United States v. Richard Schaller

401 F. App'x 419
CourtCourt of Appeals for the Eleventh Circuit
DecidedOctober 21, 2010
Docket09-15394
StatusUnpublished
Cited by1 cases

This text of 401 F. App'x 419 (United States v. Richard Schaller) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Richard Schaller, 401 F. App'x 419 (11th Cir. 2010).

Opinion

PER CURIAM:

Richard Schaller appeals his convictions for altering, destroying, mutilating, and concealing a corporate record with the intent to impair the record’s integrity and availability for use in an official proceeding, in violation of 18 U.S.C. § 1512(c); making a false declaration before a grand jury, in violation of 18 U.S.C. § 1623; making a false statement, in violation of 18 *421 U.S.C. § 1001; and twenty-nine counts of aiding and abetting a codefendant, who participated as a government employee in a contract in which the codefendant had a financial interest, in violation of 18 U.S.C. §§ 208, 216(a)(2), and 2. These charges arose from Schaller’s involvement in concealing the fact that his codefendant Mark O’Hair, who was a former project manager for the Air Force Research Lab (“AFRL”) at Eglin Air Force Base, was also a director of Schaller’s company, Schaller Engineering, Inc. (“SEI”), which received Air Force contracts.

I.

Schaller argues that the district court abused its discretion by denying his request to subpoena six Air Force officials under Federal Rule of Criminal Procedure 17(b). We review the denial of a Rule 17(b) motion for abuse of discretion. United States v. Rinchack, 820 F.2d 1557, 1566 (11th Cir.1987). A defendant making a Rule 17(b) motion bears the burden of articulating specific facts that show that a requested witness’s testimony is relevant and necessary. Id. “[Ojnce the defendant asserts facts which, if true, would be relevant to any issue, the motion for a subpoena must be granted unless the assertions are facially incredible or unless the government can show that they are untrue or that the request is frivolous.” United States v. Hegwood, 562 F.2d 946, 953 (5th Cir.1977). 1 If the defendant adequately asserts relevant facts, then “the burden of showing lack of truth, frivolousness or abuse of process falls on the government.” Id.

Schaller argues that the testimony of the six Air Force officials would have been relevant to his defense that the government waived O’Hair’s conflict of interest. Section 208 of Title 18 of the United States Code provides that

whoever, being an officer or employee of the executive branch of the United States Government, ... participates personally and substantially as a Government officer or employee ... in a ... contract ... or other particular matter in which, to his knowledge, he ... [or an] organization in which he is serving as ... director ... has a financial interest [shall be guilty of a felony].

18 U.S.C. § 208(a). Subsection (a) does not apply

if the officer or employee first advises the Government official responsible for appointment to his or her position of the nature and circumstances of the ... contract ... or other particular matter and makes full disclosure of the financial interest and receives in advance a written determination made by such official that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from such officer or employee.

Id. § 208(b)(1).

Schaller tells us that, if subpoenaed, at least some of the Air Force officials would have testified that they knew about O’Hair’s conflict of interest, and all of them would have testified to the existence of an Air Force acquisition plan that fostered conflicts of interest in violation of Air Force policy. But even if this is true, the witnesses’ testimony would not have been relevant to Schaller’s waiver defense. Schaller never indicated to the district court that any of the six witnesses would testify that O’Hair disclosed his position as an SEI director, or that he sought and received a written opinion waiving the con *422 flict. See id. (providing that a conflict of interest may be waived only if the government employee makes a full disclosure and obtains a written opinion stating that the conflict is waived); see also United States v. Hedges, 912 F.2d 1397, 1401 (11th Cir. 1990) (noting that the provisions of 18 U.S.C. § 208(a) may be waived if the government employee makes a full disclosure and obtains a written opinion).

Schaller also argues that the witnesses’ testimony about the existence of the acquisition plan would show that he lacked the mens rea necessary to be convicted of aiding and abetting O’Hair’s personal and substantial participation in contracts in which O’Hair had a financial interest. But this argument fails because what other people know about the acquisition plan has no bearing on Schaller’s own personal knowledge and intent. For these reasons, the district court did not abuse its discretion in déhying his Rule 17(b) motion.

II.

Schaller next argues that the district court erred in declining to instruct the jury on Federal Acquisition Regulation (“FAR”) 9.504, insofar as the regulation was relevant to his defense theory that the Air Force waived any conflict of interest. 2 “We review a district court’s refusal to give a particular jury instruction for abuse of discretion.” Beckford v. Dep’t of Corr., 605 F.3d 951, 957 (11th Cir.2010) (internal quotation marks omitted). 3

“A criminal defendant has the right to have the jury instructed on [his] theory of defense, separate and apart from instructions given on the elements of the charged offense.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir.1995). “A trial court may not refuse to charge the jury on a specific defense theory where the proposed instruction presents a valid defense and where there has been some evidence adduced at trial relevant to that defense.” Id.

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Related

Schaller v. United States
179 L. Ed. 2d 1213 (Supreme Court, 2011)

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Bluebook (online)
401 F. App'x 419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-richard-schaller-ca11-2010.