U.S. v. Sharpe

• Decision Date: 07 February 2006
• Docket Number: No. 05-11553 Non-Argument Calendar.,05-11553 Non-Argument Calendar.
• Citation: 438 F.3d 1257
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jacqueline Anne SHARPE, a.k.a. Anne Sharpe, James A. Sharpe, Sr., a.k.a. Jimmy Sharpe, David W. Stuart, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1257

438 F.3d 1257

UNITED STATES of America, Plaintiff-Appellant, v. Jacqueline Anne SHARPE, a.k.a. Anne Sharpe, James A. Sharpe, Sr., a.k.a. Jimmy Sharpe, David W. Stuart, Defendants-Appellees.

No. 05-11553 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

February 7, 2006.

Michelle McCain Heldmyer, Nancy J. Hess, Asst. U.S. Atty., Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for U.S.

Ross Alan Keene, Barry W. Beroset, Beroset & Keene, Pensacola, FL, Christopher Michael Boswell, Cadenhead Law Firm, Destin, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Florida.

Before DUBINA, HULL and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

The government appeals the district court's post-trial dismissal of the indictment, pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense, against James Sharpe, Sr. ("Sharpe") and Jacqueline Anne Sharpe ("Anne Sharpe") (collectively, "the Sharpes") and David Stuart. The two-count indictment charged Sharpe and Stuart with mail fraud, in violation of 18 U.S.C. §§ 1341 and 2 (Count 1), and all three defendants with conspiracy to launder proceeds of mail fraud, in violation of 18 U.S.C. § 1956(h) (Count 2), arising out of their involvement in a scheme to conceal funds which Sharpe was ordered to relinquish to a court-appointed Receiver as part of a plea agreement in a prior case. On appeal, the government argues the district court erred by dismissing the indictment because it contained allegations sufficient, as a matter of law, to state the offenses charged. We agree and, accordingly, reverse the district court's dismissal of the indictment and remand with instructions to reinstate the jury's verdict and for further proceedings consistent with this opinion.

I.

We review the dismissal of an indictment de novo. United States v. deVegter, 198 F.3d 1324, 1326 (11th Cir.1999). Federal Rule of Criminal Procedure 12(b)(3)(B) provides that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense." Fed. R.Crim.P. 12(b)(3)(B). We will reverse a Rule 12(b)(3)(B) dismissal if we conclude, as we do here, "that the factual allegations in the indictment, when viewed in the light most favorable to the government, were sufficient to charge the offense as a matter of law." deVegter, 198 F.3d at 1327 (internal quotations omitted); see also United States v. Sampson, 371 U.S. 75, 78-79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962) (stating that allegations in indictment are treated as true when reviewing Rule 12(b) motions to dismiss).

II.

The relevant facts are these. We emphasize that our focus is on the facts as alleged in the indictment, which we view in favor of the government and assume to be true for purposes of this appeal. In other words, as the district court was required to do, we limit our discussion to the facial sufficiency of the allegations of the indictment for purposes of the Rule 12(b)(3)(B) analysis.

According to the instant indictment, Sharpe had previously pled guilty, in a separate proceeding, to three counts of making false statements, in violation of 18 U.S.C. § 1014. The superseding indictment in the prior case included a forfeiture count enumerating, inter alia, commercial property located on Highway 98 in Destin, Florida ("Emerald Lakes property"), as having been obtained by fraud and, therefore, forfeitable. The Emerald Lakes property was owned by Four Star, a company which was owned by Asset Resources Management ("Asset Resources"). Asset Resources, in turn, was owned by the Sharpes, and Sharpe served as the President and Director of the company.

As part of the plea agreement in the prior case, Sharpe and his co-defendants, James A. Sharpe, Jr. and Shannon Sharpe Carr, agreed to the court's appointment of a Receiver to locate and manage assets, including the Emerald Lakes property. The Receiver was charged with liquidating the Emerald Lakes property and holding all funds from the sale for future distribution to the victims of the crimes to which Sharpe pled guilty. According to the allegations enumerated in Count 1 of the instant indictment, Stuart, a licensed real estate agent working with Abbott Realty Services, Inc. ("Abbott Realty"), and Sharpe,

knowingly devise[d] and intended to devise a scheme and artifice to defraud, and for obtaining money by means of false and fraudulent pretenses, representations, and promises for the purpose of executing such scheme and artifice and attempting so to do, caused to be sent from Fort Walton Beach, Florida, and delivered according to direction thereon by commercial interstate carrier, a FedEx package containing [a check] to Mr. Michael J. Quilling, [the Receiver] . . .

Notably, the FedEx package was sent on or about June 11, 2004, after the appointment of the Receiver.

The indictment further alleged that on March 8, 2004, Sharpe and Stuart entered into an "Exclusive One Time Listing Agreement," in which Sharpe, as president of Four Star, agreed to pay Abbott Realty a flat commission fee of $30,000 upon the sale of the Emerald Lakes property for $1,750,000. The property was sold for $1,750,000 on June 5, 2004, and, pursuant to instructions from Stuart, the closing attorney disbursed the $30,000 commission fee to Abbott Realty. In addition, the closing attorney disbursed $153,750 to "David Stuart, Consultant," also pursuant to Stuart's instructions. The amount of both disbursements was deducted from the money the closing attorney gave to the Receiver, even though, as the indictment noted, the receivership orders required "the sale proceeds to be given directly to the Receiver."

On June 11, 2004, Stuart deposited the $153,750 consultant fee into his checking account, which, prior to this deposit, had a balance of approximately $2,000. Three days earlier, on June 8, 2004, Stuart had written a check, drawn on this same checking account, to Anne Sharpe (Sharpe's wife) for $35,000. Finally, on June 14, 2004, Anne Sharpe presented Stuart's check to Stuart's bank and converted the check into four official checks in the amount of $8000 each and took the remaining $3000 in cash.

Thus, according to Count 1, the Sharpes and Stuart engaged in a scheme and artifice to defraud the Receiver of a portion of the Emerald Lakes sales proceeds, which the Sharpes were required to give directly to the Receiver, pursuant to Sharpe's plea agreement in the prior case. In other words, construing the allegations in the light most favorable to the government, the scheme consisted of unlawfully diverting some of the Emerald Lakes sale proceeds to the Sharpes, falsely representing to the Receiver the amount of the sale, and using the mails to further the scheme to defraud.

In Count 2, Stuart and both Sharpes were charged with conspiracy to launder the proceeds of the mail fraud, in violation of 18 U.S.C. § 1956(h), based on the facts presented in Count 1 and the allegations that Stuart, Sharpe, and Anne Sharpe

knowingly combine[d], conspire[d], . . . together and with other persons, to conduct and attempt to conduct monetary transactions affecting interstate commerce, knowing that the property involved in the transactions represented the proceeds of unlawful activity, that is, mail fraud, and knowing that the transactions were designed in whole or in part to conceal and disguise the nature, the location, the source, the ownership, and the control of the proceeds of specified unlawful activity . . .

The government's allegations were based in part on the two orders from the prior criminal case involving Sharpe, in which the Receiver was appointed.

During the defendants' jury trial, the government entered the two receivership orders into evidence and argued that the Receiver was entitled to receive the $35,000 portion of Stuart's consultant fee that ultimately was given to the Sharpes.¹ The defendants maintained during the trial, however, that the $35,000 given by Stuart to Anne Sharpe was a personal loan as evidenced by a promissory note. On October 22, 2004, the jury returned a verdict finding the defendants guilty as charged.

Seven days later, Anne Sharpe filed a motion for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29(c), challenging the sufficiency of the evidence to support her conviction on Count 2.² In this motion, Anne Sharpe asserted that the government failed to prove beyond a reasonable doubt that Sharpe and Stuart committed mail fraud, and, as a result, the government failed to establish that the $35,000 check Anne Sharpe received from Stuart consisted of proceeds from mail fraud or that she entered into an agreement with Sharpe and Stuart to conceal money she knew was obtained through mail fraud. This motion remained pending when the defendants proceeded to sentencing on January 5, 2005.

During the subsequent sentencing hearing, in support of his objections to the computation of his recommended sentence in the Presentence Investigation Report, Stuart argued that the amount of loss in the case was $0 and that the Receiver was not entitled to the $35,000 portion of Stuart's fee because it represented a 2% commission that would have gone to J.A.S. Realty, another company formed by Sharpe but one that was not covered by the receivership orders entered in the prior case. The district court agreed that if the receivership orders did not cover J.A.S. Realty, then the Receiver was not entitled to the money.

At the sentencing hearing, Stuart and the Sharpes also orally moved the court for judgments of acquittal based on the fact that the receivership orders did not cover J.A.S. Realty. The defendants urged, in essence, that if the $35,000 payment to Anne Sharpe, in fact, was a commission to J.A.S. Realty, there could be no fraud against the Receiver because he was not entitled to money...