Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2114 (D.C. No. 1:17-CR-03338-JMC-SCY-4) GEORGE LOWE, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and KELLY, Circuit Judges.** _________________________________
Defendant-Appellant George Lowe appeals from the district court’s denial of
his motion to dismiss an indictment as untimely and the denial of his request for an
evidentiary hearing. Aplt. App. at 193, 222–32. Indicted on November 28, 2017,
along with three codefendants, Mr. Lowe was charged with one count of conspiracy
to defraud the government with respect to claims, 18 U.S.C. § 286; one count of
conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349; and eighteen counts of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 2
false, fictitious, or fraudulent claims, 18 U.S.C. § 287, and aiding and abetting the
same, 18 U.S.C. § 2(a). Aplt. App. 22, 50–56, 61–64. Mr. Lowe entered a
conditional guilty plea as to the first count. Id. at 238–52. The district court
sentenced Mr. Lowe to the lesser of one day’s imprisonment or time served and three
years’ supervised release and ordered him to pay over $1.2 million in restitution. Id.
at 270–71, 274. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
The alleged fraudulent activity in this case concerned funding for the Big
Crow Program Office (“BCPO”), a U.S. Army warfare assessment program based at
Kirtland Air Force Base. Aplt. App. 22. The BCPO was originally funded by the
Army, but after funding diminished, it received funds on a reimbursement basis and
through supplemental Congressional appropriations. Id. at 22–23. The indictment
alleged that beginning around 2004 and continuing through 2009, codefendant Milton
Boutte, BCPO Director, conspired with Mr. Lowe and others to charge thousands of
dollars for Mr. Lowe’s lobbying efforts on behalf of the BCPO, even though it had no
funding or authorization for lobbying. Id. at 23.
Mr. Lowe agreed to lobby government officials for BCPO funding, initially
charging $15,000 per month and later demanding higher amounts. Id. at 31. To pay
Mr. Lowe, other codefendants fraudulently obtained contracts under the Small
Business Act Business Development Program on behalf of two business entities
owned by codefendants (Miratek Corporation and Vartek, LLC). Id. at 23. Although
2 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 3
the funds were allocated to each business through the program to provide technical
support to the BCPO, codefendants improperly diverted funds to pay for Mr. Lowe’s
unauthorized lobbying, representing that Mr. Lowe was a “project manager” of each
business entity. Id. at 30–33, 36–37, 48–49. Mr. Lowe submitted invoices for
fraudulent hours of work to these entities as part of the conspiracy with codefendants.
Id. at 33, 49, 241–42.
After being indicted in November 2017, Mr. Lowe filed a motion to dismiss
the indictment for pre-indictment delay. Id. at 68–85. Mr. Lowe argued that under
the Due Process Clause he was prejudiced by the government’s eight-year delay in
bringing charges because: (1) he could not subpoena members of Congress and their
staffs to “substantiate his legitimate and lawful activity” as many members were
either dead or no longer in office; (2) he could not access certain financial documents
to show that he only received $1.2 million for lobbying, not the amount alleged by
the government (over $3 million); and (3) critical witnesses were no longer available
because of the passage of time. Id. at 68–72. He also requested an evidentiary
hearing to show that the government’s delay in bringing charges was unnecessary and
was instead “for the purpose of benefitting the government.” Id. at 83–85. Finally,
Mr. Lowe made arguments regarding the statute of limitations, id. at 75–78, but he
does not raise them here, conceding that his alleged criminal conduct falls within the
3 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 4
statute of limitations.1
On August 21, 2018, the district court denied Mr. Lowe’s motion to dismiss
the indictment. Id. at 232. First, while the district court assumed without deciding
that Mr. Lowe could show actual prejudice, it found that his Due Process claim failed
because he could not “establish that the government intentionally or recklessly
delayed bringing the indictment[.]” Id. at 228. Second, the district court denied Mr.
Lowe’s request for an evidentiary hearing because it was based on “bare-bones
assertions” that the government had “no apparent reason” to wait so long to bring an
indictment and failed to make specific or nonconjectural allegations about what facts
an evidentiary hearing would uncover. Id. at 229–30. Finally, the district court
rejected Mr. Lowe’s statute of limitations arguments. Id. at 222–26.
Discussion
We review a district court’s denial of a motion to dismiss for pre-indictment
delay for abuse of discretion. United States v. Garcia, 74 F.4th 1073, 1094–95 (10th
Cir. 2023) (omitting subsequent denials of certiorari). We also review the district
court’s denial of a request for an evidentiary hearing for abuse of discretion. United
1 In his “Statement of the Issues,” Mr. Lowe raises the question of whether 18 U.S.C. § 3287 and the 2001 Congressional authorization of use of military force extend the statute of limitations for fraud “without limitation[.]” Aplt. Br. at 2–3. However, later in his brief, Mr. Lowe stated he “does not contest the district court’s reasoning that the statute of limitation for the crimes alleged against him were tolled pursuant to 18 U.S.C. § 3287
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Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 4, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2114 (D.C. No. 1:17-CR-03338-JMC-SCY-4) GEORGE LOWE, (D. N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before BACHARACH, BALDOCK, and KELLY, Circuit Judges.** _________________________________
Defendant-Appellant George Lowe appeals from the district court’s denial of
his motion to dismiss an indictment as untimely and the denial of his request for an
evidentiary hearing. Aplt. App. at 193, 222–32. Indicted on November 28, 2017,
along with three codefendants, Mr. Lowe was charged with one count of conspiracy
to defraud the government with respect to claims, 18 U.S.C. § 286; one count of
conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349; and eighteen counts of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 2
false, fictitious, or fraudulent claims, 18 U.S.C. § 287, and aiding and abetting the
same, 18 U.S.C. § 2(a). Aplt. App. 22, 50–56, 61–64. Mr. Lowe entered a
conditional guilty plea as to the first count. Id. at 238–52. The district court
sentenced Mr. Lowe to the lesser of one day’s imprisonment or time served and three
years’ supervised release and ordered him to pay over $1.2 million in restitution. Id.
at 270–71, 274. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Background
The alleged fraudulent activity in this case concerned funding for the Big
Crow Program Office (“BCPO”), a U.S. Army warfare assessment program based at
Kirtland Air Force Base. Aplt. App. 22. The BCPO was originally funded by the
Army, but after funding diminished, it received funds on a reimbursement basis and
through supplemental Congressional appropriations. Id. at 22–23. The indictment
alleged that beginning around 2004 and continuing through 2009, codefendant Milton
Boutte, BCPO Director, conspired with Mr. Lowe and others to charge thousands of
dollars for Mr. Lowe’s lobbying efforts on behalf of the BCPO, even though it had no
funding or authorization for lobbying. Id. at 23.
Mr. Lowe agreed to lobby government officials for BCPO funding, initially
charging $15,000 per month and later demanding higher amounts. Id. at 31. To pay
Mr. Lowe, other codefendants fraudulently obtained contracts under the Small
Business Act Business Development Program on behalf of two business entities
owned by codefendants (Miratek Corporation and Vartek, LLC). Id. at 23. Although
2 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 3
the funds were allocated to each business through the program to provide technical
support to the BCPO, codefendants improperly diverted funds to pay for Mr. Lowe’s
unauthorized lobbying, representing that Mr. Lowe was a “project manager” of each
business entity. Id. at 30–33, 36–37, 48–49. Mr. Lowe submitted invoices for
fraudulent hours of work to these entities as part of the conspiracy with codefendants.
Id. at 33, 49, 241–42.
After being indicted in November 2017, Mr. Lowe filed a motion to dismiss
the indictment for pre-indictment delay. Id. at 68–85. Mr. Lowe argued that under
the Due Process Clause he was prejudiced by the government’s eight-year delay in
bringing charges because: (1) he could not subpoena members of Congress and their
staffs to “substantiate his legitimate and lawful activity” as many members were
either dead or no longer in office; (2) he could not access certain financial documents
to show that he only received $1.2 million for lobbying, not the amount alleged by
the government (over $3 million); and (3) critical witnesses were no longer available
because of the passage of time. Id. at 68–72. He also requested an evidentiary
hearing to show that the government’s delay in bringing charges was unnecessary and
was instead “for the purpose of benefitting the government.” Id. at 83–85. Finally,
Mr. Lowe made arguments regarding the statute of limitations, id. at 75–78, but he
does not raise them here, conceding that his alleged criminal conduct falls within the
3 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 4
statute of limitations.1
On August 21, 2018, the district court denied Mr. Lowe’s motion to dismiss
the indictment. Id. at 232. First, while the district court assumed without deciding
that Mr. Lowe could show actual prejudice, it found that his Due Process claim failed
because he could not “establish that the government intentionally or recklessly
delayed bringing the indictment[.]” Id. at 228. Second, the district court denied Mr.
Lowe’s request for an evidentiary hearing because it was based on “bare-bones
assertions” that the government had “no apparent reason” to wait so long to bring an
indictment and failed to make specific or nonconjectural allegations about what facts
an evidentiary hearing would uncover. Id. at 229–30. Finally, the district court
rejected Mr. Lowe’s statute of limitations arguments. Id. at 222–26.
Discussion
We review a district court’s denial of a motion to dismiss for pre-indictment
delay for abuse of discretion. United States v. Garcia, 74 F.4th 1073, 1094–95 (10th
Cir. 2023) (omitting subsequent denials of certiorari). We also review the district
court’s denial of a request for an evidentiary hearing for abuse of discretion. United
1 In his “Statement of the Issues,” Mr. Lowe raises the question of whether 18 U.S.C. § 3287 and the 2001 Congressional authorization of use of military force extend the statute of limitations for fraud “without limitation[.]” Aplt. Br. at 2–3. However, later in his brief, Mr. Lowe stated he “does not contest the district court’s reasoning that the statute of limitation for the crimes alleged against him were tolled pursuant to 18 U.S.C. § 3287 and a November 28, 2017 indictment would be otherwise timely.” Aplt. Br. at 7. Therefore, we do not consider this issue. 4 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 5
States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003).
A. Preindictment Delay
To prove a Due Process violation based on preindictment delay, the defendant
must show (1) actual prejudice resulting from the delay and (2) that the government
purposefully designed the delay to gain a tactical advantage or harass the defendant.
Garcia, 74 F.4th at 1096. The first factor, actual prejudice, “is generally a necessary
but not sufficient element of a due process claim, and [] the due process inquiry must
consider the reasons for the delay as well[.]” United States v. Lovasco, 431 U.S.
783, 790 (1977); United States v. Koch, 444 F. App’x 293, 297 (10th Cir. 2011).
Upon the defendant’s prima facie showing of fact that a violation occurred, the
burden shifts to the government to present evidence that the delay was properly
motivated and justified. Garcia, 74 F.4th at 1096. The defendant bears the ultimate
burden of showing the Due Process violation by a preponderance of the evidence. Id.
After assuming without deciding that Mr. Lowe could show actual prejudice,
the district court denied Mr. Lowe’s Due Process claim because he failed to
demonstrate that, under the second factor, the government purposefully or recklessly
delayed in bringing the indictment. Aplt. App. 228.2 We agree that Mr. Lowe failed
2 The district court’s order stated that the second factor could be satisfied if the prosecutorial delay was either intentional or “incurred in reckless disregard of circumstances, known to the prosecution, suggesting that there existed an appreciable risk that delay would impair the ability to mount an effective defense.” Aplt. App. 227 (quoting Lovasco, 431 U.S. at 795 n.17). The Supreme Court has seemingly approved the reckless standard, but this circuit has declined to explicitly adopt it. See Garcia, 74 F.4th at 1097. It is of no moment in this case because the district 5 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 6
to make a prima facie showing of purposeful delay, consequently, we do not consider
whether Mr. Lowe has shown actual prejudice.
Mr. Lowe cannot demonstrate that the government acted intentionally in
bringing about the delay. In fact, Mr. Lowe’s brief makes little argument regarding
the second factor. Aplt. Br. at 9–11. Mr. Lowe’s brief states that “investigative
agents knew that the delay with an indictment would significantly increase the risk to
Mr. Lowe in his ability to mount an effective defense” and that “the government . . .
recklessly paid no attention to the clock[.]” Id. at 11. But he does not support these
contentions with any facts from the record or with legal authority. See Fed. R. App.
P. 28(a)(8)(A) (appellant’s brief must contain “contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies”).3
Although Mr. Lowe bears the initial burden of demonstrating intentional delay,
the government offered specific reasons for its delay before the district court —
primarily, that the allegations in the indictment were complex, involving a fraudulent
scheme with multiple defendants and business entities, and that the acquisition of
court concluded that the defendant failed to show preindictment delay under any standard — as do we. 3 Given the lack of factual or legal development, we have discretion to consider Mr. Lowe’s argument regarding the second factor waived because it “consist[s] of little more than generalized and conclusory statements” and “makes no attempt to engage with the district court’s reasoning[.]” United States v. Walker, 918 F.3d 1134, 1152–53 (10th Cir. 2019); see Fed. R. App. P. 28(a)(8)(A). Although the district court denied Mr. Lowe’s Due Process claim solely on the second factor, Mr. Lowe’s brief does not engage with the district court’s reasoning. 6 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 7
documents from multiple government and grand jury subpoenas took time. See Aplt.
App. 230–31. Mr. Lowe offers no evidence or argument to rebut the government’s
reasonable explanation, beyond suggesting that government agents (not specifically
named) knew that the passage of time would affect Mr. Lowe’s defense. This does
not suffice to demonstrate that the district court abused its discretion in evaluating
this issue.
B. Request for an Evidentiary Hearing
“[S]peculation . . . is an insufficient basis for requiring an evidentiary
hearing.” United States v. Sutton, 767 F.2d 726, 729 (10th Cir. 1985); see also
United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998) (“Evidentiary hearings
are warranted only when the allegations . . . are sufficiently definite, specific and
non-conjectural and detailed enough to enable the court to conclude that a substantial
claim is presented and that there are disputed issues of material fact which will affect
the outcome of the motion.”). At various points throughout his briefing, Mr. Lowe
contends that an evidentiary hearing is necessary to flesh out evidence showing how
he was prejudiced and that the government’s delay was intentional. Aplt. Br. at 8,
10–11; Aplt. Reply Br. at 6. But he fails to point out what specific evidence would
tend to support either actual prejudice or intentional/reckless delay. Mr. Lowe’s
argument is wholly speculative, and we find no abuse of discretion in the district
7 Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 8
court’s decision to deny an evidentiary hearing.
Entered for the Court
Paul J. Kelly, Jr Circuit Judge