The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-11305
Non-Argument Calendar
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D.C. Docket No. 2:11-cr-00002-WCO-SSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES TOMLIN, a.k.a. Rick Tomlin,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 12, 2012)
Before CARNES, BARKETT, and PRYOR, Circuit Judges.
PER CURIAM:
Charles Tomlin appeals his conviction for making a false statement in a
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matter within the jurisdiction of a department or agency of the United States in
violation of 18 U.S.C. § 1001(a)(2). He also challenges his 20-month sentence of
imprisonment and an award of $43,331.69 in restitution. He contends that the
district court should have granted his motion for a judgment of acquittal because
the evidence was insufficient to sustain his conviction. He also contends that the
district court incorrectly included the salaries of the EPA agents who undertook an
investigation as a result of his false statement when calculating the loss amount for
sentencing purposes as well as the restitution amount.
I.
On September 1, 2010, Charles Tomlin began renting property in
Gainesville, Georgia from James Cape. Tomlin used this property to run “Street
Dreams,” an automotive repair shop. According to Cape, Tomlin never paid rent
and complained that the EPA “was after the property,” and that “there was a lot of
cleanup that needed to be done to [the property].”
On October 28, 2010, Tomlin called Amy Vaughn, an Environmental
Specialist with the Georgia Environmental Protection Division, to ask for soil
testing on the property to check for solid waste issues. When Vaughn visited
Street Dreams on November 2, 2010, Tomlin told her that three people from the
EPA—Chris Walker, Robert Dean, and Frank Baker—had come to the property
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and told him that they were going to fine him over $80,000. Vaughn then
contacted the EPA to pass on the information she received from Tomlin. She also
found that there was a person named Frank Baker working for the EPA and
contacted him, but Baker did not recognized Tomlin’s name, address, or case.
Baker, in turn, passed the information he received from Vaughn on to his
supervisors and to the EPA Office of the Inspector General.
The EPA then assigned Special Agent Nicholas Evans to investigate
Tomlin’s claims. Evans was concerned that either someone was pretending to be
an EPA employee or that an actual EPA employee was acting corruptly. On
November 9, 2010, Evans and another agent went to Street Dreams to talk with
Tomlin. Tomlin told them that about four weeks earlier an open well behind
Street Dreams had overflowed, causing people from several different agencies to
visit the property. Tomlin said that two of these people—whom he identified as
“Robert” and “Tracy”—claimed to be agents with the EPA. Tomlin told Evans
that Robert had told him that he was in violation of environmental regulations, that
the fines could total $2 million, that Tomlin should “plan on an open check
policy,” and that Tomlin needed to give Robert his bank account number.
Evans’ investigation of the alleged EPA employee continued until
November 18, 2010. During that time, Tomlin told Evans that Robert visited
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Street Dreams on at least two more occasions, took water and soil samples, and
offered to settle the matter for various amounts of money. Tomlin also told Evans
that Robert called him as often as twice a day. Based on these statements, Evans
had a recording device installed on Tomlin’s business phone to record calls from
Robert, as well as a “trap and trace” to record the telephone numbers of incoming
calls. Evans also brought in agents from Washington, D.C., Pennsylvania, North
Carolina, and Tennessee to participate in an undercover operation to find Robert.1
Despite those efforts, the agents never saw a person matching the description of
Robert and also were unable to identify any calls to Tomlin from Robert.
As a result, on November 18, 2010, the focus of the investigation shifted to
Tomlin. Evans questioned Tomlin on December 6, 2010, but Tomlin continued to
assert that there was an EPA employee named Robert investigating him. Tomlin
was arrested on December 20, 2010 and pleaded not guilty to making a false
statement in a matter within the jurisdiction of an agency of the United States in
violation of 18 U.S.C. § 1001(a)(2). At trial, Tomlin moved for a judgment of
acquittal under Rule 29 at the close of the government’s case. That motion was
denied, and Tomlin did not renew his Rule 29 motion at the close of all of the
1
This was done in part because if Robert was a corrupt agent or employee from the
Atlanta EPA office, he probably would not recognize a special agent from another jurisdiction.
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evidence. The jury returned a verdict of guilty, and the district court entered
judgment on the verdict.
The presentence investigation report assigned Tomlin a base offense level
of six. The PSI also concluded that the EPA had suffered a total loss of
$43,331.49, which consisted of $39,414.40 for the salaries of the agents who had
investigated the alleged EPA agent harassing Tomlin and $3,917.09 for operating
expenses incurred during the investigation such as gasoline, airfare, and hotels.
Because Tomlin’s conduct resulted in a loss between $30,000 and $70,000, he
received a 6-level enhancement, for a total offense level of twelve. He had a
criminal history category of III, resulting in a guidelines range of 15 to 21 months
imprisonment. The district court imposed a sentence of 20 months imprisonment,
a $5,000 fine, $43,331.69 in restitution,2 and three years of supervised release.
This is Tomlin’s appeal.
II.
Tomlin first contends that the district court erred by denying his Rule 29
motion for a judgment of acquittal. Tomlin did not properly preserve his
challenge to the sufficiency of the evidence by renewing his Rule 29 motion at the
2
The district court’s restitution calculation is 20 cents more than the PSI
recommendation. Neither party has argued that this was an error so we need not address that
issue.
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close of all of the evidence. See United States v. Edwards, 526 F.3d 747, 756
(11th Cir. 2008). We therefore review only for a manifest miscarriage of justice,
which requires evidence on a key element of the offense to be so tenuous that a
conviction would be shocking. Id.
A conviction under 18 U.S.C. § 1001(a)(2) requires proof of five elements:
(1) a statement, (2) falsity, (3) materiality, (4) specific intent, and (5) agency
jurisdiction. United States v. Lawson, 809 F.2d 1514, 1517 (11th Cir. 1987).
Tomlin presumably challenges the government’s evidence on the specific intent
element, because he argues that the government “presented little evidence showing
why Mr. Tomlin would deliberately commit fraud upon the government.”
Appellant’s Brief at 13. The specific intent required by the statute is the “intent to
deceive by making a false or fraudulent statement.” United States v. Dothard, 666
F.2d 498, 503 (11th Cir. 1982). The government presented evidence on this
element, including evidence that Tomlin made false statements directly to
government officials and failed to renounce those false statements even after
learning that the EPA was conducting an investigation into his allegations. The
government also presented evidence from which the jury could infer that Tomlin
used his false statements about environmental contamination and the purported
EPA investigation to avoid paying rent on the Street Dreams property. Because
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that evidence is not so tenuous that a conviction would be shocking, the district
court did not err in denying Tomlin’s Rule 29 motion for a judgment of acquittal.
III.
Tomlin also contends that the district court erred in its sentencing guidelines
calculation by including the salaries of EPA investigators in the amount of loss.
We review for clear error the district court’s determination of the amount of loss,
and we review de novo the district court’s interpretation of the sentencing
guidelines. See United States v. Barrington, 648 F.3d 1178, 1197 (11th Cir.
2011).
Section 2B1.1(b)(1)(D) of the sentencing guidelines imposes a six-level
increase to a base offense level if the amount of loss is more than $30,000 but less
than $70,000. The application notes to § 2B1.1 define “loss” as the greater of
actual loss or intended loss, and “actual loss” is defined as “the reasonably
foreseeable pecuniary harm that resulted from the offense.” U.S.S.G. § 2B1.1 cmt.
n.3(A)(i).3 Pecuniary harm, in turn, is defined as “harm that is monetary or that
otherwise is readily measurable in money,” and does not include “emotional
3
“When it comes to the interpretation of the guidelines, Commentary and Application
Notes of the Sentencing Guidelines are binding on the courts unless they contradict the plain
meaning of the text of the Guidelines.” United States v. Wilks, 464 F.3d 1240, 1245 (11th Cir.
2006) (quotation marks omitted).
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distress, harm to reputation, or other non-economic harm.” Id. § 2B1.1 cmt.
n.3(a)(iii). The application notes also provide that the “[c]ost to the government of
. . . the prosecution and criminal investigation of an offense” is excluded from
loss. Id. § 2B1.1 cmt. n.3(D)(ii).
The government notes that there were two separate investigations in this
case: one investigation to locate the person who was trying to get money from
Tomlin by claiming to be an EPA agent and a second investigation to establish
that Tomlin had made false representations to EPA special agents about the
alleged EPA employee. The costs associated with the second investigation were
not included in the loss amount, consistent with the “Exclusions from loss”
application note to U.S.S.G. § 2B1.1. Id. § 2B1.1 cmt. n.3(D)(ii).
Tomlin, however, argues that the district court erred in its calculation of the
loss amount because it included the salaries of EPA agents who participated in the
first investigation. Tomlin argues that those salaries, which totaled $39,414.40,
should not have been included because the government would have had to pay the
agents whether or not they were investigating him. While Tomlin might be correct
that the EPA would have had to pay its agents’ salaries whether or not they were
investigating him, that does not necessarily mean that the district court erred in its
loss calculation. Nine special agents from the EPA spent 320 hours looking for
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Robert, the allegedly corrupt EPA employee, as a direct result of Tomlin’s false
statements. The time spent searching for Robert could have been spent
investigating other matters, and the district court calculated the value of this lost
time based on the salaries of those EPA agents.4
The application notes to § 2B1.1 recognize the difficulty of accurately
calculating the loss in cases involving fraud or deceit, noting that “[t]he court need
only make a reasonable estimate of the loss,” and that “the court’s loss
determination is entitled to appropriate deference.” U.S.S.G. § 2B1.1 cmt. n.3(C);
Barrington, 648 F.3d at 1197. While the application notes do provide that loss
does not include the cost of investigating an offense, the salaries of the EPA
agents in this case do not represent the “cost of investigating” Tomlin’s offense,
because that investigation did not begin until November 18. Instead, they
represent the time the EPA spent investigating Robert—a non-existent person—as
a direct result of Tomlin’s false statement. The district court therefore did not err
4
Tomlin concedes in his brief that “the government arguably lost some time that might
have been spent on another investigation” but argues that the lost time still should not have been
included in the loss amount because there is no evidence that other investigations would have
been a better use of time. Appellant’s Brief at 10–11. That argument misses the point. Whether
or not other investigations would have been more fruitful does not change the fact that the
government lost the opportunity to pursue those investigations because it was instead searching
for Robert as a result of Tomlin’s false statements.
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by including the cost of that time in calculating the loss to the government.5
IV.
Tomlin’s final contention is that the salaries of the EPA agents who
participated in the first investigation should not have been included in the
restitution amount because restitution is intended to “make the victim whole,” and
the agents’ salaries would have been paid regardless of Tomlin’s actions.
Appellant’s Brief at 6. We review de novo the legality of an order of restitution
and review for clear error the factual findings underlying a restitution order.
United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008).
When sentencing a defendant for a crime with an identifiable victim who
has suffered a pecuniary loss, “the court shall order . . . that the defendant make
restitution to the victim of the offense.” 18 U.S.C. § 3663A(a)(1), (c)(1)(B). A
victim is a person “directly and proximately harmed as a result of the commission
of an offense,” 18 U.S.C. § 3663A(a)(2), and the government can qualify as a
victim of a crime for restitution purposes. United States v. Mateos, 623 F.3d
1350, 1370 (11th Cir. 2010). The cost of investigating a defendant, however,
5
The government also argues that even if the district court erred by including the agents’
salaries in the amount of loss, the error would be harmless. “Where a district judge clearly states
that he would impose the same sentence, even if he erred in calculating the guidelines, then any
error in the calculation is harmless.” United States v. Barner, 572 F.3d 1239, 1248 (11th Cir.
2009). Because we conclude that the district court did not err in its guidelines calculation, we
need not reach that issue.
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should not be included in a restitution order. See United States v. Khawaja, 118
F.3d 1454, 1460 (11th Cir. 1997).
As we have already discussed, the government suffered a pecuniary loss
when it expended 320 hours of investigator time searching for an allegedly corrupt
EPA employee as a direct result of Tomlin’s false statements. The salaries of
those agents do not represent “the cost of investigating the defendant” because the
agents were not investigating Tomlin at that time—they were instead investigating
Robert. Accordingly, the district court included the salaries of those EPA agents
in the restitution amount to account for that pecuniary loss. It did not err by doing
so.
AFFIRMED.
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