United States v. Near
United States v. Near
Opinion of the Court
After a 10-day trial, a jury convicted defendants Craig Near and Genziko, Inc. of wire fraud and filing false claims against the United States. These convictions stemmed from misuse of grant money Near and Genziko received from the National Science Foundation (NSF) and the National Aeronautics and Space Administration (NASA). Both defendants appeal their convictions. They contend that there was insufficient evidence supporting those convictions, statements by the government and the district court’s jury instructions constructively amended the indictment charging them, and statements and evidence from the government served to lower the burden of proof they faced. For its part, the government cross-appeals the defendants’ sentences. After careful review and with the benefit of oral argument, we affirm the defendants’ convictions and sentences.
I. BACKGROUND
Near and Genziko were charged with seven
A. Near and Genziko
Near founded Genziko in 2004 to research and develop products based on piezoelectric materials, which generate energy from vibrations or movement. Near had worked with these materials for nearly twenty years before he founded the company, Genziko was a one-man operation with Near as its only paid employee. Despite its small size, the company managed to win grants and contracts from government agencies, including NSF and NASA.
B. SBIR Program and Grants
Genziko applied for and received an NSF grant and a NASA contract under the Small Business Innovation Research (SBIR) program. The SBIR program was established by Congress to direct a portion of federal research funding to small businesses to help them develop innovative products that could be successfully commercialized. See Small Business Innovation Development Act of 1982, Pub. L. No. 97-219,
1. NSF Grant
In response to NSF’s public solicitation for SBIR proposals, Near submitted a proposal for Genziko to develop a “High Performance Vibration Energy Harvester” that would eliminate the need for battery
Genziko proposed a budget just shy of $100,000, broken down into different expense categories. Am NSF employee followed up and requested more detailed budget information for Genziko’s proposal to receive further consideration. Near complied, sending a detailed budget that listed himself, an unnamed student technician, and two named individuals, including a professor from the Georgia Institute of Technology (“Georgia Tech”), as employees for the project. The detailed budget also included a lease payment to Georgia Tech for a lab that was to be used for some of the necessary research and development. At trial, Dr. Benaiah Schrag, an SBIR program director at NSF, testified that NSF expected companies to follow their proposed budgets and contact NSF for approval of any changes.
NSF approved the proposal and awarded Genziko an SBIR grant. NSF paid Gen-ziko two-thirds of the grant amount up front with the remainder to be paid when the company submitted its final report. Schrag testified that the final reports were the only thing NSF expected to receive as a result of SBIR grants. Although Genziko performed some of the anticipated research and development, the company did not follow its proposed budget. NSF Office of the Inspector General (OIG) Special Agent Brian Hess testified that he examined Genziko’s records and bank accounts and found no evidence that Genziko had paid the expenses outlined above. Indeed, Hess related that when he interviewed Near as part of OIG’s investigation, Near stated that he never paid any employees but himself.
In Genziko’s final report, Near certified that to best of his knowledge the work for which he was requesting payment was performed in accordance with the award terms and conditions. Schrag testified that the agency viewed this certification as confirming that money was spent according to the proposed budget. After receiving Gen-ziko’s final report, NSF .wired the final third of the grant from the U.S. Treasury to Genziko’s account.
2. NASA Contract
Near submitted a proposal to NASA’s SBIR program for Genziko to develop a “Frequency-Steerable Acoustic Transducer.” In layman’s terms, this device would function as something like an ultrasound to detect leaks or changes inside structures. Genziko was approved for and received a six-month NASA SBIR contract to develop the idea. After completing that contract, Near applied for a second one, which is the subject of most of the charges in this case. This second, multi-year contract was a continuation of the first contract and relied on the same proposal.
Genziko proposed a budget of just under $600,000 over two years for the second contract. The budget listed payments to an unnamed engineer, an unnamed technician, and two named consultants that were to be paid in the contract’s first year. NASA contracting officer Julie Delgado testified at trial that she followed up requesting more detail, and Near responded that Timothy Meyer would serve as the engineer and Chris Brooks as the technician.
Genziko was awarded the second contract. The contract specified that Genziko would be paid in installments after submitting quarterly interim reports of its progress. Genziko’s proposal was also expressly incorporated by reference into the terms
Genziko submitted the required quarterly interim reports and received its installment payments under the contract. NASA OIG Special Agent Lee Gibson and a NASA accountant testified to five wire transfers of NASA contract money from the U.S. Treasury to three different Genzi-ko bank accounts over the course of the contract. According to Gibson, Near spent money from all three Genziko accounts on personal expenses.
As part of the seventh report, which Near filed well into the contract’s second year, Near certified that Genziko’s performance had complied with the contract’s terms and conditions. Yet Genziko did not spend the contract money as specified in its proposal. Brooks, for example, testified that he was never paid (and never expected to receive any payment) for some technical help he provided Near on the project. Hess, the NSP OIG agent, testified that, after examining Genziko’s records, he found no evidence of payments to Brooks, Meyer, or the two consultants. In addition, the University of Toledo (“UT”) entered into a contract with Genziko to act as a subcontractor on the NASA contract. A UT accountant testified that although UT faculty and students performed nearly $300,000 worth of work on the subcontract, Genziko paid UT only about $70,000.
C. The Trial
A grand jury indicted the defendants, and the case proceeded to trial. Genziko was unrepresented at trial. During its opening statement, the government showed slides that Near had viewed at a presentation for NSF grantees given by Dr. Montgomery Fisher, a lawyer and investigator with NSF’s OIG. The slides stated in large letters “Don’t lie” and “Don’t steal” and warned viewers that if they lied or stole they would be investigated and prosecuted. Presentation of Montgomery Fisher (Doc. 190-65 at 9-12).
At the conclusion of the government’s case, Near made a motion for a judgment of acquittal, which the court denied. Near did not renew this motion at the close of his own case.
The district court instructed the jury on all counts using the Eleventh Circuit’s pattern instructions. It added that the jury had to decide whether the government had proven the defendants guilty of the crimes charged in the indictment, clarifying that stealing was not a crime charged in the indictment, nor was using money derived from federal grants for personal expenses.
The jury convicted the defendants on all counts but one.
D. Sentencing
Over the course of two days during the sentencing hearing, the district court heard testimony, from Gibson for the government and forensic accountant Jean-Pascal Gingras for the defense, on the issue of how much monetary loss was attributable to the defendants. Ultimately, the court concluded that the government agencies got the full benefit of their bargains, so they could not show any loss. In the alternative, the court concluded that the value of the services provided by Near, Genziko, and Genziko’s subcontractors was greater than any loss to the government
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The defendants appealed their convictions. The government cross-appealed, challenging the defendants’ sentences.
II. DISCUSSION
The defendants raise three challenges on appeal. First, they challenge the sufficiency of the evidence supporting their convictions. Second, they argue that statements the government made to the jury about the crimes’ elements and the instructions given by the district court constructively amended the indictment charging them. Third, they argue that the series of slides introduced by the government and read by a government witness, along with statements about lying and stealing by the government during the government’s opening and closing, lowered the burden of proof by suggesting to the jury that it could convict the defendants of simple lying and stealing. We reject these arguments and affirm the defendants’ convictions. First, the government produced sufficient evidence such that the defendants’ convictions did not amount to a manifest miscarriage of justice. Second, looking at the full context of the trial, we disagree that the indictments were constructively amended. Third, even assuming the district court erred in admitting the challenged evidence, that error was harmless in light of the court’s curative instructions.
The government appeals the defendants’ sentences. It contends that the district court erred in calculating a loss amount of zero for the defendants’ crimes because in making its calculation the court should have applied a special rule relating to government benefits. The government also argues that the district court erred in offsetting any loss with the value of services provided by Near, Genziko, and Genziko’s subcontractors. After reviewing the record, we are not convinced that the district court’s factual findings about loss were clearly erroneous. Nor did the district court err in offsetting any losses by the value of services provided under the grants. Given these conclusions, we need not decide whether the government benefits rule applies because it would have no impact on the defendants’ sentences. Finally, the government urges us to overturn the district court’s decision not to order any restitution. On the record before us, however, the district court did not abuse its discretion in declining to order restitution. We therefore affirm the defendants’ sentences.
A. Sufficiency of the Evidence
The defendants challenge the sufficiency of the evidence supporting each of their convictions. We generally review the evidence supporting a defendant’s convictions de novo, drawing all reasonable inferences in favor of the verdict. United States v. Perez,
1. Wire Fraud
To convict the defendants of wire fraud in violation of
Sufficient evidence established that the defendants made the seven transmissions at issue for the purpose of executing the scheme with which they were charged. “A transmission is for the purpose of executing the [charged] scheme if it is incident to an essential part of the scheme.” United States v. Evans,
Six of the transmissions were wire transfers of the proceeds of the defendants’ scheme. Gibson and a NASA accountant testified that five of the charged transmissions were wire transfers of NASA grant money from the U.S. Treasury to three Genziko bank accounts.
The seventh wire transmission was an April 23, 2014 email Near sent on behalf of Genziko to Delgado, the NASA contracting officer. Delgado had emailed Near the day before, asking for information about how NASA money allocated in Near’s project budget to pay an engineer and a technician had been spent. She requested this information to dose out NASA’s contract with Genziko and process final payments to the company. Near replied by naming two employees who purportedly had worked as an engineer and a technician on the project. Genziko received its final two payments from NASA within a month of Near’s email. Yet Gibson testified that neither of the individuals Near named had received any money from Genziko. Taken together, the evidence supports the jury’s verdict that Near sent the email for the purpose of defrauding the United States in order to obtain money.
The defendants contend that these seven wire transmissions cannot have been for the purpose of executing the scheme with which they were charged because each transmission was sent after that scheme had concluded. Generally, a wire transmission sent after a scheme has reached fruition cannot be for the purpose of executing the scheme. See Evans,
2. False Claims
Sufficient evidence also supported the defendants’ convictions on two counts of presenting false claims to the United States. To obtain a conviction under the false claims statute,
a. NSF Grant
Near submitted to NSF a final report of the work Genziko completed under its NSF grant. When submitting that report, Near had to certify on behalf of Genziko that “to the best of [his] knowledge the work for which payment is hereby requested was performed in accordance with the award terms and conditions.” NSF Final Report (Doc. 190-28 at 32). The government argued that this certification was false because Genziko did not comply with the budget it proposed when seeking the grant. Specifically, the government offered evidence that after submitting the grant proposal, an NSF program director contacted Near requesting more detail about Genziko’s proposed budget. The program director stated that he needed the information in order for Genziko’s proposal to receive further consideration. Near responded by providing a more detailed budget proposal that listed payments to two named individuals, an unnamed student technician, and Georgia Tech. Hess testified that he examined Genziko’s records and found no evidence that Genziko had paid any of these expenses.
The defendants make several arguments about why the more detailed budget listing those four expenses was not part of the terms and conditions with which Near had certified compliance. But the government offered enough evidence that the award terms and conditions included the detailed budget to persuade us that there has been no manifest miscarriage of justice.
Schrag testified that NSF expected companies to follow their proposed budgets, that the agency viewed the final report certification as confirming that money was spent according to the proposed budget, and that companies were required
b. NASA Contract
Genziko was required to submit quarterly reports on the status of the work it performed pursuant to its NASA contracts as a condition of receiving payment. As part of the Seventh Quarterly Interim Report for Genziko’s NASA contract, which was filed well into the project’s second year, Near certified that during the performance of contract, “[tjerms and conditions set forth in this contract have not been altered, except [sic] approved in writing by the Contracting Officer.” Seventh Q. Interim Rep, Certification (Doc. 190-39 at 67). The government argued that this certification was false because Genziko had not paid the expenses listed in its budget. The government placed into evidence Genziko’s budget proposal, which listed payments to an unnamed engineer, an unnamed technician, and two named consultants that were to be made in the contract’s first year. Delgado testified Near informed her that Meyer was the engineer and Brooks was the technician. But Brooks testified that he was never paid (and never expected to receive any payment) for some technical help he provided Near. Hess testified that when he interviewed Near, Near stated that he never paid any employees but himself. Hess also testified that, after examining Genziko’s records, he found no evidence of payments to Brooks, Meyer, or the two named consultants.
The defendants argue that because the terms and conditions of Genziko’s NASA contract did not include a specific timeline for paying employees, the possibility of payment remained open, meaning the certification was not false. But the government introduced evidence that these payments were budgeted for the contract’s first year, which concluded nine months before Near certified his compliance with the contract.
Sufficient evidence supported the government’s argument. The cover page of the NASA contract that Near signed on Genziko’s behalf specified that the contract would be governed by several documents including “this award/contract” and “such provisions, representations, certifications, and specifications, as are attached or incorporated by reference herein.” NASA Contract (Doc. 190-43 at 19). Within that contract, a term provided that Genziko’s proposal was “hereby incorporated into
B. Constructive Amendment of the Indictment
The defendants argue that the district court and government constructively amended the indictment charging them. “A constructive amendment occurs when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Castro,
1. Wire Fraud
One of the elements of wire fraud is that the defendant acted with knowledge when he devised or participated in a scheme to defraud another. Langford v. Rite Aid of Ala., Inc.,
We disagree. “[I]n context,” the government and district court’s failure to mention willfulness did not constructively alter the indictment. Castro,
The defendants rely on United States v. Cancelliere,
2. False Claims
One of the elements of the crime of filing false claims is that the defendant knew that the claim he filed was false, fictitious, or fraudulent. Hesser,
As with the wire fraud counts, we are unconvinced. The court instructed the jury to decide whether the government had proved the defendants guilty of the crimes as charged, the jury had the indictment
C. Trial Objections
The defendants argue that the government impermissibly lowered the burden of proof via testimony and exhibits admitted at trial. Specifically, they argue that the government should not have been allowed to introduce Fisher’s slide presentation because it equated simple lying and stealing with guilt under the charged statutes. For the same reason, the defendants object to Fisher’s reading of the slides to the jury, the government’s preview of the slides during its opening argument, and the government’s reference to lying and stealing during its closing argument. We review the admission of evidence over the defendant’s objection for an abuse of discretion. United States v. Joseph,
Assuming the district court abused its discretion, we conclude that any error was harmless. The district court’s jury instructions ameliorated any harm the slides, testimony, and arguments might have caused. With regard to stealing, the court instructed the jury that “[i]t [was] not a crime as charged in the indictment nor an element of any charged crime to use money derived from federal grants or contracts for personal expenses.” Trial Tr. June 18, 2015 (Doc. 252 at 69). With regard to lying, the court gave two separate instructions that lies had to be material in order to be criminal under the wire fraud and false claims statutes. “Few tenets are more fundamental to our jury trial system than the presumption that juries obey the court’s instructions.” United States v. Stone,
D. Sentencing
The government cross-appeals two of the district court’s sentencing rulings. First, it challenges the court’s determination that the special rule for government benefits established by the Sentencing Guidelines was inapplicable. Second, the government contends that the district court erred in declining to award restitution to the defendants’ victims. After careful review, we find no error.
1. Loss Calculation
The district court determined that there was no loss to the government in this case because NSF and NASA got what they bargained for. The government argues that the district court should have applied the “Special Rule” for government benefits spelled out in Application Note 3(F)(ii) to the fraud guideline, which properly would have recognized the government’s loss amount. See U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). This Court reviews a district
The Government Benefits Rule provides that in cases involving certain government benefits programs, the loss amount used to determine a defendant’s sentence should be the entire amount (1) obtained by unintended recipients or (2) diverted to unintended uses. U.S.S.G. § 2B1.1 cmt. n.3(F)(ii). The district court considered the government’s argument that this rule applied to the defendants but found that even if it might apply, Genziko and Near were not unintended recipients. This finding was not clearly erroneous. There was ample testimony that the purpose of the SBIR program was to help small businesses commercialize technology products, and the evidence established that Genziko was such a small business.
Regardless, the government argues that Near diverted money to unintended uses, which also falls under the Government Benefits Rule. We need not decide whether the government is correct, however, because the result would be the same whether the Government Benefits Rule applied or not. The district court found that the value of Near’s labor — along with labor, equipment, and materials provided by Georgia Tech and UT — was worth more than any loss suffered by the government. Applying a different subsection of the same Application Note that establishes the Government Benefits Rule, the court credited the fair market value of the services Genziko and its subcontractors performed pursuant to the grants against the loss amount, resulting in a loss of zero. U.S.S.G. § 2B1.1 cmt. n.3(E). After reviewing the record, which includes extensive testimony by a forensic accountant for the defendants, we are not persuaded that the district court’s finding about the value of Near and Genziko’s services was clearly erroneous.
The government insists, however, that losses under the Government Benefits Rule are not subject to credits against them. It cites United States v. Maxwell,
But Maxwell does not speak to whether the value of services provided by an intended recipient can be credited against losses caused by that recipient’s unintended use of funds. We are persuaded that such losses can be offset by the value of service provided. “Money is fungible,” Sabri v. United States,
We find no error in the district court’s conclusion that the government suffered no loss. We therefore affirm Near’s sentence of four months’ imprisonment and Genziko’s sentence of five years’ probation and a $5,000 fine.
2. Restitution
The government also argues that the district court erred in refusing to order restitution. The Mandatory Victim Restitution Act (MVRA) requires district courts to order restitution if the defendant is convicted of a covered offense “in which an identifiable victim or victims has suffered a pecuniary loss.” 18 U.S.C. § 3663A(a)(l), (c)(1)(A) and (B). Wire fraud is a covered offense. 18 U.S.C. § 3663A(c)(1)(A)(ii); United States v. Dickerson,
Here, the district court explained that it ordered no restitution because it did not believe that any actual victim sustained an actual loss. The government, by contrast, identifies seven victims that it contends suffered loss: NSF, NASA, two Georgia Tech professors, Georgia Tech, UT, and Mound Laser and Photonics Center, Inc. The MVRA defines the term “victim” expansively. See United States v. Speakman,
As explained above, we agree with the district court’s finding that neither NSF nor NASA suffered monetary harm, so the agencies are not entitled to restitution. And our review of the record does not persuade us that the district court clearly erred in declining to order restitution to the other alleged victims because the connection between the defendants’ offense conduct and the victims’ losses was too attenuated. See
III. CONCLUSION
For the foregoing reasons, we AFFIRM the defendants’ convictions and sentences.
. The indictment charged the defendants with eight counts of wire fraud, but the government dismissed one of these counts before trial.
. The indictment charged that each defendant was responsible for each count both as a principal and as an aider and abettor.
. We include here only the facts essential to resolving the issues on appeal.
. References to "Doc.” refer to the numbered docket entries in the district court record of the case.
. Gibson also testified that Near spent money from all three Genziko accounts, so he indisputably had access to those funds.
. The defendants contend that the government failed to mention the scienter element of materiality in closing. This is true, but the government did not mention scienter at all, nor did the government purport to lay out the elements it was required to prove. The government’s closing argument did not, therefore, constructively amend the indictment.
Reference
- Full Case Name
- UNITED STATES of America, Cross v. Craig D. NEAR, a.k.a. Craig Douglas Near, Genziko, Inc., Cross
- Cited By
- 2 cases
- Status
- Published