United States v. Boutte

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 27, 1994
• Docket: 93-04128
• Status: Published

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 93-4128

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GREGORY BOUTTE,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas

(January 27, 1994)

Before VAN GRAAFEILAND,* SMITH and WIENER, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Gregory Boutte appeals from a judgment convicting him on five

counts of wire fraud (18 U.S.C. § 1343), five counts of submitting

false claims to a federal agency (18 U.S.C. § 287) and thirteen

counts of making false statements to a federal agency (18 U.S.C.

§ 1001). Boutte contends that the district court committed

reversible error in denying certain pretrial motions, making an

improper evidentiary ruling and giving defective instructions to the

* Circuit Judge of the Second Circuit, sitting by designation. jury. He also argues that the district court erroneously calculated

his sentence. Finding no merit in these contentions, we affirm.

During government fiscal years 1988 through 1991, Boutte and his

accounting partnership, Boutte, Elmore & Company, operated the

Triplex Minority Business Development Center. Triplex was one of a

number of development centers funded by the United States Department

of Commerce for the purpose of promoting the growth of minority-owned

businesses. The Department of Commerce awarded Triplex funding of

$165,000 for each fiscal year. To establish that Triplex continued

to meet the goals of the program, Boutte and the partnership were

required to submit quarterly narrative reports ("QNRs") to the

Department. The QNRs summarized the level of contract opportunities

or financing that minority businesses had received with the

assistance of Triplex. They also identified the partnership

personnel assigned to Triplex and the percentage of time these

employees devoted to Triplex matters. Triplex's failure to report a

sufficient amount of services provided to minority businesses could

jeopardize the continued federal funding of the center.

The Triplex QNRs from 1988 through 1991 stated that Triplex

rendered assistance on numerous occasions to W.B. Construction,

J. Allen Contractors and Family Construction. Indeed, these

businesses were the purported recipients of most of the assistance

Triplex reported during this period. The majority of the QNRs also

identified the partnership personnel assigned to Triplex and

indicated the percentage of each person's time allegedly devoted to

2 Triplex matters, the percentages varying from 35 percent to

100 percent.

Employees of W.B. Construction, J. Allen Contractors, Family

Construction and other businesses testified that they never received

the bulk of the assistance reported in Triplex's QNRs. Moreover,

Boutte and other partnership employees solicited and received from

some of these businesses copies of construction contracts that were

entered into without the help of Triplex. Boutte also obtained

information about contracts and financing from records the

partnership maintained as regular accountant for certain businesses,

and Boutte fraudulently added these contracts and financing to the

QNRs to bolster Triplex's assistance statistics. In addition, both

clients and employees of Boutte, Elmore & Co. testified that

individuals assigned to work for Triplex devoted significantly less

of their time to Triplex matters than was reported in the QNRs.

Boutte attempted to disguise these discrepancies by creating two

different sets of timesheets --- one for Triplex and one for the

partnership.

After being fired, Agustus Bodah, a partnership employee who was

reported to have devoted 100 percent of his time to Triplex,

contacted Commerce officials to report the occurrence of fraudulent

activities. Federal agents then obtained a search warrant for the

Triplex offices and a storage warehouse, and seized voluminous

documents at both locations. On October 17, 1991, a 23-count

indictment was returned against Boutte, the partnership and several

employees. Boutte moved before trial for production of the search

3 warrant affidavit, for leave to file a suppression motion within a

reasonable time after receiving the affidavit, and for a bill of

particulars. The Government opposed these motions and requested that

the search warrant affidavit be reviewed in camera because it

disclosed the identity of a confidential informant.

The district judge denied all three motions. With regard to the

warrant affidavit, he said that he had reviewed it in camera and

found it more than sufficient to support the issuance of the warrant.

Defense counsel was given a copy of the affidavit during the trial.

However, it was not made part of the record, and we have no knowledge

of its contents except that we are given to understand that the

confidential informant was Bodah.

We must express some wonderment as to why the district court

deemed it necessary to protect the identity of the informant Bodah

and why the warrant affidavit could not have been redacted

sufficiently to remove Bodah's name. Having said this, we hasten to

add that Boutte has not disclosed any prejudice requiring reversal.

Boutte has had a copy of the warrant affidavit in his possession

since June 29, 1992, and he has not deemed it necessary to get it

before this Court. We assume that, if the affidavit was inadequate

or if any of its contents were prejudicial, Boutte would have made

certain that a copy of the affidavit was in our hands. We disagree

with Boutte's argument that simply "by thwarting the application of

the Federal Rules of Criminal Procedure, the trial court deprived the

appellant of due process of law under U.S. CONST. amend. V."

(Appellant's Brief 13) The Rules of Criminal Procedure per se are

4 not the equivalent of constitutional dogma. Boutte must show with

some specificity why the district court's ruling hampered him in his

defense. See United States v. Diaz, 655 F.2d 580, 585-89 (5th Cir.

1981); United States v. Hare, 589 F.2d 242, 243 (5th Cir. 1979); see

also United States v. Mueller, 902 F.2d 336, 341 (5th Cir. 1991).

Boutte's argument that the district court's rulings deprived him

of his Sixth Amendment right to the benefit of counsel contains no

citation of supporting authority, and, of course, there is none.

The district court did not abuse its discretion in denying

Boutte's motion for a bill of particulars. Boutte requested the

identification of an individual whose working hours were at issue in

counts 1-5, and who was described only as a Triplex "business

specialist." Boutte also sought identification of the "various

clients" who, according to counts 11-23 of the indictment, did not

receive the services reported in Triplex's QNRs. The information

Boutte sought was available to him in the QNRs he submitted to the

Department of Commerce, and he failed to establish that the district

court's ruling resulted in "`actual surprise at trial and . . .

prejudice to his substantial rights.'" United States v. Moody, 923

F.2d 341, 351 (5th Cir.) (quoting United States v. Marrero, 904 F.2d

251, 258 (5th Cir.), cert. denied, 498 U.S. 1000 (1990)), cert.

denied, 112 S. Ct. 80 (1991); see United States v. Diecidue, 603 F.2d

535, 563 (5th Cir. 1979), cert. denied, 445 U.S. 946 (1980).

Boutte also contends that the district judge erred in

instructing the jury on the concept of deliberate ignorance.

Although Boutte does not challenge the correctness of the instruction

5 as an abstract statement of the law, he asserts that the evidence

below did not support the instruction because it created no inference

that he purposely contrived to avoid becoming aware that the QNRs

contained incorrect and deceptive statements.

A deliberate ignorance instruction must not be simply an

abstract statement of the law; it must state the legal principles as

they might be applied to the facts of the case being tried. United

States v. Cartwright, 6 F.3d 294, 300 (5th Cir. 1993). There is

nothing to indicate that Boutte consciously avoided becoming aware of

the fraudulent activities related to Triplex. Rather, the evidence

shows that Boutte took steps to become actively involved in the

illegal conduct. For example, he personally solicited copies of

contracts from certain construction firms for deceptive inclusion in

the QNRs; he personally assigned Triplex personnel to perform work

for the partnership that was charged to Triplex; he instructed

Triplex personnel to prepare two sets of time sheets in order to

disguise their partnership work, and he personally reviewed these

dual time sheets. His claim that he did not believe his acts were

wrongful does not demonstrate that he took steps to avoid learning of

the illegal conduct at the time of its commission. See United States

v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990).

To the extent that the district court's charge was error,

however, the error was harmless. In Cartwright, supra, this Court

held that, where there is no evidence of conscious ignorance, a

deliberate ignorance instruction "is `surplusage' and thus does `not

create the risk of prejudice.'" 6 F.3d at 301 (quoting United States

6 v. Samuel, 980 F.2d 1443 (5th Cir. 1992) (unpublished), cert. denied,

113 S. Ct. 2967 (1993)). Giving an instruction on deliberate

ignorance also constitutes harmless error where substantial evidence

of actual knowledge exists. See id.; United States v. Rivera, 944

F.2d 1563, 1572-73 (11th Cir. 1991).

We find no merit in Boutte's contention that with respect to the

misrepresentations alleged in counts 6-10 of the indictment, the

district court's charge omitted the allegations in the indictment

specific to his case. Although the district judge did not recite the

specific language of the indictment with respect to counts 6-10, he

did not permit the jury to convict Boutte "upon a factual basis that

effectively modifies an essential element of the offense charged."

United States v. Doucet, 994 F.2d 169, 172 (5th Cir. 1993). The

district judge properly set forth the elements of the offense

described in 18 U.S.C. § 287 and correctly paraphrased the language

of that section. He predicated conviction upon a factual basis that

satisfied the essential elements of section 287. Moreover, there was

little or no variance between the allegations of counts 6-10 and the

evidence introduced at trial. Thus, no uncertainty exists as to

whether the jury convicted Boutte for an offense not charged in the

indictment. See United States v. Young, 730 F.2d 221, 223-24 (5th

Cir. 1984).

We also reject Boutte's contention that the district court erred

in failing to instruct the jury adequately on unanimity with respect

to counts 6-10 and counts 11-23. With respect to counts 6-10, the

7 district judge instructed the jury solely with respect to the filing

of improper claims, not QNRs:

For you to find any defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt. First, that such defendant knowingly presented to an agency of the United State a false or fraudulent claim against the United States, and second, that such defendant knew that the claim was false or fraudulent.

These claims, entitled "Request for Funds," were admitted into

evidence as exhibits 64-68; they are the specific claims set forth

and identified in the indictment. Boutte is wrong, clearly wrong, in

his contention that under the court's charge the jury could have

convicted him on counts 6-10 of either making false claims for

payment or filing false QNRs. Moreover, the fact that the jury might

have based its finding of guilt based upon either the falsity or

fraudulence of the filed claims did not vitiate the verdict. See

Turner v. United States, 396 U.S. 398, 420 (1970); Smith v. United

States, 234 F.2d 385, 389 (5th Cir. 1956); Heflin v. United States,

223 F.2d 371, 373-74 (5th Cir. 1975); with specific reference to 18

U.S.C. § 287 see United States v. Murph, 707 F.2d 895, 896-97 (6th

Cir.), cert. denied, 464 U.S. 844 (1983); United States v. Maher, 582

F.2d 842, 846-47 (4th Cir. 1978), cert. denied, 439 U.S. 1115 (1979).

Boutte's further contention that, although the judge's charge

"included some general language requiring unanimity," it "did not

require the jury to be unanimous as to which of the two theories for

conviction, i.e., either `fraudulent' claims for payment or merely

`false' quarterly reports, supported a guilty verdict in Counts 6

through 10" (Appellant's Brief 32) simply repeats appellant's

8 misinterpretation of the court's charge already discussed in the

preceding paragraphs.

Counts 11-23, on the other hand, deal clearly with the making of

false and fraudulent QNRs, each count referencing a specific, dated

report. The district court instructed the jurors that their verdict

must be unanimous on each count. No request for a more detailed

instruction on unanimity was made, and the suggestions for greater

specificity contained in appellant's brief, e.g., the jury must

"unanimously agree on the factual basis," are meritless.

Boutte next asserts that the district court erred in allowing

the reading in evidence of the letter which Bodah wrote to the

Department of Commerce to initiate the Government's investigation of

Boutte's activities. The letter was not used to refresh Bodah's

recollection. Neither was it offered as a prior consistent

statement. Instead, it was offered as a lead-in or guide for Bodah's

oral testimony. Its use in this manner was improper. However,

Boutte's counsel did not object to this use of the letter, and the

error in its use was not so "fundamental as to have resulted in a

miscarriage of justice." United States v. Garcia, 995 F.2d 556, 561

(5th Cir. 1993) (per curiam); Ettelson v. Metropolitan Life Ins. Co.,

164 F.2d 660, 667 (3d Cir. 1947); Buckley v. United States, 33 F.2d

713, 717 (6th Cir. 1929). Its contents were largely cumulative to

the extensive testimony of numerous witnesses, including Bodah

himself.

Boutte's final contention is that the district court erred in

increasing his Guideline-controlled sentence by four levels for his

9 role in the offense as an organizer or leader. Boutte asserts that

the criminal activity for which he was convicted did not involve five

or more participants within the meaning of the Guidelines. However,

the district court did not clearly err in finding by a preponderance

of the evidence that the Guideline requirement was satisfied. See

generally United States v. Mergerson, 4 F.3d 337, 347 (5th Cir.

1993). In addition to Boutte himself, see United States v.

Barbontin, 907 F.2d 1494, 1498 (5th Cir. 1990), the evidence

presented at trial indicated that at least four other employees

participated in the fraudulent activities leading to Boutte's

conviction. Contrary to Boutte's assertions, these individuals need

not have been charged or convicted with him in order to count as

participants in the criminal activity; they need only have

participated knowingly in some part of the criminal enterprise. See

United States v. Alfaro, 919 F.2d 962, 967 (5th Cir. 1990); U.S.S.G.

§ 3B1.1, comment. (n.1). Boutte has failed to demonstrate that these

Triplex employees did not knowingly play a role in the fraudulent

activities and that the district court's finding of participation was

clearly erroneous.

The judgment of conviction is AFFIRMED.