UNITED STATES of America, Plaintiff-Appellee, v. William Patrick CLARK, Defendant-Appellant.
No. 14-1251.
United States Court of Appeals, Seventh Circuit.
Decided May 28, 2015.
787 F.3d 451
Argued Feb. 11, 2015.
McClone argues that there is no rule flatly forbidding the use of deadly force even if a weapon is not directly pointed at an officer. But the cases on which he relies are different from this one: they involve suspects who threatened the officer in some way. See, e.g., Henning v. O‘Leary, 477 F.3d 492, 495-96 (7th Cir. 2007) (concluding deadly force was reasonable where suspect resisted arrest); De-Luna, 447 F.3d at 1011-12. As our account of Jerome‘s version of the facts demonstrates, there is no evidence that Jerome threatened McClone and so that theory cannot help McClone.
Even if we were to conclude that no other decisions are sufficiently analogous to be pertinent, we would still be unable to uphold a finding of qualified immunity on this record. McClone‘s shooting of Jerome while Jerome was passively sitting in a chair with the gun across his lap would meet the alternative standard of plainly excessive conduct. Recall that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” al-Kidd, 131 S.Ct. at 2085 (quotation marks and citation omitted). Kicking down a door and immediately shooting a suicidal person who is neither resisting arrest nor threatening anyone save himself is an excessive use of force. And each of the four shots inflicted injury on Jerome. McClone did not look through the other windows into the garage to see what Jerome was doing, nor did he try to talk to him. Instead, within three minutes of arriving at the scene, McClone opened fire. Either viewed as so plainly excessive that no analogous case is needed, or viewed in light of existing authority, this was an excessive use of force.
IV
The existence of a factual dispute about the circumstances surrounding McClone‘s decision to fire on Jerome precludes a ruling on qualified immunity at this point. The district court correctly recognized this, and thus its judgment is AFFIRMED.
William H. Burgess, Jonathan Jones, Attorneys, Kirkland & Ellis LLP, Washington, DC, for Defendant-Appellant.
Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge.
William Patrick Clark‘s trucking business was hired to perform hauling services on a state-and federally funded highway project in Missouri. Because federal funds were in play, Clark‘s contract with the project‘s general contractor required that he pay his truck drivers the federal prevailing wage pursuant to the Davis-Bacon Act (which, at the time, was $35.45/hour). Clark chose not to do so, however, individually contracting with his drivers for roughly $15/hour instead. Throughout the project, as required by his contract, Clark submitted weekly payroll certifications in which he falsely attested to paying his workers $35.45/hour. After his work on the project concluded, he submitted an affidavit to the Missouri Department of Transportation (“MODOT“), certifying compliance with Missouri state law and its state wage order. On account of these attestations, the government charged Clark with ten counts of making false statements in violation of
On appeal, Clark argues that the government presented insufficient evidence for the jury to conclude that his false statements were material to the federal government an element of
I. Background
William Patrick Clark, the owner and president of Clark Trucking and Excavation LLC (“Clark Trucking“), worked in his family‘s business from the time he was fourteen years old until the company dissolved as a consequence of his criminal convictions in this case. Clark was charged and convicted by a jury of making false statements (in violation of
Clark‘s subcontract, titled “Project Hauling Agreement,” specified that Clark‘s services were “subject to prevailing wages.” It required Clark to “comply with all applicable laws, ordinances, statutes, rules and regulations, Federal, State, County, Municipal, pertaining to the Work, but not limited to, those regulations relating to wages.” And it mandated that Clark “submit copies of certified payrolls for on-site hauling by law, rule or regulation.” The Agreement included as an addendum federal form FHWA-1273, titled “Required Contract Provisions-Federal-Aid Construction Contracts.” The addendum specified that “All mechanics and laborers employed or working upon the site of the work” had to be paid wages according to “the wage determination of the Secretary of Labor, ... which is attached hereto, and made a part thereof, regardless of any contractual relationship between the contractor or its subcontractors and such laborers and mechanics.” But it was undisputed at trial that no numerical hourly wage was attached to Clark‘s subcontract or specified therein.
About a year after Clark entered into the subcontract, however, the Missouri Highway and Transportation Commission issued a “wage order“—identified at trial as “Annual Wage Order No. 50“—which became incorporated into the contract. The actual wage order was not part of the record at trial, but (according to testimony) it mandated that employees be paid $35.45/hour, Missouri‘s state prevailing wage (which, not coincidentally, was also the federal prevailing wage, as determined by the U.S. Secretary of Labor). Trial testimony provided by April Brown, the Missouri Department of Transportation (“MODOT“) official who provided oversight of the I-64 Project for the state, established that there was some confusion during the project among subcontractors as to the prevailing wage that they were required to pay, because the wage rate was not expressly attached to their contracts. For reasons unclear from Ms. Brown‘s testimony, some contractors apparently had been led to believe that the prevailing rate was about three dollars less than $35.45 and thus paid their employees that lesser wage until the wage order was issued and provided clarification. At that
Pursuant to Clark‘s subcontract—and the Davis-Bacon Act itself—on June 29, 2007, Clark began submitting certified payrolls to Gateway for each week of hauling services performed by his drivers. These forms are Department of Labor forms U.S.G.P.O. 1997 519.861, which expressly state that falsified information would subject the subcontractor to criminal prosecution pursuant to
That any payrolls otherwise under this contract required to be submitted for the above periods are correct and complete; that the wage rates for laborers or mechanics contained therein are not less than the applicable wage rates contained in any wage determination incorporated into this contract; that the classifications set forth therein for each laborer or mechanic conform with the work he performed.
Clark, however, did not pay his drivers $35.45/hour. Instead, he individually contracted with each employee for roughly $15/hour. Testimony elicited from his drivers at trial demonstrated that his drivers knew that Clark was supposed to pay them the federal prevailing wage. It seems that they were happy to have the work, so they did not complain about being shortchanged.
Although Clark completed work on the project at the end of December, 2009, the I-64 project itself concluded in August 2010. The next month, on September 27, 2010, Clark signed a “Final Release and Waiver of Lien” for Gateway Constructors that included a statement that “All labor employed thereon or in connection [with the I-64 project] has been paid at the applicable prevailing wage rate.” A year later, on September 27, 2011, Clark was informed that MODOT required an affidavit, swearing compliance with Missouri state laws. Clark signed and submitted the affidavit, certifying that:
[A]ll provisions and requirements set out in Chapter 290, Sections 290.210 through and including 290.340, Missouri Revised Statutes, pertaining to the payment of wages to workmen employed on public works projects have been fully satisfied and there has been no exception to the full and complete compliance with said provisions and requirements with Annual Wage Order No. 50 ... issued by the Division of Labor Standards....
Two months later, Clark was arrested. A U.S. Department of Labor investigation into another company that had worked on the I-64 project led DOL to search the offices of Clark Trucking and confiscate documents.
On December 14, 2011, based on that search and seizure, a grand jury in the Southern District of Illinois indicted Clark, charging him with ten counts of making false statements in violation of
Early on, the district court granted Clark‘s motion to dismiss for improper venue, but, in July 2013, we reversed in light of our determination that venue is proper in both the Eastern District of Missouri (where the false forms were filed) and the Southern District of Illinois (where Clark created the false payroll records and signed the affidavit). United States v. Clark, 728 F.3d 622 (7th Cir. 2013).
On remand, the case was tried to a jury. The government presented evidence that Clark was required to pay his employees the “prevailing wage,” certified that he paid them $35.45/hour, but that he, in fact, did not. The government elicited testimony from two MODOT employees who spoke to their interactions with Clark. The government also put on an agent from the U.S. Department of Labor, John Borders, who testified that he discovered Clark‘s false certifications while investigating another company. Borders was the only witness from the federal government, and he did not testify about Clark‘s contract, the wage orders, or Clark‘s affidavit certifying compliance with Missouri law. Clark‘s defense focused on mens rea,1 arguing that he lacked notice of the required prevailing wage—stressing that the U.S. Secretary of Labor‘s $35.45 figure was not expressly stated in Clark‘s contract and noting that there had been confusion among the other subcontractors regarding their precise wage obligation. Numerous Clark drivers testified that they were paid in the neighborhood of $15. Yet, with one exception, each witness testified that he was satisfied with his pay and did not feel cheated by Clark. Nevertheless, the jury convicted him on all ten counts.
At sentencing, Clark disputed that his employees were “victims” entitled to restitution and, for purposes of the sentencing enhancement set forth in U.S.S.G. § 2B1.1(b)(1), that they suffered any “loss” as a result of his false statements. The government countered by arguing that (1) Clark‘s false statements to the government were part of a “scheme to defraud” his employees, that (2) an Application Note to the Guidelines stating a “special rule[]” for “case[s] involving a Davis-Bacon violation” governed the loss calculation, and that (3) “[i]f the offense had not been committed by the defendant, then each driver would have received the wages reported in the false certifications.” In the government‘s view, both the U.S. government and the employees were victimized by Clark‘s conduct, and, consequently, Clark‘s employees should be compensated for the difference between the $35.45/hour Clark should have paid them and the roughly $15/hour that he did pay them.
Three of Clark‘s former employees, however, addressed the court through a letter or in person to express support for Clark and to deny that they had been victimized. Initially, the probation office took this same position, in light of the fact that Clark‘s drivers were not deceived (they were paid the rate for which they contracted with Clark) and because the same federal funds would have been expended regardless of the hourly wage that Clark paid his drivers. As such, the initial PSR
Both versions of the PSR (including the first version, which concluded that Clark‘s employees were not victims) determined that Clark‘s statements resulted in a “loss” to his twenty-two drivers in excess of $200,000 (calculated by multiplying the number of employee hours over the course of the project by $20—the rough difference between the $35.45 required wage and the $15 wage Clark paid his employees). This resulted in a 12-level enhancement to his offense level under U.S.S.G. § 2B1.1(b)(1)(G). Clark contested these determinations, arguing that his employees were not victims because they suffered no actual loss due to his false statements. But the PSR determined—and the district court agreed—that his drivers did incur losses, in part, based on Application Note 3(F) to U.S.S.G. § 2B1.1, which states: “In a case involving a Davis-Bacon violation (i.e., a violation of
With a criminal history category of 1 and a base offense level of 6, the 12-level loss enhancement plus the 2-level number-of-victims enhancement resulted in a sentencing range of 33-41 months incarceration on each count. The district court sentenced Clark to 33 months incarceration on each count (to run concurrently), 3 years supervised release, a $1000 assessment, and $273,118.43 in total restitution to his 22 former employees.
On appeal, Clark challenges (1) his conviction on Count 10, arguing that the government failed to prove that his affidavit to MODOT was capable of influencing the federal government; (2) his convictions on Counts 1-9, contending, in effect, that his false payroll certifications did not concern a matter within the federal government‘s purview; (3) his restitution order, maintaining that his failure to pay his employees, not the after-the-fact false statements for which he was convicted, deprived his employees of income; and (4) the 12-level loss enhancement, (similarly) arguing that his false certifications neither caused nor were intended to cause his employees monetary loss.
II. Discussion
A. Materiality of the MODOT Affidavit
In terms of the jurisdiction element, “[a] false statement may fall within section 1001 even when it is not submitted to a federal agency directly and the federal agency‘s role is limited to financial support of a program it does not itself directly administer.” United States v. Petullo, 709 F.2d 1178, 1180 (7th Cir. 1983). “In such cases, the necessary link between deception of the non-federal agency and effect on the federal agency is provided by the federal agency‘s retention of the ultimate authority to see that the federal funds are properly spent.” Id. (internal citation and quotation marks omitted).
Clark concedes that his statements in the MODOT affidavit were false. He argues, though, that the government failed to introduce evidence at trial proving that his misstatements, which he submitted to a state agency and which concerned compliance with Missouri state law, were materially false. The government—again, accepting Clark‘s premise that for Clark‘s statements to be material, they had to be capable of influencing the federal Department of Labor—counters that Clark‘s statements concerning the wages he paid his employees satisfy materiality simply because the federal government had an interest in ensuring that the project‘s subcontractors paid their employees the federal prevailing wage.
Whether a statement is “material” is a fact question for the jury. United States v. Beaver, 515 F.3d 730, 740 (7th Cir. 2008). Normally, “[a] defendant who challenges the sufficiency of the evidence faces a daunting standard of review. In considering such a challenge, we view ‘the evidence in the light most favorable to the Government, defer[] to the credibility determination of the jury, and overturn[] a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt.‘” United States v. Carter, 695 F.3d 690, 698 (7th Cir. 2012) (quoting United States v. Perez, 612 F.3d 879, 885 (7th Cir. 2010)). But as the government points out, Clark did not renew his motion for judgment of acquittal at the end of his trial. Therefore, “we will only reverse his conviction if we find a ‘manifest miscarriage of justice’ under the plain er-
Turning to Clark‘s argument, we are unconvinced that statements made to a state agency (even ones concerning only state law) are incapable of influencing the federal government as a per se rule. Cf. Petullo, 709 F.2d at 1179 (affirming a false statements conviction where a contractor submitted false claims to the City of Chicago, which had received federal funds for snow removal). See also United States v. White, 270 F.3d 356 (6th Cir. 2001) (affirming a Section 1001 conviction where the defendants made false statements to the Kentucky Division of Water). Nevertheless, we agree with Clark that the government failed to prove how his statements to a state agency in this case had an ability to influence the federal government.
The government emphasizes that a false statement under section 1001 is material if it merely has the mere “possibility of influencing” a federal government agency, Turner, 551 F.3d at 659, and points out that the Sixth Circuit has described this as a “fairly low bar for the government to meet.” White, 270 F.3d at 365. The government argues that it cleared this low bar by way of Government Exhibit 52, which it presented at trial and which the jury reviewed during its deliberation. Government Exhibit 52 is Form FHWA-1273, titled “Required Contract Provisions Federal-Aid Construction Contracts,” which (as discussed earlier) was attached to Clark‘s Hauling Agreement with Gateway Constructors. Again, one of the provisions contained in this document is a requirement that Clark had to pay his employees consistent with “the wage determination of the Secretary of Labor, ... which is attached hereto, and made a part thereof, regardless of any contractual relationship ... between the contractor or its subcontractors and such laborers and mechanics.” According to the government, “common sense dictates that a false statement regarding the wages paid on [sic] contract ostensibly covered by the Davis-Bacon Act has the potential to influence the Department of Labor,” because “[i]t is the Department‘s regulatory responsibility to ensure that the Davis-Bacon Act‘s prevailing wage requirements are consistently enforced on all federally-funded construction projects. And the right to cut off payments to a contractor is a very real, potentially very costly enforcement mechanism.”
In fact, the U.S. Department of Labor had the authority—upon learning that employees of a subcontractor are being paid less than the U.S. Secretary of Labor‘s prevailing wage—to make a written request to MODOT, asking that it withhold “any accrued payments or advances as may be considered necessary” to pay the employees their owed prevailing wages. This was specified in addendum federal form FHWA-1273, titled “Required Contract Provisions-Federal-Aid Construction Contracts“: “[t]he [state highway agency] shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the ... subcontractor under this contract or ... any other Federally-assisted contract subject to the Davis-Bacon prevailing wage requirements which is held by the same prime contractor, as much of the accrued payments or advances as may be considered necessary to pay laborers or mechanics....”
Clark also insists that the government failed to prove materiality concerning Counts 1-9. But he hinges his materiality argument not on whether his certifications had the ability to influence the federal government, but on whether he was contractually required to pay Davis-Bacon wages at all. The Davis-Bacon Act provides that “every contract in excess of $2,000” that involves the federal government “shall contain a provision stating the minimum wages to be paid various classes of laborers and mechanics.”
As an initial matter, Clark cites no case law for the proposition that the federal numerical prevailing wage must be printed in a subcontractor‘s contract for Davis-Bacon to apply. And, as the government points out, Clark‘s contract did expressly state that he must pay his drivers the federal prevailing wage, as set forth by the U.S. Secretary of Labor. As it did with respect to Count 10, the government argues that Clark conflates the elements of materiality and jurisdiction. Here, though, we agree with the government. Clark does not argue that his false statements did not have a natural tendency to influence the Department of Labor (the standard for materiality), but instead—in effect—argues that the Department of Labor had no interest in Clark‘s statements about wages since (as Clark sees it) he was not contractually obligated to pay a federally-mandated wage. We find Clark‘s reasoning wholly unpersuasive.
Regardless of the Section 1001 element that Clark‘s argument purports to target, it is undisputed that in each payroll certification Clark expressly attested to paying his drivers $35.45/hour and that each form warned Clark that “a willful falsification of any of the above statements may subject the contractor or subcontractor to civil or criminal prosecution. See section 1001 of Title 18 and section 231 of Title 31 of the United States Code.” Moreover, Clark‘s contract specified that he was subject to Davis-Bacon‘s requirements “regardless of any contractual relationship ... between the contractor or its subcontractors and such laborers and mechanics.” It is clear then that the government not only had an interest in the information contained in these payroll certifications, but that a false statement on these forms had a natural tendency to influence the federal government in some way. And Clark knew that.4
C. Loss Caused by Clark‘s Misstatements
Clark argues that the district court misapplied
D. The 12-level Loss Enhancement
We review the district court‘s interpretation and application of U.S.S.G. § 2B1.1 de novo. United States v. Johnson, 612 F.3d 889, 892 (7th Cir. 2010). Loss, for purposes of the section 2B1.1 enhancement, can be based on either actual or intended losses, but the government relies exclusively on actual loss in defending the district court‘s $273,118.43 loss amount calculation. Actual loss is defined as “the reasonably foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1, App. n. 3(A).
The parties’ loss arguments mostly resemble their arguments on the topic of restitution. Clark argues that the district court improperly imposed a 12-level sentencing enhancement (which increased his guidelines range from 0-6 months to 33-41 months) based on a notion of loss that his reply brief deems “irrational.” The government‘s position is that if we “concur[] in the district court‘s determination that the drivers were victims of Clark‘s crimes, then, logically, the difference between what the drivers were paid and what Clark said they were paid would be their loss.” In the government‘s view, the district court‘s determination that Clark‘s false statements caused his employees actual loss of $273,118.43 is “[c]onsistent with basic reasoning and with Application Note 3(F)(iii) to U.S.S.G. § 2B1.1.”
Application Note 3(F)(iii) reads: “In a case involving a Davis-Bacon violation (i.e., a violation of
In this case, though—on account of the government‘s authority to halt payments to subcontractors upon learning that one‘s employees were being undercompensated—Clark‘s false payroll certifications did cause loss to his employees. The government never learned of Clark‘s underpayments because he lied throughout the project‘s duration, depriving the government of the opportunity to divert funds to his underpaid personnel and cheating Clark‘s employees out of their federally-mandated wages in the process. Therefore, Application Note 3(F)(iii) concerning loss calculation is both relevant and instructive. Although the Note discusses “benefits,” not “loss,” we read those terms to be the converse of each other in this instance; if Clark benefited in an amount equal to the difference between the prevailing wages he should have paid to his employees and those that he actually did pay them, then, of course, his employees suffered losses to that same tune. Accordingly, we conclude that Clark‘s false statements did, in fact, cause loss to his employees and that the district court properly applied Application Note 3(F)(iii) in calculating that loss amount.
III. Conclusion
For the foregoing reasons, we AFFIRM in part and REVERSE in part the judgment of the district court and remand for re-sentencing consistent with this opinion.