items purchased included a felt hat, a bit, reins, blankets, and other horseback riding accessories. On other occasions he charged his office for clothing, tires, hunting supplies, and motel rooms. None of these items were necessary for the performance of his duties as sheriff of Union Parish. Averitt effectuated payment for all of these items by having his Chief Civil Deputy mail a check to the provider of the service or retailer of the article.

Averitt also authorized payments from his general fund to appellant Hatch. Averitt met Hatch in 1984 through their mutual affiliation with the Louisiana Sheriff's Association. At all relevant times, Hatch was employed as a consultant by the Risk Management Group. The Louisiana Sheriff's Association was self-insured, and Risk Management consulted with the Association on how to decrease the Association's liability risks. Hatch consulted mainly in the area of managing jails and jail personnel. Hatch was allowed to contract for individual consulting jobs, as long as those jobs did not interfere with his work for Risk Management and the Association.

In 1986, the Union Parish Police Jury entered a contract with William R. Baker and Associates for the construction of a new maximum security jail in Union Parish. Construction of the jail began in January 1988. In May 1988, Averitt ordered his Chief Civil Deputy to send a check to Hatch in the amount of $25,000. Averitt's Chief Civil Deputy testified that she sent the $25,000 check to Hatch by mail on May 13, 1988. Then later, before May 1989, Averitt authorized three more payments from the general fund to Hatch. Averitt's Chief Civil Deputy testified that she also sent at least one of the other three payments to Hatch by mail. Hatch received a total of $43,750 from the Union Parish Sheriff's Office.

An investigation of Averitt's activities questioned these payments to Hatch. Hatch and Averitt claimed that the payments were made pursuant to a consulting contract. As a recognized expert on jails, Hatch was allegedly hired by Averitt to advise him on the construction of the new Union Parish jail. The sheriff and Hatch claimed to have entered into an oral contract for this purpose in May 1987, and to have memorialized and renewed the arrangement for a second year in May 1988. Hatch and Averitt produced a written contract to verify the consulting relationship. Although the signature line was dated May 15, 1987, the parties later admitted that the contract had been backdated and was not actually signed until May 1988.

A federal grand jury returned a fourteen count indictment against Averitt. Counts three through fourteen included charges of mail fraud for his unauthorized use of money from the UPSO general fund. Rather than face trial on all fourteen counts, Averitt chose to plead guilty to one count of mail fraud not connected to the alleged consulting arrangement with Hatch. He now contests the sentence he received as a result of the plea bargain.

The first two counts of the indictment charged Hatch as well as Averitt, and involved the alleged consulting arrangement. Averitt and Hatch were charged with using the mails to facilitate a scheme to defraud the UPSO through payments for unperformed consulting services. The government contended that Averitt authorized payment to Hatch for services that Hatch did not actually provide. Hatch elected to go to trial. The government's evidence tended to prove that Hatch could not justify the payments he received, and that Averitt received a kickback from the payments he made to Hatch. Hatch's attempts to provide evidence of the work he performed amounted to vague descriptions of meetings with Averitt and extensive hours spent "thinking" about the problems and needs of the new Union Parish jail. The jury rejected his attempts to justify his alleged contract with Averitt, and found him guilty of mail fraud and conspiracy to commit mail fraud. Hatch appeals the jury verdict on several grounds.

Hatch

We consider first the Hatch challenge to the jury verdict because it is a broad based attack upon the entire trial process. Hatch asserts reversible error in almost every aspect of the proceedings leading to his convictions for mail fraud and conspiracy to commit mail fraud. He contends that his convictions violate the Federal Constitution, federal procedures, and even Louisiana law. After a thorough review of the entire record, we affirm the jury's verdict.

I.

Hatch asked the district court to dismiss the claims against him on the basis of a defective indictment. He urges that the district court erred when it denied his Motion to Dismiss. Hatch argued that his indictment was defective because it alleged that he had schemed with Averitt to defraud the UPSO of money contained in its general fund. But he asserts that under Louisiana law the UPSO has no legal identity. The sheriff has control of all funds available to operate his office. Since the UPSO is not a legal entity, Hatch claims that it is impossible to defraud the UPSO. He implies that the indictment violated his Fifth Amendment due process rights by hindering his ability to prepare a defense.

An indictment is sufficient if it contains the elements of the offense charged, informs the defendant of the charges, and enables the defendant to plead acquittal or conviction and avoid future prosecutions for the same offense. United States v. Manotas-Mejia, 824 F.2d 360, 365 (5th Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 354, 98 L.Ed.2d 379 (1987). Hatch's indictment meets this standard. Naming the UPSO as the party defrauded did not prevent Hatch from ascertaining the charges against him. We see no possibility that the indictment could have hampered his defense. The indictment sufficiently described the conduct underlying the charges brought by the government to enable Hatch to prepare his defense. The district court correctly denied his Motion to Dismiss.

II.

In a related argument, Hatch claims that the mail fraud statute has no application to this case because the government failed to identify a legally cognizable victim of the alleged scheme to defraud. Looking to Louisiana law, Hatch determined that the mail fraud statute requires a victim capable of being deceived. Repeating his defective indictment argument, he contends that the UPSO cannot be the victim of mail fraud. The only party capable of being defrauded was Averitt, the legal "owner" of the UPSO general fund. Since Averitt allegedly was part of the scheme to defraud, Hatch urges that he cannot be a victim of the fraud. Without a legally cognizable victim, Hatch concludes that his conviction under the mail fraud statute was improper.

There is no escape by Hatch from his conviction under the mail fraud statute as a result of the government's identifying the UPSO as the party defrauded. Hatch's arguments must fail...