United States v. Musgrave

• Decision Date: 31 July 2014
• Docket Number: No. 13–3872.,13–3872.
• Citation: 761 F.3d 602
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Paul David MUSGRAVE, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

761 F.3d 602

UNITED STATES of America, Plaintiff–Appellant,

v.Paul David MUSGRAVE, Defendant–Appellee.

No. 13–3872.

United States Court of Appeals, Sixth Circuit.

Argued June 19, 2014.

Decided and Filed July 31, 2014.

ARGUED:Mary Beth Young, United States Attorney's Office, Columbus, OH, for Appellant. Christian J. Grostic, Kushner & Hamed Co., L.P.A., Cleveland, OH, for Appellee. ON BRIEF:Mary Beth Young, Alex R. Sistla, United States Attorney's Office, Columbus, OH, for Appellant. Christian J. Grostic, Kushner & Hamed Co., L.P.A., Cleveland, OH, for Appellee.

Before: SILER, CLAY, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

A jury found Paul Musgrave guilty of one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud. The district court sentenced him to one day of imprisonment with credit for the day of processing—a downward variance from his Guidelines range of 57 to 71 months' imprisonment and below the government's recommendation of 30 months' imprisonment. On appeal, the government asserts that Musgrave's one-day sentence is substantively unreasonable. For the following reasons, we vacate the district court's sentence and remand for resentencing.

I.

A.

In 2008, Paul Musgrave, a certified public accountant, became involved in a tire-recycling venture. Musgrave was referred to Raymond Goldberg, who owned an Australian company called Rubber Solutions, as a supplier for the necessary equipment. Musgrave was unaware at the time that Goldberg had failed in nine previous tire-recycling ventures. Musgrave and Goldberg eventually agreed to form Dayton International Tire Recycling, which was to operate a facility in Troy, Ohio. Pursuant to the Operating Agreement, Musgrave owned 81% of Dayton International, and Intercontinental Trading British Virgin Islands (ITBVI), a shell corporationwholly owned by Goldberg, owned the other 19%. The last page of the Operating Agreement specified that Goldberg was the manager of ITBVI, but it did not reveal that ITBVI was wholly owned by Goldberg.

Dayton International and Goldberg's Rubber Solutions entered into a purchase agreement under which Rubber Solutions would provide equipment and installation for the tire-recycling plant for $2.3 million. Musgrave invested around $300,000 in Dayton International, and Goldberg invested about $350,000 in the form of a “cost reduction,” i.e., he discounted the purchase price of the equipment supplied by Rubber Solutions by about $350,000. To finance the remainder of the purchase price, Musgrave applied for a loan, guaranteed by the Small Business Administration (SBA), through Mutual Federal Savings Bank. Musgrave was responsible for securing the loan on behalf of Dayton International.

In order to have the loan proceeds disbursed to Goldberg's bank in Australia, Musgrave was required to obtain an international letter of credit. Musgrave applied for a letter of credit with U.S. Bank, and when choosing the terms of the letter of credit, Musgrave selected “partial shipments not allowed”—if all items were not contained in one shipment, the buyer (Dayton International) was not required to pay the seller (Rubber Solutions). In May 2009, all of the equipment arrived except the tire shredder—a “vital” piece of equipment. Musgrave apparently was livid. He contacted the FBI, the SBA Office of Inspector General, the SEC, and Australian authorities, which prompted the FBI to commence an investigation. In the meantime, however, Goldberg falsified a packing slip showing that the shredder would come from Australia (it was supposed to ship from Oregon), and U.S. Bank honored the letter of credit and transferred the $1.7 million to Rubber Solutions's bank. Goldberg testified that Musgrave directed him to falsify the packing slip. Rubber Solutions, however, had overdrawn its accounts, and when the $1.7 million arrived, about half of the money was allocated against the overdraft. The balance Goldberg appropriated to pay his creditors. The $1.7 million loan to be used for Dayton International's equipment was gone, and Musgrave lost his $300,000 investment in the failed venture.

B.

In December 2011, Musgrave and Goldberg were indicted. Goldberg pled guilty to one count of misprision of felony, and the government agreed to recommend a sentence of three years of probation, restitution, and a special assessment. Musgrave proceeded to trial and was tried on 10 counts: one count of conspiracy to commit wire and bank fraud and to make false statements to a financial institution in violation of 18 U.S.C. § 1349; six counts of wire fraud in violation of 18 U.S.C. § 1343; one count of bank fraud in violation of 18 U.S.C. § 1344; and two counts of making false statements in a loan application in violation of 18 U.S.C. § 1014.

The government alleged that Musgrave's scheme to defraud Mutual Federal and the SBA involved the concealment or misrepresentation of four facts. The first was Goldberg's relationship with ITBVI. The government produced an email from Musgrave to Goldberg which read: “The strategy is to isolate [ITBVI] from [Goldberg] and Rubber Solutions.” Goldberg testified that he understood this to mean that Goldberg and Musgrave were to hide from Mutual Federal the fact that ITBVI was associated with Goldberg and Rubber Solutions. Musgrave did not disclose to Gary Enz, Mutual Federal's loan officer, that Goldberg was the 100% owner of ITBVI. Enz testified that he was informed by Musgrave that “a very good friend” would provide capital. And on the SBA loan application Musgrave was asked: “Do you buy from, sell to, or use the services of any concern in which someone in your company has a significant financial interest? If yes, provide details on a separate sheet of paper labeled Exhibit L.” Musgrave did not identify Goldberg's interest in Rubber Solutions and ITBVI, nor did he provide an Exhibit L.

The second was ITBVI's cash injection into Dayton International. The SBA conditionally agreed to guarantee the loan if Dayton International could establish a cash injection of at least $712,822 prior to disbursement. Goldberg testified that Musgrave directed Rubber Solutions's Chief Financial Officer to fabricate invoices showing that Dayton International received a cash injection from ITBVI when it in fact received a cost reduction. Investigators discovered both the initial invoice, which listed ITBVI's contribution as a “joint venture allowance,” and the false invoice, which listed ITBVI's contribution as “Paid.”

The third concerned Musgrave's selection of “partial shipments not allowed” as the condition of payment on the international letter of credit. Goldberg testified that he falsified a packing list indicating that the shredder was coming from Australia at the direction of Musgrave, causing U.S. Bank to disburse the $1.7 million pursuant to the letter of credit.

The fourth was the source of Musgrave's cash injection. The government alleged that Musgrave falsely stated that he provided his cash injection from personal savings and home equity when in fact the cash injection came from either one of Musgrave's other companies or his stepfather.

The jury returned a verdict convicting Musgrave of four counts and acquitting him of six. Musgrave was convicted of conspiracy to commit wire and bank fraud and to make false statements to a financial institution; two counts of wire fraud; and one count of bank fraud. His Guidelines range was 57 to 71 months' imprisonment.

C.

In considering the 18 U.S.C. § 3553(a) factors, the district court first noted that Musgrave “comes to this courtroom with that history of no criminal convictions and conduct which this judge having heard at trial believes reflects that in the heat of the moment he cut some corners.” In considering the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment, the court noted that Musgrave had no criminal history and that he had “decades and decades of service to the community and a family.” The court explained that in considering just punishment, it could not ignore the fact that Musgrave had lost $300,000 of his own money in the failed Dayton International venture, that he had “been through four years of hell,” that he had “incurred substantial legal fees,” that he was likely to lose his CPA license, that he would be required to pay $1.7 million in restitution, and that he would forever be a convicted felon. The district court acknowledged that Musgrave suffered from sleep apnea, which could be fatal if not properly treated, and that employees at another of Musgrave's companies relied on him.

The court then explained the nature and circumstances of the offense: “It's a fraud offense. I think he cut corners. I think he made inaccurate statements and a jury of his peers found unanimously that that was true.” The court emphasized that the offense was “a serious offense” and that “[w]hite-collar criminals don't simply get a slap on the wrist. They, like all others, reap what they sow.”

In describing Musgrave's history and characteristics, the court stated that “he made mistakes in judgment here and has been held accountable and has been punished significantly before I even act,” referring to Musgrave's personal financial loss, the four years of litigation, the legal fees, the loss of his CPA license, the restitution order, and the fact of his felony convictions. In considering the kind of sentences available, the court queried whether imprisonment “would serve any greater societal purpose” or deter him from future frauds. The court concluded that deterrence would not be served by prison time largely because he had been “punished extraordinarily” with “[f]our years of hell, a loss of 300,000, and a receipt of zero from the proceeds, racking up legal fees, losing his CPA license, being required to...