United States v. David Lewis
2014 U.S. App. LEXIS 23049
| 5th Cir. | 2014Background
- David Kevin Lewis co-founded Always Consulting, Inc. (ACI) and was charged with one count of conspiracy (18 U.S.C. § 371) and 23 counts of securities fraud/aiding and abetting (15 U.S.C. § 77q(a), § 77x, 18 U.S.C. § 2) relating to sales of interests in the Rattlesnake Springs drilling program. He was tried with co-defendant Bruce Griffith (who testified for the government) and Thomas Markham.
- Lewis was alleged to have run ACI operations, drafted the offering memorandum and sales scripts, supervised salespeople, and suppressed disclosure of prior criminal convictions; the offering memorandum and scripts contained material misrepresentations and omissions about experience, financing, profitability, and infrastructure.
- Only five of the 23 victim-investors testified; for the remaining (Challenged Counts) the government introduced checks and signature pages and evidence the offering memorandum and scripts were circulated to investors.
- Jury convicted Lewis on all counts; district court denied post-trial Rule 29 motions. Lewis appealed, challenging sufficiency of evidence, admission of Government Exhibit 115 (GX115), and statute-of-limitations/ex post facto issues.
- Fifth Circuit reviewed de novo sufficiency claims and for abuse of discretion evidentiary rulings, and affirmed—finding sufficient evidence linking Lewis to the non‑testifying investors and conspiracy, holding any error in admitting GX115 harmless, and concluding Lewis waived his statute‑of‑limitations defense by failing to raise it at trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for securities‑fraud counts tied to non‑testifying investors | Gov’t: offering memo and scripts authored by Lewis circulated to investors; checks/agreements admitted show impact | Lewis: no direct contact with those investors; their decisions could have been influenced by other salespeople; absent testimony, "some impact" not proved | Affirmed — circumstantial evidence (memo, scripts, checks, testimony that memo was sent and that author would have affected decisions) suffices to show "some impact" and intent; jury may draw reasonable inferences |
| Sufficiency of evidence for conspiracy (18 U.S.C. § 371) | Gov’t: testimony (Griffith, Markham) plus documentary evidence show agreement, Lewis’s knowledge, and overt acts (drafting memo) | Lewis: contested who ran ACI; claimed he resigned management role in 2004 so lacked agreement/participation | Affirmed — evidence permitted a rational jury to find Lewis knowingly joined conspiracy and committed overt acts; minor role or management dispute immaterial |
| Admissibility of GX115 under business‑records/hearsay exceptions | Gov’t: GX115 rebuts Lewis’s claim he was not in charge; admitted as business record | Lewis: GX115 is hearsay within hearsay, unreliable, and admission was prejudicial | No reversible error — even assuming error, other documentary evidence (meeting minutes, employee handbook, director resolution) established same facts; admission was harmless |
| Statute of limitations / ex post facto challenge to extension (18 U.S.C. § 3301) | Lewis: extension to six years violates ex post facto / retroactivity concerns; should bar prosecution | Government: extension applies; alternatively, Lewis failed to preserve the defense | Affirmed — Lewis waived limitations/ex post facto challenge by failing to assert the defense at trial, so court did not reach merits |
Key Cases Cited
- Fuchs v. United States, 467 F.3d 889 (5th Cir. 2006) (standard of review for denial of motion for judgment of acquittal)
- Harris v. United States, 740 F.3d 956 (5th Cir. 2014) (sufficiency review — view evidence in the light most favorable to verdict)
- Ashdown v. United States, 509 F.2d 793 (5th Cir. 1975) (‘‘some impact’’ standard for mail/ securities fraud — specific investor reliance not required)
- Freeman v. United States, 434 F.3d 369 (5th Cir. 2005) (sufficiency can be met without victim testimony where other evidence shows impact)
- Grant v. United States, 683 F.3d 639 (5th Cir. 2012) (jury’s credibility determinations and inferences control on appeal)
- Coleman v. United States, 609 F.3d 699 (5th Cir. 2010) (elements of conspiracy under § 371)
- Heard v. United States, 709 F.3d 413 (5th Cir. 2013) (abuse‑of‑discretion/harmless‑error standard for evidentiary rulings)
- El‑Mezain v. United States, 664 F.3d 467 (5th Cir. 2011) (harmlessness where other substantial evidence supports same facts)
- Arky v. United States, 938 F.2d 579 (5th Cir. 1991) (statute‑of‑limitations is an affirmative defense that must be asserted at trial to preserve it for appeal)