United States v. Robert John NewbertUnited States v. Robert John Newbert
Rоbert John Newbert pleaded guilty to two counts of making false statements in a matter within the Defense Department’s jurisdiction, in violation of
FACTS AND PROCEEDINGS BELOW
Newbert was employed by Litton Guidance and Control System (“Litton”), a company that does ninety percent of its business with the Defense Department of the United States. Newbert’s duties were to procure items for the engineering section in which he worked, and to seek reimbursement for these items by submitting petty cash vouchers. Litton charged these vouсhers to its customers in two ways: directly to a specific contract, or indirectly allocated across multiple contracts. At month’s end, the direct and indirect costs were identified to specific contracts for billing purposes.
Based on a tip from a Litton employee, the Defense Criminal Investigative Service for the Department of Defense Inspector General’s Office contacted the Dеfense Contract Audit Agency to audit Litton’s petty cash account. The Department of Defense had procedures for conducting this investigation because such a large percentage of Litton’s businеss is with the United States government.
As a result of the investigation, Newbert was charged with making false statements within the jurisdiction of the United States in violation of
On August 17, 1990, Newbert was sentenced in accordance with the United States Sentencing Guidelines. Among other guidelines, the district court applied the “relevant conduct” provision, U.S.S.G. § lB1.3(а)(2), which enhanced Newbert’s base sentence to reflect the entire amount he falsified ($214,000), not just the amount for which he was convicted ($182.75). Since Newbert’s “relevant conduct” involved a sum over $200,000, his total offensе level was increased by one point, thereby increasing his possible term from
DISCUSSION
A district court’s legаl interpretation of the federal sentencing guidelines is reviewed
de novo,
and its factual determinations made in the course of applying the guidelines are reviewed for clear error.
United States v. Wilson,
Newbert pleaded guilty to violating
The United States Sentencing Guidelines §§ lB1.3(a)(2) and (a)(3) 1 mаndate sentencing consideration of a broad range of conduct (called “relevant conduct”) beyond the offense of conviction. Section lB1.3(a)(2) applies only to a certain class of crimes, including fraud and embezzlement, where the defendant was involved in a pattern of small thefts. The Guideline analysis of harm is based on quantity, and the conduct should therefore be viewed as a whole. U.S.S.G. § 1B1.3, comment, (bаckg’d.) Relevant conduct includes acts that were part of the same common scheme as the offense of conviction.
“The goal of the relevant conduct provision is to allow a court to impose sentences commensurate with the gravity of the offense.”
United States v. Kappes,
By pleading guilty, Newbert conceded that the federal government had jurisdiction over the charged offenses. Hе argues, however, that there is no proof that the uncharged vouchers, amounting to over $200,000, were either specifically billed to the Department of Defense or, if they were, that the expense was properly based on the government contract. He contends that these vouchers might have been billed to the non-government contracts which comprised ten percent of Litton’s business, and that without a conneсtion to the government, the jurisdiction element of § 1001 is not met.
In considering Newbert’s claim, two sub-issues seem to emerge: (1) whether uncharged conduct that does not violate federal law, but is part of the same common scheme as a federal crime, is included in the relevant conduct considered by the Guidelines, and (2) whether Newbert may be placed in double jeopardy because he
A.
Since the government has not proven that all the uncharged vouchers affected thе billing on government contracts, at least some of this relevant conduct might have violated state, not federal, law. We now consider, for the first time, whether non-federal relevant conduct can fall within the jurisdiction of § lB1.3(a)(2) of the federal guidelines. We hold that it can.
We find no intention by the Sentencing Commission to narrow §§ lB1.3(a)(2) and (a)(3) to federal conduct only. Those subsections specifically direct the consideration of all acts that were part of the same course of conduct or common scheme or plan, as well as all harm that resulted from those acts. The background comment stresses that the relevant cоnduct is established if it is a part of the same course of conduct. See U.S.S.G. § lB1.3(a)(2); U.S.S.G. § lB1.3(a)(2), comment, (backg’d.).
In the present case, all of Newbert’s actions took place in the same general course of cоnduct. There was no difference in the way he committed the state offenses compared to the federal offenses. His conduct was the same in either case. There is no indication the Sentencing Cоmmission intended to distinguish among the jurisdictional components of a clearly common pattern of criminal conduct. Rather, the Sentencing Guidelines evidence a clear intent that persons who commit а scheme of fraud be punished in accordance with the total harm caused by the fraud. The commentary to the relevant conduct provision notes that offenses like the one committed by Newbert, “oftеn involve a pattern of misconduct that cannot be readily broken into discrete, identifiable units that are meaningful for the purposes of sen-fencing” and that “what constitutes separate counts or offenses often turn[s] on technical elements that are not especially meaningful for purposes of sentencing.” U.S.S.G. § 1B1.3, comment, (backg’d.). Rather than rely on such technical distinctions between offenses that arе part of a pattern, the Guidelines’ approach is to rely on “the full range of related conduct.” Id. The commentary indicates this approach is important in dealing with “a pattern of small thefts.” Id.
B.
The second issue presented in this case is whether a defendant would be placed in double jeopardy because he could be tried in a state court for non-federal conduct, while serving extra time on the federal offense for the same conduct.
In
United States v. Mun,
AFFIRMED.
Notes
. § 1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)
(a) Chapters Two (Offense Conduct) and Three (Adjustments). Unless otherwise specified, (i) the base offense level ... shall be determined on the basis of the following:
(2) solely with respect to offenses of a character for which § 3D 1.2(d) would require grouping of multiple counts, all such acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviсtion;
(3) all harm that resulted from the acts or omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts or omissions....
. The Seventh Circuit observed, "obviously [§ 1B1.3] invites the proseсutor to indict for less serious offenses which are easy to prove and then expand them in the probation office.”
United States v. Ebbole,
. The double jeopardy prohibition does not prevent dual prosecution by separate sovereigns.
Bartkus v. Illinois,