Petition for Writ of Certiorari — Kenneth Richard Devore, Petitioner v. United States

CASE No. ___________

IN THE SUPREME COURT

FOR THE UNITED STATES OF AMERICA

UNITED STATES OF AMERICA

Respondent,

v.

KENNETH RICHARD DEVORE

Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

FROM THE OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Douglas L. Payne

LAW OFFICE OF DOUGLAS L. PAYNE

401 West Irish Street

Greeneville, Tennessee 37743

(423) 639-2220

BPR No. 013380

Counsel for Petitioner

QUESTIONS PRESENTED

I.

Does sufficient evidence exist to support Mr. Devore’s convictions

for mail fraud, theft of public money, and wire fraud.

II.

Did the trial court err in enhancing Mr. Devore’s sentence based upon

the guideline enhancements for sophisticated means and abuse of public

trust.

LIST OF PARTIES

The parties are listed in the caption.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . ii

TABLE OF CITED AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISION INVOLVED. . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX A - OPINION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

APPENDIX B - JUDGMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

ii

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14

15

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TABLE OF CASES, STATUTES, AND AUTHORITIES

United States Court of Appeals Cases

Page

Kann v. United States, 323 U.S. 88 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Neder v. United States, 527 U.S. 1 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Parr v. United States, 363 U.S. 370 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Schmuck v. United States, 489 U.S. 705, 710 (1989). . . . . . . . . . . . . . . . . . . 6,8

United States v. Adepoju, 756 F.3d 250, 259 (4th Cir. 2014) . . . . . . . . . . . . 11

United States v. Gold Unlimited, Inc., 177 F.3d 472, 479 (6th Cir. 1999). . . 6

United States v. Mahmud, 541 F.App’x 630,636 (6th Cir. 2013) . . . . . . . . . . 11

United States v. Maze, 414 U.S. 395, 405 (1974) . . . . . . . . . . . . . . . . . . . . . 7

United States v. Norwood, 744 F.3d 476, 480 (8th Cir. 2014) . . . . . . . . . . . . 11

Statutes

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

18 U.S.C. § 641. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

18 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States Constitution:

United States Constitution, Amendment V. . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Rules

Supreme Court Rule 13. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Sentencing Guidelines

U.S.S.G. § 2B1.1(b)(10)c. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

U.S.S.G. § 3B1.3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Law Review Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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OPINIONS BELOW

1.

Opinion, United States Court of Appeals for the Sixth Circuit, United

States of America v. Kenneth Richard Devore, C.A. No. 18-6188, December 20, 2019

(unpublished slip opinion).

2.

Judgment in a Criminal Case, United States Court for the Eastern

District of Tennessee at Greeneville, United States of America v. Kenneth Richard

Devore, District Court No. 2:17-CR-013, November 7, 2018.

1

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Sixth Circuit entered its opinion in

this case on December 20, 2019. This Court’s jurisdiction is invoked under Title 28,

United States Code § 1254(1). Rule 13 of the Supreme Court allows for ninety days

within which to file a Petition for a Writ of Certiorari after entry of Judgment by the

appellate court or the denial of the Petition for Rehearing, whichever is later. This

Petition is, therefore, timely filed within the period allotted by the rules.

Petitioner, Kenneth Richard Devore, respectfully prays that a Writ of Certiorari

issue to review the Opinion of the United States Court of Appeals for the Sixth

Circuit. In that Opinion, the Sixth Circuit affirmed the District Court.

2

CONSTITUTIONAL PROVISION INVOLVED

5th Amendment to the U.S. Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use, without just compensation.

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STATEMENT OF THE CASE

The federal grand jury returned an indictment against Mr. Devore for wire

fraud, theft of public money, mail fraud, financial conflict of interest, and false

statement.

Mr. Devore proceeded to trial, and the jury returned a verdict against him

on all counts.

The District Court sentenced Mr. Devore to 96 months of imprisonment.

The Judgment was entered on October 7, 2018.

On November 7, 2018, Mr. Devore filed his Notice of Appeal

On December 20, 2019, the Court of Appeals for the Sixth Circuit affirmed the

District Court’s Judgment.

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ARGUMENT

The charges relate to the following two distinct and unrelated factual scenarios:

first, while employed by the Department of Veterans Affairs (VA) as a field

examiner, Mr. Devore prepared a will for a disabled veteran naming himself as the

executor and sole beneficiary and mailed the will to the financial guardian; and

second, Mr. Devore collected total disability benefits from the (VA) while working

at the VA and operating an insurance agency.

1.

Mail Fraud: The dispositive question is whether the mailing of the will

by Mr. Devore furthered a scheme to defraud another of his property.

The elements of mail fraud are:

1. That the Defendant knowingly participated in, devised or intended to

devise a scheme to defraud in order to obtain money or property, [as

set forth in the indictment];

2. That the scheme included a material misrepresentation or

concealment of a material fact;

3. That the Defendant had the intent to defraud; and

4. That the Defendant used the mail, or any private or commercial

interstate carrier, or caused another to use the mail, or any private

or commercial interstate carrier, in furtherance of the scheme.

A scheme to defraud includes any plan or course of action by which someone

intends to deprive another of money or property by means of false or fraudulent

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pretenses, representations, or promises. (quoting United States v. Gold Unlimited,

Inc., 177 F.3d 472, 479 (6th Cir. 1999).

As for the Defendant’s knowledge and intent in causing the mailing, the

government must prove only that the mailing could be reasonably foreseen in the

ordinary course of business and that the mailing somehow furthered the scheme.

Also, as to the required connection between the scheme to defraud or obtain property

and the use of the mails, the Supreme Court has stated: The federal mail fraud statute

does not purport to reach all frauds, but only those limited instances in which the use

of the mails is a part of the execution of the fraud . . . . Schmuck v. United States, 489

U.S. 705, 710 (1989). This Court explained: To be a part of the execution of the

fraud . . . the use of the mails need not to be an essential element of the scheme. It is

sufficient for the mailing to be incident to an essential part of the scheme, or a step

in [the] plot.

Schmuck, 489 U.S. at 710 (internal citations and quotation marks

omitted). This Court then stated: The relevant question at all times is whether the

mailing is part of the execution of the scheme as conceived by the perpetrator at the

time, regardless of whether the mailing later, through hindsight, may prove to have

been counterproductive and return to haunt the perpetrator of the fraud.

In Kann v. United States, 323 U.S. 88 (1944), corporate officers and directors

were accused of having set up a dummy corporation through which to divert profits

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of their own corporation to their own use. As a part of the scheme, the Defendants

were accused of having fraudulently obtained checks payable to them which were

cashed or deposited at a bank and then mailed for collection to the drawee bank. This

Court held that the fraud was completed at the point at which Defendants cashed the

checks as the scheme in each case had reached fruition. The persons intended to

receive the money had received it irrevocably.

In Parr v. United States, 363 U.S. 370(1960), the Defendants were charged,

inter alia, with having obtained gasoline and other products and services fraudulently

by the unauthorized use of a gasoline credit card issued to the school district which

employed them. The oil company which furnished products and services to the

Defendants would then mail invoices to the school district for payment, and the

school district’s payment via check was by the mail. Relying on Kann, this Court

again found that there was an insufficient connection between the mailing and the

execution of the Defendants’ scheme because the scheme reached fruition when

Defendants received the goods and services.

Similarly, in United States v. Maze, 414 U.S. 395, 405 (1974), the Defendant

used a credit card to obtain food and lodging at motels prior to any mailings; and, this

Court held there was not a sufficient connection between the scheme and the

mailings.

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In the present case, the mailing of the Last Will & Testament was incidental

and was not “in furtherance of” any fraud or fraudulent scheme.

The Government’s position has been that Mr. Devore’s scheme was not

complete at the time of mailing because Regions Bank, the fiduciary, would have a

role in the administration of the estate upon N’s death. There was no action required

by the bank at N’s death. Absent Mr. Devore predeceasing N, there were no

directives in the will requiring action by the bank. The action necessary was the

appointment of an executor to carry out the will.

Under 18 U.S.C. § 1341, the mailing has to be for the purpose of the fraud and

in furtherance of it. The mailing has to be material to any scheme. Neder v. United

States, 527 U.S. 1 (1999). In the present case, no action was needed or required by

Regions Bank; and no return mailing from the bank was required. Under Schmuck

and the cases that affirmed convictions after it, the mailings, both by the Defendants

and the return mailings or actions by the mail recipients, were necessary to on-going

schemes. That simply is not present in Mr. Devore’s case because there was no

requirement for Regions Bank to take action. The facts of the case do not establish

materiality, in furtherance or purpose, as those elements are required under the statute

and the controlling case authority.

The mailing in this case was incidental,

immaterial, not in furtherance, and inconsequential as to any alleged fraudulent

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scheme.

2. Wire Fraud and Theft of Public Money Counts: The facts concerning

these crimes arise from the government’s contention that Mr. Devore misrepresented

the nature and extent of his disabilities in order to receive increased VA benefits.

There is insufficient evidence warranting a conviction for Theft of Public

Money because Mr. Devore was rated “disabled” multiple times, and the Government

failed to prove otherwise when no competent medical evidence was presented to the

contrary.

To support a conviction of theft of government property in violation of 18

U.S.C. § 641, the government must establish that the Defendant (1) knowingly (2)

stole or converted to the use of another (3) something of value of the United States.

Theft of government property under 18 U.S.C. § 641 is a specific intent crime. . . . A

person who harbors a good faith but mistaken belief that property belongs to him

lacks the necessary mens rea for theft under 18 U.S.C. § 641.

The Government alleged that Mr. Devore’s applications for increased VA

benefits were premised on false statements to the VA about Defendant’s medical and

mental health conditions and their effect on his ability to work. Multiple medical

professionals, practitioners both inside and outside of the VA told the VA Mr. Devore

was disabled. Without any medical proof to the contrary, the Government attempted

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to prove its case, through contradictory statements made by Mr. Devore, about his

conditions and his employment. These inconsistent statements, however, do not

prove that Mr. Devore was not disabled.

3.

The Trial Court erred in the application of the Sentencing

Guidelines resulting in a procedurally deficient sentence.

A.

Mr. Devore did not use a “Sophisticated Means” of committing

any crime for which he was found guilty. U.S.S.G. § 2B1.1(b)(10).

The District Court found that Mr. Devore had specialized knowledge about the

VA rating system, misrepresented his condition to doctors to obtain increased ratings

and did so while working for the VA. The evidence showed that the knowledge

available to Mr. Devore was available to veterans as well as the public in general.

There is no per se prohibition for a disabled veteran to work. The inherent problem

with the application of this guideline provision is that any crime, unless it is the most

simple crime, is subject to this application. Any set of facts can be broken into

innumerable discreet acts to appear “sophisticated.” See 61 Wayne L. Rev. 61 (20152016) “Unsophisticated Sentencing” Miriam Baer.1

1

The enhancement was intended for only the most intricate frauds but has

gradually turned into an enhancement that applies to “all but the most

simplistic.” p. 89. Between 2005-2013 the number of Defendants who

received the enhancement has tripled. p. 68 Table 1.

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The Eighth Circuit in United States v. Norwood, 774 F.3d 476, 480 (8th Cir.

2014) has found sophisticated need not be highly sophisticated if the whole offense

conduct is more intricate than the garden variety offense. The Sixth Circuit looks to

the scheme as a whole instead of the component parts United States v. Mahmud, 541,

F. App’x 630, 636 (6th Cir. 2013). The Fourth Circuit found sophisticated means

requires more than just thoughtful or potentially successful planning. United States

v. Adepoju, 756 F.3d 250, 259 (4th Cir. 2014). There is a need for clarity about what

it truly means to be sophisticated for the purposes of the guideline provision.

B.

The Court misapplied the “Abuse of Public Trust” enhancement

as Appellant did not hold a position of public trust. U.S.S.G. § 3B1.3

The Defendant received a two (2) level adjustment because probation found

that he abused a position of public or private trust, or used a special skill, in a manner

that significantly facilitated the commission or concealment of the offense. The

Defendant objected to the adjustment. This adjustment would not apply to the

Defendant because he did not hold a position of public trust characterized by

professional or managerial discretion. The examples in the guidelines are nonexhaustive: attorney/trust fund embezzlement, bank executive/fraudulent loan

scheme, and physician/abuse of a patient. His job did not require substantial

education, training or licensing to satisfy the special skill requirement for the

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adjustment.

In determining whether or not the “abuse of trust” enhancement is appropriate,

precedent directs Courts to look at "the level of discretion accorded an employee" as

the decisive factor in determining whether his position was one that can be

characterized as a trust position. The specific job must be characterized by substantial

discretionary judgment that is ordinarily given considerable deference.

A position of trust is marked by substantial managerial discretion and

fiduciary-like responsibilities -- a position with supervisory authority and one which

engenders considerable deference.

In this case, Mr. Devore was a fact gatherer for the VA Fiduciary Hub. He had

no access to the veteran’s money or property. Just as a bank teller has access to the

account records, Mr. Devore had access to the banking records of N.; but, unlike the

bank teller, Mr. Devore could not access those funds. His training consisted of three

weeks of mentoring. His conduct does not fit within the legal meaning for the

enhancement.

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CONCLUSION

For the reasons stated above, this Petition should be granted.

Respectfully submitted,

KENNETH RICHARD DEVORE

By:

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s/s Douglas L. Payne

DOUGLAS L. PAYNE

Attorney for Appellant, BPR # 013380

401 West Irish Street

Greeneville, Tennessee 37743

(423) 639-2220

APPENDIX A - OPINION

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APPENDIX B - JUDGMENT

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of this Petition for

a Writ of Certiorari has been served upon the Solicitor General of the United States,

U.S. Department of Justice, 950 Pennsylvania Avenue, N.W., Washington, DC

20530-0001 and Brian Samuelson, Assistant United States Attorney, 800 Market

Street, Suite 211, Knoxville, TN 37902 placing a true and exact copy of said Petition

in the United States Mail, with sufficient postage thereon to carry the same to its

destination.

This 5th day of March, 2020.

s/s Douglas L. Payne

DOUGLAS L. PAYNE

Attorney for Defendant-Appellant

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