United States v. Hillgartner
United States v. Hillgartner
Opinion of the Court
ORDER AND JUDGMENT
In Count 1 of a three-count indictment, Billy Fred Hillgartner (“Hillgartner”) was charged with causing to be transmitted a wire communication in inter-state and foreign commerce for the purpose of carrying out a scheme to defraud whereby the Office of Justice Programs, Washington, D.C., on December 10, 1997, transferred $57,131.00 to a checking account under Hillgartner’s sole control in the First National Bank of Farmington, Farmington, New Mexico, in violation of 18 U.S.C. § 1343. In Count 2, Hillgartner was charged in like fashion with causing a similar transfer of funds in the amount of $45,746.00 on February 26, 1998, from the Office of Justice Programs Washington, D.C., to his checking account in the First National Bank of Farmington in violation of 18 U.S.C. § 1343. In Count 3, Hillgart-ner was charged in the same fashion with attempting to cause a transfer on April 15, 1998, of $47,123.00 from the Office of Justice Programs, Washington, D.C., to his checking account in the First National Bank of Farmington in violation of 18 U.S.C. § 1343.
On appeal, counsel raises the following issues: (1) 18 U.S.C. § 1343 is “unconstitutionally vague,” if not on its face, as applied to the facts of the instant case; (2) insufficient evidence to show that Hillgart-ner had a specific intent to defraud or any scheme to defraud; and (3) error at sentencing when the district court increased Hillgartner’s base offense level by two for more-than-minimal planning and also increased Hillgartner’s base offense level by two levels for obstruction of justice. Finding no reversible error, we affirm.
Before considering the various grounds asserted in this Court by counsel for reversal, a more detailed reference to the indictment may be helpful. Under the heading of “Introduction,” we learn from the indictment that the Town of Navajo, New Mexico, is a part of the Navajo Nation and is located in the State of New Mexico. According to the indictment, the Navajo Nation Department of Law Enforcement (“NNDLE”) oversees all policing activity throughout the Navajo Nation, including the Town of Navajo, New Mexico, and that Hillgartner is a captain in the NNDLE. The Office of Community Oriented Policing Services (“COPS”), an agency of the United States Department of Justice, has as its goal, inter alia, increasing the number of police officers on America’s streets, the promotion of community policing, and seeks to aid law enforcement agencies and improve safety levels in communities throughout the country. In furtherance of said goals, COPS established a community policing grant program called Problem Solving Partnerships, under which any state, local or Indian Tribal law enforcement agency may apply for a grant. On or about August 15, 1996, Hillgartner submitted a grant application to COPS, listing the Town of Navajo and NNDLE as partners and co-grantees. In the grant application that Hillgartner prepared and submitted he stated that any grant funds received by the Town of Navajo and NNDLE would be used to establish a program called “Crime Busters” and focused on “the problem of residential burglaries in the Town of Navajo.” On or about September 26, 1997, COPS awarded a grant of $150,000.00 to NNLDE and the Town of Navajo.
In the indictment, under the heading of “The Scheme and Artifice to Defraud,” it was alleged that a part of the scheme was that Hillgartner “would and did divert and cause to be diverted proceeds of the COPS grant from the Navajo Nation General Fund Account to a different bank account under his sole and exclusive control.” In furtherance thereof, according to the indictment, Hillgartner opened a checking account at the First National Bank of Farmington, Farmington, New Mexico, for the purpose of receiving all proceeds of the COPS grant and falsely represented to the bank that he was authorized to conduct all activities associated with the COPS grant, including the distribution of all grant monies. We also learn from the indictment
I. Vagueness
On appeal, counsel argues that 18 U.S.C. § 1343, the statute upon which all three counts in the indictment are based, is “vague” and therefore in violation of the “due process” clause of the Fifth Amendment of the United States Constitution. This issue was not raised in the district court, either by pre-trial or post-trial motion. Such being the case, on appeal, we review only for “plain error.” United States v. Walker, 137 F.3d 1217, 1219 (10th Cir. 1998).
The test for impermissible vagueness is whether a person of ordinary intelligence is given fair notice by the statute that his conduct is forbidden. United States v. Stewart, 872 F.2d 957, 959 (10th Cir. 1989). In Stewart, we also held that 18 U.S.C. § 1343, the wire fraud statute, and 18 U.S.C. § 1341, the mail fraud statute, were not unconstitutionally vague.
In his reply brief, counsel states that he is not challenging 18 U.S.C. § 1343 on the grounds that it is facially vague, but rather, it is his position that “the statute is vague as applied to the facts of this ease.” In this latter regard, see United States v. Protex Industries, Inc., 874 F.2d 740, 743 (10th Cir. 1989). Whether this statute is “vague” as applied to the present facts necessarily involves a consideration of the evidence adduced at trial. We shall discuss the evidence before the district court and the jury in some detail in the next section of the Order and Judgment. For present purposes, it is sufficient to state that we see no “vagueness” in the statute when applied to the facts of the present case,
II. Sufficiency of Evidence
Hillgartner next argues that the government failed to present sufficient evidence to prove that he had a “specific intent to defraud” or that he had any “scheme or artifice to defraud.” In this connection, it was the government’s theory of the case that rather than using the grant for its intended purpose of combating crime in the Town of Navajo, Hillgartner secretly set up a bank account under his sole control and caused $102,877.00 of the grant to be transferred by wire to his account, which monies were thereafter used for himself and his family. As to the third, and last, installment of some $47,123.00, when Hillgartner attempted to have that sum sent to his account, a COPS clerical correction directed that particular transfer to the Navajo Nation account, all of which precipitated an investigation into the entire matter, resulting, inter alia, in a cancellation of the grant.
It was Hillgartner’s theory of the case that, though he had, perhaps, shown bad judgment, he was not guilty of any criminal conduct. Counsel claims that Hill-gartner could not reasonably have been expected to know of all the “rules and regulations” of COPS, and that he did not have “reasonable notice” that any “bureaucratic ineptitude or poor management [on his part] resulting in delay in executing a grant project is punishable as wire fraud.”
As previously stated, there was a rather protracted jury trial at which numerous witnesses were called. Hillgartner elected
III. Enhancement of Hillgartner’s Base Offense Level
Hillgartner’s final argument on appeal is that the district court erred in increasing his base offense level by two for more-than-minimal planning and then increasing it two more levels for obstructing justice. We review a district court’s application of the Sentencing Guidelines de novo, and a district court’s factual findings for clear error, “giving due deference to the district court’s application of the guidelines to the facts.” United States v. Vallo, 238 F.3d 1242, 1250 (10th Cir. 2001). On the basis of the record before it, we believe the district court’s factual findings were not clearly erroneous, nor are we inclined to disturb the district court’s application of the guidelines to those facts. Certainly, the “planning” of the scheme was not just minimal planning. The “planning” took place over the course of several months. The enhancement for obstructing justice was based on the district court’s belief that Hillgartner had testified falsely concerning the letter of authority given the First National Bank of Farmington, as well as on some other matters. United States v. Mounkes, 204 F.3d 1024, 1029 (10th Cir. 2000).
Judgment affirmed.
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Reference
- Full Case Name
- United States v. Billy Fred HILLGARTNER
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- 1 case
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- Published