UNITED STATES of America, Plaintiff-Appellee, v. Michael JIMENEZ, Defendant-Appellant.
No. 11-15039.
United States Court of Appeals, Eleventh Circuit.
Jan. 25, 2013.
705 F.3d 1305
IV.
For the reasons stated above, we find no reason for disturbing the District Court‘s judgment on Counts One and Four of SJH‘s complaint. The judgment is, accordingly,
AFFIRMED.
I. FACTUAL BACKGROUND
Jimenez‘s conviction arises from his tenure as the Deputy Director of Fiscal and Administrative Services for Hillsborough County‘s Head Start Program (Head Start). Head Start is a county operated, federally funded program that provides education and health care to preschool children from low-income families. The program has branches in almost every county in the United States. Jimenez began working at Head Start in 2007.
Jimenez‘s wife, Johana Melendez Santiago (Melendez), is a microbiologist and an instructor at Hillsborough Community College. Betwеen 2007 and 2009, Melendez made several presentations on bloodborne pathogens to Head Start employees, most of whom were aware that she was Jimenez‘s wife. In the spring of 2010, Melendez sent an e-mail to her husband concerning a book she had recently written. The book, Travel Boy Helps Sebastian Trapping the Germs/El Niño Viajero ayuda a Sebastián Atrapando los gérmenes (Travel Boy), is a bilingual children‘s book written to educate children “about germs and their relationship to disease.” In the e-mail, Melendez suggested that Head Start could use the book to “encourage kids to read.” Jimenez relayed this information to his peer, Marie Mason, Head Start‘s Deputy Dirеctor of Program Services. From the beginning, Mason knew that Jimenez‘s wife had authored Travel Boy. Jimenez and Mason brought a copy of the book to Marcia Bell, a registered nurse with Head Start. Mason asked Bell to look at the book and offer her opinion on whether Head Start should order copies of the book for Head Start‘s children.
Tоdd B. Grandy, Linda Julin McNamara, Robert E. O‘Neill, U.S. Attys., Tampa, FL, for Plaintiff-Appellee.
Craig L. Crawford, Rosemary Cakmis, Donna Lee Elm, Fed. Pub. Defenders, Orlando, FL, for Defendant-Appellant.
Before WILSON and COX, Circuit Judges, and VINSON,* District Judge.
WILSON, Circuit Judge:
Defendant-Appellant Michael Jimenez appeals his conviction for intentionally misapplying $5,000 or more from an organization receiving in excess of $10,000 in federal funds in а one-year period, in violation of
Aftеr several e-mail exchanges, on May 3, 2010, Navejar requested new quotes from Melendez, with the caveat that the total price could not exceed $10,000. Purchases exceeding $10,000 are handled by Hillsborough County‘s procurement office, rather than Head Start personnel. Navejar could not recall who told her to keep thе order under $10,000, but Mason eventually authorized Bell to do just that.
That same day, Mason initiated and approved a $9,000 purchase order for 750 copies of Travel Boy. Mason‘s order also received the rubber stamp of Louis Finney, Jr., Head Start‘s Division Director. In June 2010, Melendez delivered the books to Head Start, and submitted a vendor request form that included а W-9 for her company. Linda Edman processed a report authorizing payment to Melendez for the books. Jimenez signed a form acknowledging that the books had been received, and on July 1, 2010, Head Start issued a $9,000 check to Melendez.
Throughout the time period at issue in this case, Head Start required every employee to comрlete appropriate disclosure forms within 45 days of any change in his “conflict of interest” status, which included circumstances in which an employee‘s spouse entered into a contractual relationship with Head Start. Jimenez failed to disclose the conflict of interest stemming from his wife‘s transaction with Head Start.
II. PROCEDURAL BACKGROUND
In April 2011, a federal grаnd jury indicted Jimenez, Mason, and Melendez on charges of fraud. On July 14, 2011, a Tampa jury found Jimenez guilty on two of three fraud counts: (1) intentionally misapplying funds concerning programs receiving federal funds in violation of
After the verdict, Jimenez moved for acquittals on his honest services fraud and
III. ANALYSIS
We review de novo the denial of a motion for a judgment of acquittal, viewing the evidence in the light most favorable to the government. United States v. Keen, 676 F.3d 981, 989 (11th Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 573, 184 L.Ed.2d 377 (2012). A conviction will be upheld “unless the jury сould not have found the defendant guilty under any reasonable construction of the evidence.” United States v. Merrill, 513 F.3d 1293, 1299 (11th Cir.2008). Put another way, we will only reverse a verdict if the record demonstrates a lack of evidence from which a jury could find guilt beyond a reasonable doubt. See United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.2005) (per curiam).
(a) Whoever—
(1) being an agent of an organization, or of a State, local, or Indian tribal government, or any agency thereof—
(A) embezzles, steals, obtains by fraud, or otherwise without authority knowingly converts to the use of any person other than the rightful owner or intentionally misapplies, property that—
(i) is valued at $5,000 or more, and
(ii) is owned by, or is under the care, custody, or control of such organization, government or agency[,]
commits a felony.
Courts have struggled to discern
We find the Seventh Circuit‘s opinion in Thompson helpful—if not to definitively decide what “intentionally misapplies” means, at the very least to decide what it does not mean. In Thompson, Georgia Thompson, the section chief of Wisconsin‘s Bureau of Procurement, appealed her
The prosecution speculated that Thompson had steered a government contract to Adelman for “political reasons.” Id. at 878. The potential political reasons included: (1) Adelman was a local business; (2) Adelman‘s president had been a financial supporter of Wisconsin‘s governor; and (3) Thompson favored Adеlman because it was cheaper, and the governor had promised to run a more cost-effective government. Id. at 879–80. Based on this, and nothing more, Thompson was convicted of “intentionally misapplying” funds. Id. at 878.
On appeal, the Seventh Circuit decided that a jury could not have found beyond a reasonable doubt that Thompson intentionаlly misapplied agency funds. Id. at 880. Thompson received neither a bribe nor a kickback, and at worst she had made a “deviation from state procurement rules.” Id. Thompson‘s conduct was not an intentional misapplication because “[a]s long as the state [got] what it contract[ed] for, at the market price, no funds have been misapplied, even if the state‘s rules should have led it to buy something more expensive (and perhaps of higher quality too).” Id. at 881–82. We can assume that if the contract price had included a bribe or a kickback to Thompson, the evidence would have been sufficient to affirm her conviction. See id. at 881. We read Thompson to stand for the general rule that minor deviations of state or local law are not always sufficient to establish an “intentional misapplication,” especially when the record evinces neither a bribe nor a kickback.
What was beyond dispute in Thompson was that the defendant herself applied the funds: she was the section chief of the procurement office, she presided over thе bidding process, and she suggested that the contract be rebid in a best-and-final procedure. Id. at 878–79. Yet Thompson‘s conduct did not implicate the “mis” in “misapply” because the state got what it
In the present case we deal with a different question: our focus is not on the prefix оf “misapply,” but rather on the verb‘s stem. In other words, one cannot “misapply” funds without having “applied” them in the first place. Because we conclude that the evidence is insufficient to demonstrate that Jimenez “applied” or directed any funds whatsoever, his conviction must be reversed.
Black‘s Law Dictionary defines “misapplicatiоn” as “the improper or illegal use of funds or property lawfully held.” Black‘s Law Dictionary 1073 (9th ed. 2009). In circular fashion, “use” is defined as “the application or employment of something.” Id. at 1649. By way of example, we have held that an agency‘s Chief Financial Director, who had supervisory authority over federal grants, intentionally misappliеd funds when he misused them for personal expenses. See, e.g., United States v. Williams, 527 F.3d 1235, 1244–45 (11th Cir.2008); see also United States v. Baldridge, 559 F.3d 1126, 1139 (10th Cir.2009) (upholding a
Whatever its precise definition, circuit caselaw indicates that “misapply” is a verb connoting an actor who exercises some degree of power over his agency‘s purse. In light of that interpretation, we hold that the prosecution‘s evidence could not have demonstrated that Jimenez misapplied Head Start‘s funds.
The government points to United States v. Cornier-Ortiz for the proposition that whenever the employee of a
The prosecution points to three supposedly incriminating actions by Jimenez: (1) he forwarded an e-mail from his wife to Mason; (2) he was with Mason when she asked Bell for her opinion on Travel Boy; and (3) he approved a receiving report that acknowledged Head Start‘s receipt of the books. From these three actions, the prosecution contends that Jimenez committed a federal felony. We, however, are convinced by the evidence that Mason, and not Jimenez, directed the application of funds in this case. No reasonable jury could have found otherwise. It was Mason who asked Bell for her opinion of Travel Boy; it was Mason who told Bell to order the book; it was Mason who initiated the purchase order; and, finally, it was Mason who approved the purchase order.3 Admittedly, Jimenez did not disclose his wife‘s financial stake in the transaction, but we are reluctant to metamorphose every municipal misstep into a federal crime.
We recognize the ambitious objectives of
REVERSED AND REMANDED.