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United States Court of Appeals for the Tenth Circuit
April 12, 2011, Filed
[*1202] KELLY, Circuit Judge.
Defendant-Appellant Paul Smith appeals his convictions for embezzlement from an employee benefit plan under 18 U.S.C. § 664 and making false statements to a government agent under 18 U.S.C. § 1001(a)(2). He contends that the evidence was insufficient to sustain the § 664 convictions and that venue was improper for the false statements convictions. We agree and reverse both convictions.
From 1989 to 2004, Defendant-Appellant Paul Smith served as the executive director of Marie Detty, a private non-profit youth and family service center in Lawton, Oklahoma. Aplt. App. 49, 51-52. Marie Detty received funding from multiple sources, including the Oklahoma Department of Mental Health, United Way, [**2] private donations, and federal grants. Id. at 50. As executive director, Mr. Smith was in charge of compiling and managing the budget. Id. at 54. The Board of Directors (the "Board") approved an annual budget. Id. at 110. However, Marie Detty was not always able to pay the budgeted amounts, given the sometimes-uncertain nature of donations and grants as well as rising costs, particularly insurance costs. Id. at 80, 138-40.
Marie Detty had an employee profit-sharing plan (the "Plan"). Id. at 94. The Plan was entirely discretionary; that is, the Board decided on an annual basis whether to contribute to the plan. Id. at 97-98. Although the Board generally contributed to the Plan, on at least one occasion it decided not to fund the Plan. Id. at 227. For fiscal years 2002 and 2003, the Board approved 5% (roughly $171,000) and 3% (roughly $94,000) contributions as part of the operating budget. Id. at 68, 117-18, 136.
During both 2002 and 2003, Marie Detty's fiscal director, Donald Hall, made out checks to fund the Plan. Id. at 119, 137. However, Mr. Smith directed Mr. Hall to hold the checks. Id. at 119. Mr. Hall did so. Mr. Hall testified that he and Mr. Smith did not make the contributions [**3] because Marie Detty did not have adequate funds to cover the checks at that time. Id.; see id. at 82. Although there were some federal funds available from the Head Start program, those funds could not be used because the Plan benefitted all employees-not just employees funded by Head Start grants. Id. at 142. Mr. Hall testified that he and Mr. Smith intended to make the 2002 and 2003 contributions when they received $350,000 that the Oklahoma Department of Mental Health was, in their view, wrongfully withholding. Id. at 78, 142. The $350,000 was part of Marie Detty's operating budget for 2002 and 2003, id. at 78, but although Marie Detty hired a lawyer to obtain the withheld funds, by 2004 the money had not been received. Id. at 7879, 142-43. As of 2004, the contributions approved by the board for fiscal years 2002 and 2003 had not been made. According to Mr. Hall, the contributions were never made because Marie Detty never received the full amount of money owed to it by Oklahoma. Id. at 143.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
641 F.3d 1200 *; 2011 U.S. App. LEXIS 7454 **; 50 Employee Benefits Cas. (BNA) 2712
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PAUL L. SMITH, Defendant - Appellant.
Prior History: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA. (D.C. No. 5:08-CR-00272-C-1).
United States v. Smith, 2010 U.S. Dist. LEXIS 152547 (W.D. Okla., Mar. 3, 2010)
contributions, counts, false statement, funds, venue, embezzlement, concealment, budget, abstraction, conversion, right to collect, district court, interview, contractual right, contractually, sentence, argues, indictment, converted, defeated, pension, continuing offense, fiscal year, convictions, amounts, theft
Criminal Law & Procedure, Trials, Motions for Acquittal, Standards of Review, De Novo Review, Sufficiency of Evidence, Theft & Related Offenses, Embezzlement, Elements, General Overview, Burdens of Proof, Prosecution, Jurisdiction & Venue, Venue, Fraud Against the Government, False Statements