U.S. v. Vanmeter, 00-6456.

Decision Date29 January 2002
Docket NumberNo. 00-6456.,00-6456.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Brent Eugene VANMETER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Daniel G. Webber, Jr., United States Attorney, Arlene Joplin, Assistant United States Attorney, and Jerome A. Holmes, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Mack K. Martin and J. David Ogle of Martin Law Office, Oklahoma City, OK, for Defendant-Appellant.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and ROGERS,** District Judge.

BRORBY, Senior Circuit Judge.

A jury convicted Brent Eugene VanMeter, the defendant, of accepting a bribe in violation of 18 U.S.C. § 666. On appeal, Mr. VanMeter asserts the following: (1) the trial court should have suppressed wiretap communications obtained pursuant to a court order that included unlawful references to offenses not subject to wiretap investigation; (2) government agents violated the "necessity" requirement of the federal wiretapping statute; (3) the government violated the nondisclosure requirement of the federal wiretapping statute; (4) there was insufficient evidence the bribe in question was related to Oklahoma State Department of Health official business to sustain a conviction; and (5) the trial court erroneously increased the sentence for supervising another participant in the criminal scheme. Our jurisdiction arises pursuant to 28 U.S.C. § 1291. After a careful review of each issue, we affirm.

BACKGROUND

The federal Health Care Finance Administration requires nursing homes to maintain certain minimum standards and undergo federally mandated inspections to be eligible for Medicare or Medicaid payment. In Oklahoma, the federal Health Care Finance Administration has delegated enforcement of these regulations to the Oklahoma State Department of Health. Mr. VanMeter, a Deputy Commissioner of the Oklahoma State Department of Health, was responsible for overseeing Oklahoma's nursing homes, including closing down poorly performing facilities. In 1996 the Medicaid Fraud Unit of the office of the Oklahoma Attorney General and the Federal Bureau of Investigation (FBI) began an investigation of corruption in the Oklahoma State Department of Health and in particular of Mr. VanMeter. Using a variety of conventional investigation techniques, investigators unearthed numerous leads, but were unable to discover the full extent of corruption. Investigative techniques that produced partial success included: visual surveillance at locations associated with the principal suspects; the questioning and consensual telephone monitoring of six confidential informants; witness interviews; pen registers; and toll records. Officials came to suspect Mr. VanMeter was soliciting bribes, offering favored treatment to some care providers, and engaging in schemes to "trade" nursing home patients.1

In order to complete the investigation, federal agents sought to obtain permission to intercept telephone calls of Mr. VanMeter and other suspects. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 U.S.C. § 2510-22 (1994 & Supp.2000), sets out an application procedure for federal investigators seeking permission to wiretap crime suspects. United States v. Castillo-Garcia, 117 F.3d 1179, 1184 (10th Cir.), cert. denied, 522 U.S. 962, 974, 118 S.Ct. 395, 428, 139 L.Ed.2d 309, 328 (1997). Agents must first obtain approval from the Attorney General or a specially designated Assistant Attorney General. Id. at 1184-85. Then, a judge of competent jurisdiction must approve an application submitted by investigators. Id. at 1185. Judges may only authorize wiretaps where statutory requirements are met, including a showing the wiretap is "necessary" to investigate a serious offense enumerated on a statutory list. Id.; 18 U.S.C. § 2516. Also, Title III forbids disclosure of intercepted communications except under limited exceptions. 18 U.S.C. § 2517.

On March 9, 2000 the FBI obtained a memo from a specially designated Assistant Attorney General approving a court application for authorization to wiretap suspects' telephones. This memo and subsequent application materials included lists of suspected offenses, one of which was not enumerated in the statute as subject to wiretap investigation.2 The wiretap application incorrectly characterized this non-enumerated offense as enumerated. The application included a forty-page FBI agent's affidavit detailing previous investigation efforts and explaining why normal investigative techniques were unlikely to succeed or would jeopardize the investigation. The affidavit explained visual surveillance could only partially succeed, since agents needed to know the subject matter of conversations to prove the suspects' corruption. The agent believed potential witnesses were unlikely to cooperate because they feared retaliation from Mr. VanMeter and other insiders, even under grand jury subpoena. The agent explained search warrants and banking document subpoenas were unlikely to uncover direct evidence of corruption and would alert suspects to the investigation. Also, the agent explained suspected nursing home operators and government officials were a close-knit group, making infiltration of undercover agents or confidential informants difficult and unlikely to succeed. Finally, the agent placed these investigation difficulties against the backdrop of continuing health risks to nursing home patients from dangerous patient "trading." The district court approved the application and issued an order authorizing communication interceptions to investigate three offenses enumerated on the statutory list for a period of thirty days.3

At the end of the thirty days, the Special Assistant Attorney General issued another memo authorizing agents to seek an extension of the wiretap order for an additional thirty days. A subsequent application requested permission to wiretap in investigation of nine offenses, two of which were not included on the statutory list of offenses subject to wiretapping.4 Moreover, the application incorrectly characterized these two non-enumerated offenses as enumerated. The application materials for the wiretap extension also included a second affidavit from the FBI agent. This fifty-three-page affidavit explained the progress of the investigation and the continuing need for wiretap authorization. The district court approved the extension and issued another order authorizing interception to investigate the same three enumerated offenses as the previous order.

On April 17, 2000, federal agents intercepted a telephone call between Mr. VanMeter and Robert James Smart, the owner of a business operating several Oklahoma nursing homes. During the telephone call Mr. Smart explained his nursing home business had lost about $50,000 in revenue from its business decision to certify its facilities for payment under both the Medicare and Medicaid systems during the previous year. Mr. Smart suggested that Mr. VanMeter falsify government records by planting a backdated letter into government files. This would allow Mr. Smart's company to fraudulently collect payment for medical services from the government. Mr. VanMeter agreed to the arrangement in exchange for "two percent."

Mr. VanMeter and Mr. Smart proceeded to enlist the help of Richard Pralle, one of Mr. Smart's employees, to perpetrate their deceit. After consulting with Mr. VanMeter on the demeanor and approach Mr. Pralle should use, Mr. Smart instructed Mr. Pralle to prepare a letter falsely backdated to May 7, 1999. Mr. VanMeter spoke directly with Mr. Pralle about how to explain to Oklahoma State Department of Health officials why the fraudulently backdated letter was not present in government files. When federal Health Care Finance Administration officials asked for further details about the fraudulent May 7, 1999 letter, Mr. VanMeter directed Mr. Pralle over the telephone to prepare additional letters corroborating the backdated letter. In an intercepted telephone call on April 28, 2000, Mr. Pralle read another proposed fraudulent letter to Mr. VanMeter in order to obtain advice and approval of its contents. Throughout, Mr. VanMeter instructed Mr. Pralle, either directly or through others, about what to say and write in order to conceal their plot.

Later, federal agents followed Mr. VanMeter to a meeting with Mr. Smart, where Mr. Smart delivered money to Mr. VanMeter. Following the meeting, Mr. VanMeter went to a legal gambling operation where federal agents observed him placing bets. The FBI arrested both Mr. VanMeter and Mr. Smart later that day. In a criminal complaint attempting to show probable cause for these arrests, an FBI agent included an affidavit reprinting incriminating quotes from the April 17, 2000 telephone conversation. After a pre-trial hearing, the district court denied motions from Mr. Smart and Mr. VanMeter to suppress tape recordings of the incriminating telephone conversations based on violations of the federal wiretapping statute. The defendants argued the court wiretap authorizations were procedurally flawed, the wiretaps were not "necessary," and inclusion of intercepted quotes in the criminal complaint improperly disclosed confidential information. At a joint trial, a jury convicted both men of violating 18 U.S.C. § 666 (theft or bribery concerning programs receiving federal funds). During sentencing, the district court applied a two-level upward adjustment to the sentencing guidelines premised upon Mr. VanMeter's management and supervision of Mr. Pralle. The district court sentenced Mr. VanMeter to thirty-six months in prison and fined him $50,000. This appeal followed.

DISCUSSION
I.

Mr. VanMeter argues the wiretap application materials and orders allowed "interception to be undertaken under the authority of Title III for non-enumerated offenses," thereby...

To continue reading

Request your trial
26 cases
  • U.S. v. Ramirez
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • March 16, 2007
    ...privilege, or inform principal suspects of the investigation outweighed modest potential evidentiary gains." United States v. VanMeter, 278 F.3d 1156, 1164 (10th Cir.2002). See also Castillo-Garcia, 117 F.3d at 1192. Similar fears were articulated in the Ramirez affidavit because many of th......
  • In re Arnold
    • United States
    • Court of Appeals of Washington
    • April 25, 2017
    ..., 654 F.3d 794, 800 (8th Cir.2011) ; Atonio v. Wards Cove Packing Co. , 810 F.2d 1477, 1478-79 (9th Cir.1987) ; United States v. VanMeter , 278 F.3d 1156, 1167 (10th Cir.2002) ; Smith v. GTE Corp. , 236 F.3d 1292, 1300 n.8 (11th Cir.2001). It is for this reason that the federal rules of app......
  • United States v. Flynn
    • United States
    • U.S. District Court — District of Columbia
    • December 16, 2019
    ...Mr. Flynn's first argument fails to appreciate the FBI's strategic decisions and investigative techniques. Cf. United States v. VanMeter , 278 F.3d 1156, 1159 (10th Cir. 2002) (FBI uses "a variety of conventional investigation techniques" to "unearth[ ] numerous leads"). Mr. Flynn's second ......
  • United States v. Rodella
    • United States
    • U.S. District Court — District of New Mexico
    • February 5, 2015
    ...in U.S.S.G. § 1B1.3." United States v. Powers, 578 F. App'x 763, 782 (10th Cir. 2014)(unpublished). See United States v. VanMeter, 278 F.3d 1156, 1166 (10th Cir. 2002)("It makes no difference Mr. Pralle may not have been responsible for violating 18 U.S.C. § 666. The district court correctl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT