United States v. Guertin

• Citation: 581 F.Supp.3d 90
• Decision Date: 24 January 2022
• Docket Number: Case No. 1:21-cr-262 (TNM)
• Parties: UNITED STATES, v. Paul Michael GUERTIN, Defendant.
• Court: U.S. District Court — District of Columbia

581 F.Supp.3d 90

UNITED STATES,

v.Paul Michael GUERTIN, Defendant.

Case No. 1:21-cr-262 (TNM)

United States District Court, District of Columbia.

Signed January 24, 2022

Christopher Brodie Brown, Assistant U.S. Attorney, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States.

MEMORANDUM OPINION

TREVOR N. McFADDEN, U.S.D.J.

Paul Michael Guertin stands accused of committing wire fraud, in violation of 18 U.S.C. § 1343 (Count I), and obstructing an official proceeding, in violation of 18 U.S.C. § 1512(c)(2) (Count II). He seeks dismissal of the Indictment, arguing that his alleged misconduct—false statements relating to a routine security clearance renewal—does not support an offense under either provision. The Court agrees. Although both statutes are notoriously capacious, they have limits, and the Government strays beyond those limits here.

I.

Guertin is a former Foreign Service Officer in the U.S. Department of State.¹ During part of his ten-year tenure, Guertin served at the U.S. Consulate in Shanghai adjudicating visa applications. He also served in the Department of State's Intelligence & Research Division in Washington, D.C. As a condition of his employment, Guertin had to pass periodic background-and security-clearance investigations.

In 2010 and 2016, Guertin allegedly lied on his background investigation questionnaire, the Standard Form 86 (SF-86). According to the Government, Guertin failed to disclose certain information required by the SF-86—a sexual relationship with a foreign national whose visa application he had adjudicated; certain financial problems arising out of gambling activity; and an undisclosed loan agreement with two Chinese nationals collateralized by Guertin's home.² Guertin also allegedly lied to State Department investigators during the background investigation to conceal this information. A federal grand jury indicted Guertin, charging him with wire fraud, see 18 U.S.C. § 1343 (Count I), and obstructing an official proceeding, see id. § 1312(c)(2) (Count II). Indictment ¶¶ 20–36, 37–38. Guertin now moves to dismiss the Indictment, arguing the Government has not alleged facts supporting a conviction under either Count. See Mot. to Dismiss (MTD), ECF No. 21.

The motion is ripe for resolution and the Court has jurisdiction. See 18 U.S.C. § 3231.

II.

An indictment must contain "a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c). A defendant may move to dismiss an indictment on grounds that it fails to state an offense. See Fed. R. Crim. P. 12(b)(3)(B)(v). "The operative question is whether the[ ] allegations, if proven, are sufficient to permit a jury to find that the crimes charged were committed." United States v. Payne , 382 F. Supp. 3d 71, 74 (D.D.C. 2019) (cleaned up).

III.

The Indictment charges Guertin with wire-fraud in violation of 18 U.S.C. § 1343 and obstructing an official proceeding in violation of 18 U.S.C. § 1512(c). Because the facts alleged in the Indictment cannot support a conviction under either provision, both Counts fail.

A.

The federal wire-fraud statute prohibits engaging in "any scheme or artifice to defraud" using the wires for the purpose of "obtaining money or property." 18 U.S.C. § 1343 ; see also Kelly v. United States , ––– U.S. ––––, 140 S. Ct. 1565, 1571, 206 L.Ed.2d 882 (2020). Count I of the Indictment alleges Guertin

devised and intended to devise a scheme to defraud and to obtain money and property from the State Department by means of materially false and misleading statements, and by withholding and concealing information, on his SF-86 background investigation questionnaires and in interviews with State Department background investigators.

...

It was the purpose of the scheme to defraud for the defendant ... to unlawfully enrich himself by maintaining his State Department employment and salary [.]

Indictment ¶¶ 21–22 (emphasis added).

The question presented here is whether those factual allegations state an offense under § 1343. The plain meaning of § 1343 and Supreme Court precedent both point to the same conclusion—a scheme to "maintain" a pre-existing salary cannot support a wire-fraud conviction. Count I cannot stand.

1.

To start, the Indictment does not, on its face, allege conduct falling within the plain meaning of § 1343.

Guertin allegedly sought to "maintain[ ] ... his ... State Department employment and salary." Indictment ¶ 22. But a scheme to "maintain" something is not synonymous with a scheme to "obtain" the same thing. The word "obtain" generally connotes affirmative action to secure something outside one's possession. See Obtain, Black's Law Dictionary (11th ed. 2019) (defining the term as to "bring into one's own possession; to procure"). The word "maintain," by contrast, connotes action to preserve the status quo. See Maintain , id. (defining the term as "[t]o continue in possession of (property etc.)"). The upshot is that to state an offense under the plain meaning of § 1343, the Government must allege a defendant's scheme sought to gain possession of something not previously in his possession. And by extension, the Indictment's allegation that Guertin merely sought to "maintain" his salary does not suffice.

The Government says the obtain/maintain distinction is irrelevant on these facts: "[I]f the alternative, absent fraud, is that the defendant is likely to lose his job ... then the fraudulent scheme clearly is intended to obtain money or property that he would not otherwise have obtained, namely, his continued salary." Opp. 11. There are three problems with that argument.

First , the Government relies on tortured semantics—it is a contradiction in terms to say a defendant's scheme enables him to "obtain" a pre-existing contractual right like a "continued salary." The only way to make sense of that contradiction would be to ignore the active, affirmative connotations of the word "obtain." The Court will not do so. Cf. Sebelius v. Cloer , 569 U.S. 369, 376, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013) (explaining that "unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning").

Second , the Government musters no binding or persuasive authority to support its interpretation of "obtain." Most of the Government's cited cases involve schemes to obtain something new—a job, a promotion, a grant, or bonus—not schemes to "obtain" a "continued salary." See Opp. 4–7; United States v. Granberry , 908 F.2d 278, 279 (8th Cir. 1990) (upholding conviction for defendant who allegedly falsified his criminal history to obtain a job as a school bus driver); United States v. Doherty , 867 F.2d 47, 56 (1st Cir. 1989) (upholding conviction for scheme which sought "appointment to or promotion within police departments" to receive "the salary or increased salary by reason of appointment to or promotion within the police department").

To be sure, Granberry invoked sweeping language that supports the Government's argument. See Granberry , 908 F.2d at 280 ("What the School ... wanted was a competent school-bus driver who was truthful and had not been convicted of a felony, and that is not what it got."). But judicial opinions are not statutes, and its holding—upholding a conviction for a fraudulent scheme to secure new employment—does not get the Government where it needs to go. The Government is left with one on-point case supporting its position: a trial court opinion that predates persuasive appellate authority to the contrary. See United States v. Feng Tao , 499 F. Supp. 3d 940, 953–54 (D. Kan. 2020) (refusing to dismiss wire fraud charge for professor who failed to notify university of his violation of conflict-of-interest policies).

Indeed, the only circuit courts to address the issue have rebuffed the Government's salary-maintenance theory. See United States v. Yates , 16 F.4th 256, 266 (9th Cir. 2021) ; United States v. Goodrich , 871 F.2d 1011, 1013–14 (11th Cir. 1989). Consider Yates . There, the Government charged two bank managers with conspiring "to conceal the true financial condition of the Bank" to deceive "the Board of Directors, shareholders (current and prospective), regulators and the public." 16 F.4th at 263 ; see also 18 U.S.C. § 1349 (making it unlawful to "conspire[ ] to commit any offense under this chapter"); id. § 1344 (making it unlawful to "knowingly execute .... a scheme or artifice ... to defraud a financial institution").³ At trial, the Government argued defendants had deprived the bank of three property interests: (1) "accurate financial information in the bank's books and records"; (2) "the defendants’ salaries [and] bonuses"; and (3) "the use of bank funds." Id. at 264. The court held theory (2), a salary-maintenance theory, could not support conviction. See id. at 266 (noting the "difference between a scheme whose object is to obtain a new or higher salary and scheme whose object is to deceive an employer while continuing to draw an existing salary.").⁴ Eliding the difference between the two "would criminalize a range of commonplace conduct." Id. at 267. The Government offers no appellate precedent contravening this straightforward reasoning.

Third , if there were any remaining question whether "obtaining money or property" can mean "maintaining money or property," the Court must resolve that ambiguity in Guertin's favor. See Yates v. United States , 574 U.S. 528, 547–48, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) ("[I]f our recourse to traditional tools of statutory construction leaves any doubt about [ ] meaning ... we would invoke the rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity." (cleaned up)).

Because the Indictment alleges that Guertin sought to "maintain," not "obtain" a salary, it does not state an offense within the plain meaning of § 1343. And this is not just semantics. The Government could not have sustained an "obtai...