United States v. George Glymph, D/B/A Specifications and Standards, Inc.
Docket: 95-5686
Court: Court of Appeals for the Fourth Circuit; September 19, 1996; Federal Appellate Court
George Glymph was convicted of supplying nonconforming parts to the Department of Defense (DOD), violating 18 U.S.C. § 287. He contended that his prior four-year debarment from government contracting constituted 'punishment' under the Double Jeopardy Clause, thereby barring his criminal prosecution. Glymph also argued that the government did not prove his specific intent to violate the statute and that the district court erred in determining he held a position of trust under the Sentencing Guidelines.
The court found no merit in Glymph's claims. As the President and majority owner of Specifications and Standards, Inc., Glymph participated in the DOD's 'Alternate Release Procedure' after gaining approval for his company due to its good quality history. However, the company was expelled from this program due to failure to provide necessary documentation. Subsequently, debarment proceedings were initiated, resulting in a four-year exclusion from government contracts without a fine, deemed necessary to protect the government's interests.
Indicted in October 1994, Glymph was convicted in March 1995 on multiple counts of making false claims related to government orders. His sentence included a two-level enhancement for obstruction of justice, based on evidence of him destroying contract files during the DOD’s investigation, and another enhancement for abusing a position of trust. He received a total sentence of twenty-one months in prison, two years of supervised release, and was ordered to pay restitution and assessments. The court affirmed the conviction and sentence, rejecting Glymph's arguments.
Glymph's assertion that administrative debarment functions as a punishment is unconvincing. The Tenth Circuit's view is that debarment is primarily remedial, aimed at eliminating corrupt influences from government programs and safeguarding public funds. While individuals may perceive debarment as punitive, it serves as a necessary governmental action for public protection. Various case precedents reinforce that debarment, particularly in contexts like HUD programs and the banking industry, is intended to protect governmental interests rather than to punish. The Supreme Court has similarly ruled that civil forfeiture does not constitute punishment for Double Jeopardy purposes, emphasizing the nonpunitive goals of such measures. The Federal Acquisition Regulations explicitly state that debarment is to be applied in the public interest and for protection, not as a punitive measure. Glymph's suffering due to debarment does not alter its classification, as the determination of punishment does not hinge on the individual's perspective. Furthermore, Glymph's claim that the four-year debarment is excessively disproportionate to the damage he caused is rejected, as the government incurred significant costs—over $40,000—for nonconforming parts attributed to him, making the debarment duration justifiable.
Glymph argues that there is insufficient evidence to prove his knowledge of nonconforming parts supplied against the requirements of the purchase order, which is essential for establishing specific intent to violate legal provisions. He supports his claim by asserting that his awards and previous law enforcement experience suggest any wrongdoing would be out of character. He also contends that Dennis McLean, Vice President of S. S, was the actual wrongdoer and claims that the company’s success led him to neglect quality control, a scenario he deems mere negligence, not warranting a jail sentence. Additionally, he believes the jury conflated his responsibilities with those of the company. However, these arguments lack substantive evidence and rely on his desire for the jury to favor his perspective.
When viewed favorably to the Government, there is substantial evidence of Glymph's knowledge. Testimony indicated that, as a key figure in a small company, he was integral to the ordering process and responsible for inspecting parts according to the quality control manual. Each invoice submitted to the Department of Defense included Glymph's signature affirming that the supplies met all contractual requirements. Evidence presented showed that nonconforming parts could have been identified through a basic inspection.
Specific examples include Count Eight, where the parts delivered had incorrect threading contrary to the order specifications, and Count Nine, where the size of clamps ordered significantly differed from what was specified. Both instances suggest that a reasonable inspection by Glymph could have revealed these discrepancies, indicating he knew or deliberately avoided knowing about the nonconformities.
Direct evidence indicated Glymph's knowledge of improper conduct in Counts Six, Seven, and Twelve. In Counts Six and Seven, Glymph ordered carbon steel tube caps instead of the required stainless steel for submarines, explicitly instructing Dennis McLean to ship the carbon steel as is, noting that he would address any inquiries only if they arose. In Count Twelve, Glymph directed Martha Smith to seek quotes from an unauthorized dealer for GE Alco poppet valves, dismissing her concerns by stating they had not been caught and asserting his authority over company operations. Smith was also instructed not to inform Ray Bartee, the QAR, about the discrepancies.
The jury's evaluation of the evidence led to reasonable conclusions about Glymph's awareness or deliberate ignorance of the contractual failures. Their acquittals on six counts indicated a careful consideration of the quality of evidence presented for each charge.
Glymph contested the enhancement of his sentence based on a claimed lack of a position of trust with the Department of Defense (DOD), arguing that he functioned as a typical contractual partner without special obligations. The court referenced U.S.S.G. § 3B1.3, which allows for a two-level enhancement if a defendant abused a position of trust or used a special skill to facilitate the offense. This enhancement requires that the position of trust significantly contributed to the offense, distinguishing it from cases involving less discretion, such as those involving bank tellers or hotel clerks.
Factors for determining a position of trust include whether the defendant had unique duties or access to information, the level of supervision, and whether the defendant's actions were more culpable than those of similarly positioned individuals.
Determining whether a defendant held a position of trust must consider the victim's perspective. The district court found that Glymph occupied such a position based on the self-certification process known as the "Alternate Release Procedure," which permitted Glymph to certify compliance without independent verification from government inspectors. This lack of oversight meant that parts could be shipped without detection of discrepancies in compliance with orders, as the issues might not be identified until the products were in use.
Count Eleven indicated that S. S delivered hose assemblies made with commercial-grade hose instead of the military-spec hose required. Glymph's reliance on United States v. Broderson is deemed misplaced; Broderson lacked a position of trust because he was not given special discretion by the agency. In contrast, Glymph was entrusted with self-certification, and the Department of Defense delegated inspection responsibilities to him, which he abused for profit by sending nonconforming shipments.
The district court's decision that Glymph held a position of trust was not clearly erroneous, and the judgment was affirmed. Glymph also contested a four-year debarment, arguing it exceeded the three-year maximum set by regulations. However, the court clarified that the length of the debarment was not unconstitutionally excessive and could be interpreted as either punitive or protective of government interests. No evidence suggested that the additional year of debarment altered its intended remedial nature.
