United States v. Selby, No. 07-30183 (9th Cir. 1/15/2009)
| Decision Date | 15 January 2009 |
| Docket Number | No. 07-30183.,07-30183. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JANE G. SELBY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the District of Oregon; Anna J. Brown, United States District Judge, Presiding. D.C. No. CR 05-234-BR.
Per Olson, Hoevet, Boise & Olson, P.C., Portland, Oregon, for the appellant.
Karin J. Immergut, United States Attorney, Portland, Oregon; Kelly A. Zusman, Assistant United States Attorney, Portland, Oregon, for the appellee.
Before: Richard C. Tallman and Richard R. Clifton, Circuit Judges, and Edward R. Korman,* District Judge.
Per Curiam Opinion.
Jane Selby, a former official of the Bonneville Power Administration ("BPA") appeals her jury conviction for honest services wire fraud, in violation of 18 U.S.C. § 1343; making false claims and statements, in violation of 18 U.S.C. § 1001; and felony conflict of interest, in violation of 18 U.S.C. § 208. Selby contends the district court erred by denying her motions for judgment of acquittal because the evidence was insufficient to convict. We affirm the district court's decision.
Jane Selby held a significant administrative position at the BPA, a federal agency which produces and transmits power throughout the Pacific Northwest. She was one of three "Tier 3 managers" in the Transmission and Marketing Division and appears to have been the most trusted of the three by her supervisor, Charles Meyer, BPA's Vice President of Transmission and Sales. At the time of the events at issue here, Meyer had assigned Selby to a special detail to determine why various information technology projects were behind schedule and over budget, and to work alongside other Tier 3 managers in the department to help complete the projects. Selby's assignment was to help manage the transition to the new computer system, along with Mark Reynolds, the Tier 3 manager in charge of BPA's information technology staff, and Lorie Hoffman, the Tier 3 manager in charge of the transmission scheduling staff. Selby also served as acting Vice President when Charles Meyer was away.
Jane Selby is married to Scott Selby. In March 2002, Scott Selby was hired as a salesman by a software company called Knowmadic, Inc., during the time it was seeking to expand the scope of an existing agreement to sell software ("ASCI" or "ASCI/CWI") to BPA. Jane Selby had approached Knowmadic's Vice President about hiring her husband, telling him that Scott was Knowmadic then hired Scott and assigned him to the BPA account to work on-site at BPA's Vancouver, Washington, office. Scott earned a base salary plus commissions. His duties included the sale of Knowmadic products to BPA and persuading other public power customers to sign up to use the ASCI system.
BPA and Knowmadic entered into an initial agreement on May 11, 2001, for the purchase of ASCI software. Jane Selby was not involved in the negotiations for this initial procurement agreement. However, she subsequently promoted extensive additional use of Knowmadic's software and participated in the decision-making process to implement further use of Knowmadic's products. This activity led to her indictment for violating 18 U.S.C. § 208, which prohibits covered federal employees from certain kinds of participation in the decisionmaking process on federal contracts or matters in which the employee or her spouse as a financial interest, and related counts of wire fraud in violation of 18 U.S.C. § 1343, making a false statement during the course of an inspector general investigation of her conduct in violation of 18 U.S.C. § 1001, and witness tampering in violation of 18 U.S.C. § 1512.
A jury in the United States District Court for the District of Oregon returned a guilty verdict on the conflict of interest, wire fraud, and false statement counts, and a not guilty verdict on the witness tampering count. Selby was sentenced to five years probation on each count of conviction. On appeal, she challenges the sufficiency of the evidence on each of the three counts.
The district court had jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo whether sufficient evidence exists to support a conviction where the defendant moves for acquittal at the close of the government's evidence. See United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). Sufficient evidence exists when, "viewing the evidence in the light most favorable to the prosecution, [a] rational trier of fact could have found the elements of [each of] the crime[s] proved beyond a reasonable doubt." United States v. Bailon-Santana, 429 F.3d 1258, 1262 (9th Cir. 2005).
We first address Selby's claim that the evidence was insufficient to support her conviction under 18 U.S.C. § 208.
[1] Under 18 U.S.C. § 208(a), it is unlawful for an executive branch employee to participate "personally and substantially . .. through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise" in a "contract, claim, controversy . . . or other particular matter," with the knowledge that she or her spouse has a financial interest in the matter. At issue here is the scope of conduct proscribed by the statute. Selby contends her conduct related to the ASCI project did not fall within the scope of conduct contemplated by the statute. Specifically, she contends that the evidence was insufficient to establish that she participated substantially in the ASCI project, or that she knowingly violated the law.1 We consider the scope of each of these elements of the offense in light of the evidence adduced at trial supporting the verdict.
Selby argues that § 208 does not apply because her participation with the ASCI project occurred "post-procurement, i.e., after BPA had signed a contract with Knowmadic and after BPA had committed itself financially to the endeavor." Because her conduct "occurred during the implementation of the ASCI project, and had nothing to do with contracting, invoicing, or the taking of delivery of goods and services," she argues that the type of activity in which she engaged was "not proscribed by the statute." Id. The statute is broader than the narrow interpretation Selby urges upon us.
[2] We have not previously considered the precise scope of § 208's "participation" requirement. In United States v. Irons, 640 F.2d 872 (7th Cir. 1981), the Seventh Circuit undertook an extensive analysis of the legislative history of 18 U.S.C § 208, and concluded that it Id. at 877. We adopted much of this analysis in United States v. Jewell, 827 F.2d 586 (9th Cir. 1987),2 where we explained:
the import of the Seventh Circuit's statement is clear: liability for conflict of interest may be founded on a variety of acts leading up to the formation of a contract even if those acts are not specifically mentioned in the text of section 208(a). The section's "catch all" language ("participates . . . through decision, approval, recommendation, the rendering of advice, investigation, or otherwise....") was designed to allow prosecution on the basis of any type of action taken to execute or carry to completion a contract.
Id. at 587 (emphasis in original).
[3] We reiterate our agreement with the Seventh Circuit. The wording Congress chose is broader than the narrow interpretation Selby urges. We hold that where, as here, an employee suffers from a conflict of interest, liability may lie for actions taken after the initial procurement is authorized. Where Selby continued to actively participate in BPA's internal agency deliberations leading up to its decisions to expand the scope of the work to be done by Knowmadic, and where Selby continued to recommend or urge co-workers to recommend expansion of the contract, and the result was additional procurement resulting in additional sales commissions to be paid to her husband, Selby violated § 208.
This broad reading of § 208 comports with our sister circuits' approach to this statute. The Fifth Circuit, in United States v. Nevers, 7 F.3d 59, 61-62 (5th Cir. 1993), examined the legislative history of § 208 and concluded Congress had intended to correct the "fundamentally defective" predecessor statute, which "allow[ed] public officials to engage in a large number of activities which were wholly incompatible with the duties of public office" by broadening the provision to embrace "any participation on behalf of the Government in a matter in which the employee has an outside financial interest." Id. at 62 (emphasis in original). The Seventh Circuit in Irons confirms this reading of the statutory history, concluding the revised § 208 "was enacted with the purpose of broadening rather than narrowing the scope of covered business activity." Id. at 876. It rejected the contention that the statutory language limited its applicability to "matters generally preliminary to the formation of the contract." Id.
Selby claims the Sixth Circuit's approach in United States v. Ponnapula, 246 F.3d 576 (6th Cir. 2001), would preclude liability here because that circuit interpreted the phrase "personally and substantially" to exclude employees "performing purely ministerial or procedural duties." Specifically, the Sixth Circuit held that an attorney hired by the government to act as the...
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