581 F.Supp.3d 90
D.D.C.2022Background:
- Paul Michael Guertin, a former State Department Foreign Service Officer, was indicted for wire fraud (18 U.S.C. § 1343) and obstruction of an official proceeding (18 U.S.C. § 1512(c)(2)) based on alleged lies on SF-86 security‑clearance questionnaires (2010, 2016) and to investigators.
- Allegations include nondisclosure of a sexual relationship with a foreign national, gambling‑related financial problems, and an undisclosed loan secured by his home; the indictment alleges the scheme’s purpose was to maintain his State Department employment and salary.
- The Government relied on wire transmissions and the State Department clearance process as the bases for the two federal charges.
- Guertin moved to dismiss the indictment for failure to state offenses under §§ 1343 and 1512(c)(2); the Court reviewed only the face of the indictment.
- The Court concluded the indictment fails as a matter of law and dismissed both counts.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lies on an SF‑86 to keep employment/salary can be a "scheme to obtain money or property" under § 1343 | Fraud enabled Guertin to obtain continued salary (thus "obtain" money/property) | He only sought to maintain a preexisting salary; "obtain" requires securing something not already possessed | Dismissed — "maintain" ≠ "obtain"; §1343 requires obtaining new money/property; extending it would revive disallowed honest‑services theory and raise lenity concerns |
| Whether obstructing a State Department security‑clearance background investigation/adjudication is an "official proceeding" under § 1512(c)(2) | The clearance process (all steps/stages) is a proceeding before a federal agency and thus an "official proceeding" | The clearance process is an informal, routine, investigatory/adjudicative action, not a formal tribunal or hearing covered by § 1515 | Dismissed — §1515/1512 limited to formal tribunals/hearings (agency sitting as tribunal); routine clearance adjudication is not an "official proceeding" under the statute |
Key Cases Cited
- Kelly v. United States, 140 S. Ct. 1565 (Sup. Ct.) (discusses elements of wire‑fraud statute)
- McNally v. United States, 483 U.S. 350 (1987) (mail/wire fraud limited to schemes to deprive victims of money or property, not intangible honest services)
- Skilling v. United States, 561 U.S. 358 (2010) (narrow construction of honest‑services statute to bribery/kickbacks)
- Yates v. United States, 16 F.4th 256 (9th Cir.) (rejected salary‑maintenance theory for fraud against employer)
- Goodrich v. United States, 871 F.2d 1011 (11th Cir.) (refused salary‑maintenance theory)
- Granberry v. United States, 908 F.2d 278 (8th Cir.) (upheld fraud conviction where scheme obtained new employment)
- Ramos v. United States, 537 F.3d 439 (5th Cir.) (internal investigatory steps are not an "official proceeding")
- Ermoian v. United States, 752 F.3d 1165 (9th Cir.) (interprets "official proceeding before a Federal Government agency" to mean agency acting as tribunal)
- United States v. Perez, 575 F.3d 164 (2d Cir.) (found a formal internal review panel could qualify as an "official proceeding")
- Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) (discusses requisite intent for obstructing judicial proceedings)
- Sebelius v. Cloer, 569 U.S. 369 (2013) (statutory terms given ordinary meaning when not defined)