United States v. EbersoleUnited States v. Ebersole
- Reporters:
- ,
- Before:
- King, Wilkinson, Michael
COUNSEL
ARGUED: Gregory Edward Stambaugh, Manassas, Virginia, for Appellant. Thomas Higgins McQuillan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Robert C. Erickson, Assistant United States Attorney, Alexandria, Virginia, for Appellee.
KING, Circuit Judge:
Russell Lee Ebersole appeals his convictions and sentence on twenty-five counts of wire fraud, in violation of
I.
Ebersole was the president and director of a business called Detector Dogs Against Drugs and Explosives, Inc. (“Detector Dogs“), a privately held Maryland corporation. Detector Dogs trained dogs and their human handlers to find drugs and explosives, and then offered the services of the canine teams to customers. Ebersole operated Detector Dogs alongside a pet boarding and training facility in Frederick County, Virginia, in the Western District of Virginia, as well as from his home in Hagerstown, Maryland.
In the aftermath of the September 11, 2001 terrorist attacks, federal agencies urgently sought the services of qualified explosive ordnance detection canine teams (sometimes referred to as “EOD canine teams” or “bomb-sniffing canine teams“) for the protection of their employees and the public. Among those agencies were the Department of State (the “State Department“), through its primary contractor, Intercon Security Services, Inc. (“Intercon“), for the State Department‘s Harry S Truman Building in Washington, D.C.; the Board of Governors of the Federal Reserve System (the “BOG-FED“), also for buildings in Washington; and the Internal Revenue Service (the “IRS“), through its primary contractor, Worldwide Security Services, Inc.
Detector Dogs was paid more than $212,000 for services it rendered to the State Department during the period of the Intercon subcontract. Detector Dogs had submitted its invoices to Intercon in the District of Columbia. Intercon then reviewed and approved those invoices for payment, paid Detector Dogs by check, and submitted Intercon invoices (with the Detector Dogs invoices attached) to a State Department office in Washington, D.C. Consistent with State Department procedures, the Washington office initially approved the Intercon invoices, and then forwarded them for final payment authorization to a State Department office in Rosslyn, Arlington County, Virginia, in the Eastern District of Virginia. Upon final approval of the Intercon invoices, the State Department‘s Rosslyn office communicated by wire with a Treasury Department office in Kansas City, Missouri, which paid Intercon.
Detector Dogs began providing services at BOG-FED buildings in Washington, D.C., on October 9, 2001. In a covert on-site test performed on April 4, 2002, three of the Detector Dogs dogs failed to detect the presence of fifty pounds of trenchrite 5 dynamite, fifty pounds of TNT, and fifteen pounds of the plastic explosive C-4 contained in three separate unmarked vehicles that were allowed to enter a BOG-FED parking garage. Based on those test results, the BOG-FED cancelled its contract with Detector Dogs on April 30, 2002.
The BOG-FED paid Detector Dogs approximately $392,000 for its services. Once the BOG-FED had decided to pay a particular Detector Dogs invoice, relevant data was entered into a computerized accounting system in Washington and then transmitted to the Federal Reserve Bank in Richmond, Virginia, in the Eastern District of Virginia, where the BOG-FED maintained an account. The amount of the Detector Dogs invoice was thereafter: (1) debited from the BOG-FED account at the Federal Reserve Bank; (2) credited to the Bank of America‘s reserve account, also at the Federal Reserve Bank; and (3) credited by the Bank of America from its reserve account to an
As for the services provided by Detector Dogs to the IRS, Worldwide informed Detector Dogs that its bomb-sniffing canine teams would be subjected to on-site operational testing at the inception of the job. The Detector Dogs teams began work at the IRS Fresno service center in early 2002, and they subsequently failed tests involving odor detection of hidden explosives on March 19, 25, and 26, and April 29, 2002. On May 16, 2002, Worldwide terminated its subcontract with Detector Dogs for the IRS-Fresno work. Detector Dogs received approximately $92,000 for its services to the IRS. Worldwide had paid Detector Dogs by wire transfer from its bank in Chicago, Illinois, to the reserve account that Detector Dogs‘s bank, the Bank of America, maintained at the Federal Reserve Bank of Richmond. Those payments then were credited by the Bank of America to Detector Dogs‘s account at the bank‘s Frederick, Maryland branch office.
Ebersole also pursued a contract for Detector Dogs to provide bomb-sniffing canine teams to the Federal Emergency Management Agency (“FEMA“) for its disaster field office in New York City. On September 27, 2001, Ebersole dispatched a dog-and-handler team to New York City for FEMA; however, the team returned to Maryland the next day without performing any work. FEMA had agreed to reimburse Detector Dogs for travel expenses. Although the handler submitted expenses to Ebersole of $1,100 for the overnight trip, Ebersole submitted an invoice to FEMA in the sum of $11,514.
As instructed by FEMA, Ebersole sent that invoice to a post office box in Berryville, Clarke County, Virginia, in the Western District of Virginia. In the normal course of business, a FEMA employee retrieved mail sent to that post office box, including the Detector Dogs invoice, and transported it to a central mail processing facility located in neighboring Loudoun County, Virginia, in the Eastern District of Virginia. The invoice then was routed to the appropriate person in FEMA‘s Disaster Finance Division, at an office in Berryville. The central mail processing facility and the Disaster Finance Division office are located within FEMA‘s sprawling facilities on Mount Weather, which straddles Clarke and Loudoun counties. The Detector
In all, the federal agencies paid Ebersole more than $708,000 for bomb-sniffing canine team services. On the basis of these activities and the payments made to Ebersole, and as explained below, the Government instigated and prosecuted the underlying proceedings.
II.
A.
A grand jury in the Eastern District of Virginia returned an indictment against Ebersole on March 13, 2003, charging him with twenty-six counts of wire fraud and two counts of presenting false claims to the government.2 The indictment generally alleged that Ebersole had devised a scheme to obtain money from the federal agencies by inducing them — by means of false and fraudulent pretenses, representations, and promises — to use Detector Dogs‘s services.
Ebersole unsuccessfully challenged the propriety of venue at various points in the district court proceedings.8 Ebersole‘s trial began on June 9, 2003. On June 20, 2003, the jury returned a verdict of guilty
B.
As a general proposition, venue is proper in any district where the subject crime was committed. United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001) (citing
The prosecution bears the burden of proving venue by a preponderance of the evidence and, when a defendant is charged with multiple crimes, venue must be proper on each count. Bowens, 224 F.3d at 308. For some offenses, there may be “more than one appropriate venue, or even a venue in which the defendant has never set foot.” Id. at 309 (citations omitted).
The Supreme Court has cautioned that the question of venue in a criminal case is more than a matter “of formal legal procedure“; rather, it raises “deep issues of public policy in the light of which legislation must be construed.” United States v. Johnson, 323 U.S. 273, 276 (1944). The Court also has observed that the venue provisions of the Constitution are meant to act as safeguards, protecting the defendant from bias, disadvantage, and inconvenience in the adjudication of the charges against him. Travis v. United States, 364 U.S. 631, 634 (1961) (citing
1.
With regard to the twenty-five wire fraud counts, Ebersole first contends that the district court erred in treating wire fraud as a “continuing offense,” triable under
a.
Ebersole initially pressed his theory that wire fraud does not constitute a “continuing offense,” for purposes of establishing venue under
In rejecting Ebersole‘s contention, the district court reasoned that, where the purpose of a wire fraud scheme is to obtain money, the crime is not complete until the perpetrator has been paid. Accordingly, the court held that venue would be appropriate under
During Ebersole‘s trial, on June 18, 2003, the court instructed the jury that venue was proper on the wire fraud counts “if any act in furtherance of the wire fraud allegations occurred in the Eastern District of Virginia,” including Rosslyn, in Arlington County, and the City of Richmond. The court explained that
[a]n offense is not complete until it‘s complete, and the offense of making — of a scheme to defraud is not complete until there has been a victim, and in this case, the allegation is that the government agencies were victimized, because they let these contracts, they made the payments, they handled the various invoices and documents, and within the course of that processing, the wires were used.
Ebersole did not object to this instruction, despite being afforded several opportunities to do so. However, Ebersole did challenge venue on the wire fraud counts in: his pretrial motion seeking dismissal of the indictment; his general “continuing objections” to venue, noted during the trial on June 16, 2003, at the close of the prosecution‘s case-in-chief; and his post-trial motion for judgment of acquittal.
Ebersole therefore preserved his particularized claim of error — i.e., that wire fraud does not constitute a “continuing offense” under
Contrary to Ebersole‘s “continuing offense” contention, the venue instruction on the wire fraud counts did not constitute legal error, and, thus, the court did not abuse its discretion. That is, the court correctly identified wire fraud as a “continuing offense,” as defined in
Here, the nature of the offense alleged was “the act of causing a wire to be transmitted in furtherance of a fraud.” Kim, 246 F.3d at 191. Wire communications used in making payment from the federal agencies to Ebersole — i.e., those that “caused the fraud to bear fruit” — were certainly “essential to the continuing offense of causing fraudulent wires to be transmitted.” Id. at 193. Each of those transmittals occurred “both where it was sent and where it was received.” Id. at 191; see also United States v. Donato, 866 F. Supp. 288, 292 (W.D. Va. 1994). Venue was therefore proper on the wire fraud charges
b.
Alternatively, Ebersole asserts that, even if wire fraud constitutes a continuing offense for venue purposes, venue on the wire fraud counts against him was not constitutionally permissible because he did not intend or foresee that his scheme would cause the transmittals into and out of the Eastern District of Virginia. Ebersole relies for that contention on a decision of the Southern District of New York. See United States v. Bezmalinovic, 962 F. Supp. 435, 441 (S.D.N.Y. 1997) (concluding that bank‘s ministerial acts of debiting and crediting accounts were insufficient to support venue on fraud charge, because it was unintended and unforeseeable by defendant that such acts would occur there); see also United States v. Svoboda, 347 F.3d 471, 483 (2d Cir. 2003) (recognizing that venue is proper in district where defendant intentionally or knowingly causes act in furtherance of charged offense to occur, or in district where it was foreseeable such act would occur).
Unfortunately for Ebersole, he did not raise his “foreseeability” objection to venue in a timely manner. That objection was first asserted in the district court after Ebersole had already been convicted by the jury, during the September 8, 2003 post-trial hearing on his motion seeking judgment of acquittal. Meanwhile, any venue defect based on a lack of foreseeability was apparent on the face of the indictment. That is, without alleging that any other relevant conduct occurred there, the indictment specified that wire communications in furtherance of Ebersole‘s fraud scheme were transmitted to and from
Because every fact giving rise to Ebersole‘s present foreseeability objection to venue clearly appeared on the face of the indictment, Ebersole waived that objection by waiting until the post-trial proceeding to raise it. See Collins, 372 F.3d at 633 (recognizing that if “the asserted venue defect ‘is apparent on the face of the indictment’ a defendant . . . waive[s] any objection if he fails to object prior to trial“) (quoting Melia, 741 F.2d at 71). Accordingly, without reaching the merits of Ebersole‘s foreseeability objection, we affirm Ebersole‘s convictions on the twenty-five wire fraud counts.
2.
With regard to the two false claims counts, Ebersole maintains that the district court erroneously ruled that those offenses were susceptible to trial in any district into which the victimized federal agency passed the subject claim, in the normal course of its business, following the claim‘s initial presentation to that agency. As explained below, we affirm Ebersole‘s convictions on the false claims counts.
a.
It is helpful to begin with a survey of the parties’ respective positions on proper venue for the false claims charges. Ebersole and the prosecution agree that venue on those counts is controlled by our decision in United States v. Blecker, 657 F.2d 629 (4th Cir. 1981). However, the parties espouse competing views as to the reach of the Blecker decision.
In Blecker, the defendant-subcontractors had prepared false claims in Maryland and then submitted them to a contractor at its office in Rosslyn, Virginia, knowing that the contractor would in turn present those claims to a government office in Washington, D.C. 657 F.2d at 631. We recognized that the presentation of false claims to the government constitutes a continuing offense under
Ebersole maintains on appeal that our Blecker decision stands for the principle that false claims charges are triable exclusively in those districts in which: (1) the defendant prepared the claim; (2) the claim was initially presented to the government by the defendant or an intermediary; or (3) the claim was submitted to an intermediary by the defendant, who possessed knowledge that the intermediary would then present it to the government. Under Ebersole‘s view, venue would have been proper on the State Department-related count in the District of Columbia (where both Ebersole submitted that claim to Intercon, and Intercon in turn presented it to the State Department), and on the FEMA-related count in the Western District of Virginia (where Ebersole initially presented that claim to FEMA, at its Berryville post office box).13 Ebersole insists that, under Blecker, venue was defective in the Eastern District of Virginia on each of the false claim charges, because those claims passed through that district only after they had already been presented to the respective federal agencies and, thus, his offenses had already been completed.
By contrast, the prosecution endorses a more expansive interpretation of Blecker. The prosecution relies on our statement in Blecker that venue would be proper on a false claim charge in the district where the subject claim “ultimately came to rest” with the victimized federal agency. See Blecker, 657 F.2d at 632. The prosecution main-
b.
The prosecution has urged its broad interpretation of Blecker since at least April 14, 2003, when it filed its response to Ebersole‘s pretrial motion seeking dismissal of the indictment. Ebersole challenged the prosecution‘s reliance on Blecker on various legal and factual grounds during the pretrial proceedings. Unpersuaded, the district court denied Ebersole‘s pretrial motion following the May 2, 2003 hearing.
During the trial, on June 16, 2003, Ebersole made his motion for judgment of acquittal on the FEMA-related count, pursuant to
it is sufficient for venue purposes if the claim that allegedly was false passed through the Eastern District of Virginia before coming to the final office where it was paid. It is equally sufficient for venue purposes if the claim that allegedly was false was submitted initially to a department or agency located in another judicial district, an[d] then, in the normal course of business, was sent to an office within the Eastern District of Virginia for payment.
During the charge conference conducted by the district court on June 18, 2003, the court overruled Ebersole‘s objection to the prosecution‘s venue instruction and incorporated it into the charge delivered to the jury later that same day.
The views espoused by Ebersole before and during trial were not nearly as thorough and clear as his much more particularized and coherent post-trial contentions with regard to the scope of proper venue under Blecker. Nonetheless, Ebersole‘s
Therefore, we review the substance of the venue instruction on the false claims counts for abuse of discretion. See Higgs, 353 F.3d at
c.
Ebersole‘s appellate contention causes us to consider an issue of first impression: whether, as Ebersole‘s jury was instructed, venue on a false claim charge may be proper in a district into which the victimized government agency had passed the subject claim after its initial presentation to that agency (either by the defendant or an intermediary). For the reasons that follow, we conclude that the court‘s venue instruction correctly stated the law and, thus, did not constitute an abuse of discretion.
We look, of course, to Blecker. The parties’ competing interpretations of Blecker (including its reference to proper venue in the district where a false claim “ultimately came to rest” with the government) are possible because that case did not involve an agency internally passing a false claim from district to district after its initial presentation directly to that agency. See 657 F.2d at 632. Rather, Blecker focused on an issue that is factually distinct from that before us here: whether venue was proper in the district where the defendants submitted false claims to an intermediary, knowing that the intermediary would in turn present the claims to the government. See id. at 631-33 (concluding that venue was proper in such circumstances under a “passing through” theory). Nonetheless, Blecker provides us with ample guidance.
First of all, it was determined in Blecker that a violation of the false claims statute may be treated as a “continuing offense” under
We already know, as demonstrated in Blecker, that a false claim may be “presented” in more than one district. That is, Blecker recognized that venue was proper in both the district where false claims were presented to an intermediary, and the district where the intermediary presented the claims to the government. 657 F.2d at 633. Indeed, in Barsanti, where the “passing through” theory was extended to false statement offenses under
While the facts of Blecker are different than those presented here, the distinctions are without legal consequence. In Blecker, the false claims at issue were “presented” twice, thus establishing venue in two different districts based on the locations of the presentations of the claims. It necessarily follows, therefore, that Ebersole‘s false claims could be “presented” multiple times. As nothing in Blecker compels a contrary conclusion, it is of no significance that the false claims there were presented directly to the targeted federal agency just once (by the intermediary), and that Ebersole‘s false claims were presented directly to the agencies multiple times (as they passed the claims internally in the course of processing them for payment).
We are persuaded to this conclusion by the Second Circuit‘s decision in Candella, in which we found support in Blecker for our “passing through” theory. See Blecker, 657 F.2d at 633. We observed in Blecker that, “[p]resented with a similar factual situation, the Second Circuit has implied that venue is proper in either the district in which the false claim is submitted to the intermediary or the district in which the intermediary transmits the false claim to the agency.” Id. (citing Candella, 487 F.2d at 1227-28).
The defendants contended that they should have been prosecuted in the Eastern District of New York, instead of the Southern District. Candella, 487 F.2d at 1227. The Second Circuit concluded, however, that venue was proper in each of those districts, invoking
[t]he force propelled here by the defendants immediately contemplated Manhattan.
18 U.S.C. § 1001 defines the offense as the making of a false or fraudulent statement or representation in a matter within the jurisdiction of a federal agency. The false statements here were intended to produce funds. The statements continued to be false and continued to be within the jurisdiction of the United States not only when initially presented but also upon arrival in Manhattan, where the decision was reached to make the funds available. Venue for all counts thus was properly laid in the Southern District of New York.
Id. (internal citation omitted).
In these circumstances, venue was proper on each of the false claims counts in the Eastern District of Virginia, as one of several districts “through which force propelled by [Ebersole] operate[d]” as the claims proceeded through the necessary channels on their way to producing funds. Candella, 487 F.2d at 1227 (internal quotation marks omitted). That is, Ebersole’s State Department-related claim was “presented” in the Eastern District of Virginia (in addition to the District of Columbia), and his FEMA-related claim was “presented” in the Eastern District of Virginia (as well as the Western District of Virginia and the district encompassing FEMA’s office in New York). See Blecker, 657 F.2d at 632. Because the district court’s venue instruction on the false claims charges adequately reflected these legal principles, the instruction did not constitute an abuse of discretion.
III.
A.
On September 8, 2003, after denying Ebersole’s post-trial motion seeking judgment of acquittal, the district court proceeded to sentence him pursuant to the Sentencing Guidelines. In determining Ebersole’s sentencing range, the court grouped the twenty-seven wire fraud and false claims counts together. See
On April 28, 2004, Ebersole filed his opening appellate brief, in which he contends that the district court erroneously applied the enhancement for abuse of a position of trust, as well as the enhancement for an offense involving conscious or reckless risk of death or serious bodily injury. The Supreme Court subsequently rendered its decision in Blakely v. Washington, 124 S. Ct. 2531, 2537-38 (2004) (holding that sentence imposed under Washington State sentencing scheme violated Sixth Amendment because it was enhanced based on judge-found facts). Ebersole thereafter filed a motion to remand this case to the district court for further proceedings or, in the alternative, for leave to file a supplemental brief addressing Blakely.
By Order of August 18, 2004, we denied Ebersole’s motion to remand; granted his motion to file a supplemental brief, deeming the motion to be the supplemental brief; and denied his Blakely claim on its merits in light of our Order of August 2, 2004 in United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (determining that Blakely did not operate to invalidate sentence imposed under federal Sentencing Guidelines), opinion issued by 381 F.3d 316, 353-54 (4th Cir. 2004) (en banc). Since then, however, the Supreme Court has applied its reasoning in Blakely to the Sentencing Guidelines, see Booker, 125 S. Ct. at 746, and has granted certiorari in Hammoud and vacated our
B.
In reviewing Ebersole’s sentence, we first re-examine, in light of Booker, his contention that his sentence violated the Sixth Amendment. Next, we consider the propriety of the contested sentencing enhancements. As set forth below, we conclude that Ebersole is entitled to resentencing under Booker, and that the enhancement for abuse of a position of trust is improper in the present circumstances.
1.
Ebersole raised the Sixth Amendment challenge to his sentence for the first time on appeal. Therefore, with regard to that contention, we review his sentence for plain error under the familiar Olano mandate. See Olano, 507 U.S. at 732; see also United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005). The Olano conditions are satisfied here.
First, the district court’s imposition of the seventy-eight-month sentence constituted error under Booker. See 125 S. Ct. at 746 (holding Sixth Amendment contravened when sentencing court, acting pursuant to Guidelines, imposes sentence greater than maximum authorized by facts found by jury alone). Under the then-mandatory Guidelines regime, the jury verdict supported an offense level of 6, resulting in a sentencing range of zero to six months. However, that jumped to an offense level of 26 — carrying a sentencing range of sixty-three to seventy-eight months — because of the application of various enhancements based on facts found solely by the sentencing judge. Thus, as Booker has taught us, the court erred in relying on its own fact-finding to impose a sentence of greater than six months. See Hughes, 401 F.3d at 547 (recognizing that imposition of sentence, “in part based on facts found by the judge, . . . constituted error“).
Second, although Ebersole’s Sixth Amendment contention was foreclosed by our precedent at the time of his sentencing, Booker has since “abrogated our previously settled law,” rendering the error plain.
Finally, to affirm Ebersole’s sentence despite the error would seriously affect the fairness, integrity, or public reputation of the judicial proceedings. In the wake of Booker, as we have recognized, the Guidelines are to be treated as advisory, rather than mandatory, and sentences that fall within the statutorily prescribed range are reviewable only for reasonableness. Hughes, 401 F.3d at 546 (citing Booker, 125 S. Ct. at 765-68). The record before us does not indicate what sentence the court would have imposed on Ebersole had its exercised its discretion under
2.
Under the first step of the Booker remedial scheme, a court must determine the range prescribed by the Sentencing Guidelines after making any necessary findings of fact. See Hughes, 401 F.3d at 556. As a result, the same calculation issues raised in this appeal by Ebersole are likely to arise again upon remand. See id. We therefore choose to address Ebersole’s contentions that the district court improperly applied two particular enhancements to his sentence under the Guidelines. Id. And we express our agreement with the more compelling of those contentions: that the court misapplied the enhancement for abuse of a position of trust, under
The § 3B1.3 enhancement had been recommended in Ebersole’s presentence report (“PSR“) on the following grounds:
The defendant represented himself to various contract officers as an EOD handler certified by State and federal regulating agencies. Based on his spoken and written assertions
that he occupied a certified position of public trust, he was contracted to provide EOD services for three federal agencies. Mr. Ebersole abused that perceived position of trust to enrich himself.
The court adopted the PSR’s recommendation and imposed the enhancement over Ebersole’s objection. We review de novo the district court’s legal interpretation of what constitutes “a position of trust” under
A defendant deserves the two-level increase in his offense level under
We have cautioned in fraud cases in particular — where every defendant will have gained the confidence and trust of the victim — that fraud alone cannot justify the
As with the enhancement for abuse of a position of trust, the court imposed the reckless endangerment enhancement on recommendation of the PSR, which maintained that “sending ill-prepared dogs and handlers to patrol public buildings for explosive devices created a hazard to [Detector Dogs’s] employees, as well as to the employees of the federal agencies affected.” Ebersole contends that the enhancement was improper, because there were no injuries or deaths associated with his
IV.
Pursuant to the foregoing, we affirm Ebersole’s convictions, vacate his sentence, and remand to the district court for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
MICHAEL, Circuit Judge, concurring in part and dissenting in part:
I agree with most of the majority’s opinion and therefore concur in parts II.A, II.B.1, and III. I respectfully dissent, however, from the majority’s determination in part II.B.2 that venue was proper in the Eastern District of Virginia for the two false claims counts. See ante at 14-22. Because no part of the conduct that would constitute a false claims offense occurred in the Eastern District of Virginia, venue for the two counts was not proper there.
Under the Sixth Amendment a defendant has the right to be tried in the district in which the crime was committed.
The false claims statute provides that any person who knowingly “makes or presents” a false claim to an “agency or department” of the United States is guilty of a crime.
The majority correctly recognizes (1) that the conduct constituting a § 287 offense is the presentation of a false claim to an agency and (2) that the venue issue here turns on whether the false claims were presented to an agency in the Eastern District of Virginia. See ante at 18-19. Ebersole submitted one allegedly false claim to the Federal Emergency Management Agency (FEMA) in the Western District of Virginia and a second one to the Department of State in Washington, D.C. These agencies then forwarded the claims for processing to agency branch offices located in the Eastern District of Virginia. No one disputes that venue would have been proper in the district where Ebersole presented the claim to the particular agency, the Western District of Virginia for one and Washington, D.C., for the other. According to the majority, however, the false claims were again presented to the two agencies when the agencies forwarded the claims to their branch offices in the Eastern District of Virginia. The majority thus concludes that the offenses were also committed in the Eastern District of Virginia, making venue proper there as well. I respectfully disagree because the plain meaning of “present” forecloses a conclusion that the claims were again presented to the agencies when the agencies themselves transferred them to branch offices.
The word “present” means to “deliver formally for acceptance.” Webster’s Third New International Dictionary 1793 (1993). This definition indicates that an item is presented only when a person or entity delivers it to a different person or entity. Thus, the conduct constituting the offense of presenting a false claim does not include an agen
Our decision in United States v. Blecker does not help the majority. In that case we concluded that venue was proper (1) in the district where the defendants delivered the false claims to a private intermediary who, in turn, was to submit them to a government agency located in another district and (2) in the district where the private intermediary submitted the claims to the agency. Blecker, 657 F.2d at 632-33. According to the majority, Blecker establishes “that Ebersole’s false claims could be ‘presented’ multiple times,” and “it is of no significance that the false claims [in Blecker] . . . were presented directly to the targeted federal agency just once (by the intermediary), and that Ebersole’s false claims were presented directly to the agencies multiple times (as they passed the claims internally in the course of processing them for payment).” Ante at 19. Blecker, however, is entirely different from Ebersole’s case because the defendants in Blecker submitted the false claims to a private intermediary. When the private intermediary, in turn, submitted the claims on behalf of the defendants to the government agency, the intermediary’s act was part of the conduct constituting the offense, that is, the presentation of false claims to an agency. See
The majority’s decision in part II.B.2 is disquieting because it will allow the government to maneuver venue to its advantage in a false claims prosecution. After today, a defendant who submits a false claim in one district may be tried in any district where the claim
The district court submitted the false claims venue question to Ebersole’s jury with the following instruction: “it is sufficient for venue purposes if the claim that allegedly was false passed through the Eastern District of Virginia before coming to the final office where it was paid.” Record at 1986. This instruction is directly contrary to the simple fact that an agency cannot present a false claim to itself under
Notes
The wire fraud statute provides for criminal penalties, including fines and imprisonment, against
[w]hoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice.
[w]hoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent.