United States v. Gregory Boutte

Citations: 13 F.3d 855; 1994 WL 20141Docket: 93-4128

Court: Court of Appeals for the Fifth Circuit; March 2, 1994; Federal Appellate Court

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Gregory Boutte appeals his conviction on multiple counts of wire fraud, submitting false claims, and making false statements to a federal agency, arguing that the district court made reversible errors in pretrial motions, evidentiary rulings, jury instructions, and sentencing calculations. The court, however, found no merit in these claims and affirmed the conviction.

From 1988 to 1991, Boutte and his accounting firm operated the Triplex Minority Business Development Center, funded by the U.S. Department of Commerce to support minority-owned businesses. Triplex received $165,000 annually and was required to submit quarterly narrative reports (QNRs) detailing assistance provided to minority businesses and personnel involvement. The QNRs falsely claimed significant assistance to businesses like W.B. Construction and J. Allen Contractors, which employees testified they did not receive. Boutte solicited contracts from these businesses, misrepresented the data in QNRs, and fabricated time commitments by maintaining dual timesheets for Triplex and the partnership. Testimonies confirmed that the reported services and personnel involvement were inflated, leading to Boutte's fraudulent reporting and ultimately his conviction.

Agustus Bodah, a former employee of Triplex who reported fraudulent activities after his termination, led to federal agents obtaining a search warrant for Triplex's offices and a storage warehouse, resulting in the seizure of numerous documents. On October 17, 1991, a 23-count indictment was filed against Boutte, the partnership, and several employees. Boutte sought production of the search warrant affidavit, the ability to file a suppression motion, and a bill of particulars, all of which were denied by the district judge. The judge reviewed the affidavit in camera, deemed it sufficient to support the warrant, and provided it to defense counsel during the trial, although it was not included in the official record. It is understood that Bodah was the confidential informant.

The district court's decision to protect Bodah’s identity raised questions, yet Boutte did not demonstrate any prejudice from this ruling. He had access to the affidavit since June 29, 1992, and failed to present any argument suggesting it was inadequate or prejudicial. The court stated that the Federal Rules of Criminal Procedure are not a constitutional requirement and emphasized that Boutte needed to specify how the ruling hampered his defense. Additionally, Boutte's claims regarding the violation of his Sixth Amendment right lacked supporting authority.

The district court also did not abuse its discretion in denying Boutte's request for a bill of particulars, as the information he sought was available from the QNRs submitted to the Department of Commerce, and he did not show actual surprise or prejudice at trial. Lastly, Boutte argued that the jury instruction on deliberate ignorance was erroneous; however, he did not challenge the instruction's legal foundation, only its applicability to the evidence presented, asserting no inference of intentional ignorance regarding the inaccuracies in the QNRs.

A deliberate ignorance instruction must be specifically tailored to the case's facts rather than presented as an abstract legal principle. In this case, there is no evidence that Boutte consciously avoided knowledge of fraudulent activities related to Triplex; instead, he actively engaged in illicit conduct. His actions included soliciting contracts for deceitful inclusion in reports, assigning personnel for work charged to Triplex, and creating dual time sheets to conceal partnership work, which he personally reviewed. Boutte's assertion that he did not believe his actions were wrongful does not indicate he avoided learning about the illegal conduct. 

Even if the district court's instruction on deliberate ignorance was erroneous, it was deemed harmless, as substantial evidence of Boutte's actual knowledge existed, consistent with precedents indicating that such an instruction is surplusage without evidence of conscious ignorance. The district court's charge regarding misrepresentations in counts 6-10 did not omit essential allegations; it adequately presented the required elements under 18 U.S.C. § 287, ensuring the jury's conviction was based on the indictment's foundational evidence. 

Boutte's claim regarding jury unanimity instructions for counts 6-10 and counts 11-23 was also rejected. The jury was instructed solely on improper claims, not on QNRs. The conviction required proving beyond a reasonable doubt that Boutte knowingly presented a false claim to a U.S. agency and was aware that the claim was fraudulent.

Claims labeled "Request for Funds," entered as exhibits 64-68, match those in the indictment. Boutte's argument that the jury could convict him on counts 6-10 for either making false claims or filing false quarterly reports is incorrect. The jury's potential reliance on either the falsehood or fraudulent nature of the claims did not invalidate the verdict, supported by case law including Turner v. United States and others. Boutte also misinterprets the court's charge regarding jury unanimity, which the court clarified did require unanimity for conviction theories. Counts 11-23 specifically address false and fraudulent quarterly reports, with the jury instructed to reach a unanimous verdict on each count, and no further requests for detailed instructions on unanimity were made. 

Boutte challenges the admissibility of a letter from Bodah to the Department of Commerce that initiated the investigation, claiming its use was improper as it was not for refreshing recollection or as a prior consistent statement. However, the lack of objection at trial and the letter’s cumulative content diminished the significance of the error, which did not result in a miscarriage of justice. 

Regarding sentencing, Boutte contests the four-level increase for his role as an organizer or leader in the offense, arguing insufficient participants under Guidelines definitions. The district court found sufficient evidence indicating at least four other employees involved in the fraudulent activities, regardless of whether they were charged. Boutte failed to prove these employees did not knowingly participate, affirming the district court's determination was not clearly erroneous. Consequently, the conviction judgment is affirmed.