United States v. Gregory John Katopodis , 428 F. App'x 902 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11324 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 2, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:08-cr-00418-KOB-TMP-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY JOHN KATOPODIS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(June 2, 2011)
Before EDMONDSON, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory John Katopodis appeals his convictions and 46-month total
sentence for mail and wire fraud, 18 U.S.C. §§ 1341, 1343, 1346. No reversible
error has been shown; we affirm.
Katopodis helped found a charity called Computer Help for Kids (“CHK”).
The charity’s purpose was to collect and repair old computers and then to donate
those computers to underprivileged children in Jefferson County, Alabama. CHK
received funding from the Jefferson County Commission, the City of Birmingham,
and other private businesses and persons. Katopodis served as CHK’s leader and
was the only person with access to CHK’s financial records. The indictment
alleged that Katopodis used CHK funds for his personal use.
On appeal, Katopodis argues that, in the light of the decision in Skilling v.
United States, 130 S.Ct. 2896 (2010), he could not be convicted of honest services
mail and wire fraud because the evidence showed that he did not commit honest
services fraud under the narrowed definition of the offense outlined in Skilling.
And because the jury returned a general verdict that did not indicate whether they
found him guilty of traditional fraud or honest services fraud, Katopodis maintains
that his convictions should be invalidated.
Because Katopodis did not object to the jury charge on honest services
fraud in the district court, we review his claim for plain error. Puckett v. United
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States, 129 S.Ct. 1423, 1428-33 (2009). Under this standard, Katopodis must
show that there is (1) error, (2) that is clear or obvious, and (3) that affects his
substantial rights. Id. at 1429.
In Skilling, the United States Supreme Court explained that a defendant can
be convicted of honest services fraud under 18 U.S.C. § 1346 only if he has
accepted bribes or kickbacks. 130 S.Ct. at 2931. In the light of this narrowed
definition of honest services fraud, the district court, in the present case,
erroneously instructed the jury because the court did not tell the jury that
Katopodis had to accept bribes or kickbacks to be convicted of honest services
fraud; so the first part of plain error is met.
And the second part of plain error -- that the error be plain under current law
-- also is met. See United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.
2000) (for an error to be plain, it must be “clear under current law”). The
narrowed definition of honest services fraud was not current law when Katopodis
was tried, but “it is enough that an error be ‘plain’ at the time of appellate
consideration.” Johnson v. United States, 117 S.Ct. 1544, 1549 (1997).
About the third part of plain error, a defendant’s substantial rights are
affected if there is a reasonable probability of a different result. United States v.
Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). Constitutional error occurs
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when a jury is instructed on alternative theories of guilt and the jury returns a
general verdict that may rest on a legally invalid theory. Skilling, 130 S.Ct. at2934 (citing Yates v. United States, 77 S.Ct. 1064 (1957)). But incorrect jury
instructions generally are not considered structural errors; and harmless error
analysis applies to them. Hedgpeth v. Pulido, 129 S.Ct. 530, 532 (2008).
On appeal, Katopodis maintains that the government focused chiefly on
honest services fraud and that, as a result, the jury could not have found him guilty
of traditional fraud. But the government’s evidence focused almost exclusively on
Katopodis’s scheme to defraud CHK and Jefferson County of money.*
Witnesses testified that Jefferson County donated money to CHK with the
specific stipulation that the money be used only for CHK business. The evidence
also established that Katopodis made false representations and promises
repeatedly to Jefferson County to secure and maintain CHK’s funding. Belying
Katopodis’s certifications to Jefferson County, trial evidence showed that
Katopodis used the money for his own purposes including (1) using the CHK
ATM card to make cash withdrawals and other purchases at casinos in Louisiana
and Mississippi; (2) using CHK funds to pay off personal credit card bills; (3)
*
Traditional mail or wire fraud involves a scheme or artifice “to obtain money or
property by means of false or fraudulent pretenses, representations, or promises.” 18 U.S.C. §§
1341, 1343.
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buying airline tickets; and (4) buying personal items in other countries, including
the Bahamas and Egypt. Witnesses also testified about Katopodis’s spending
habits, trips they had taken with him, things he had purchased for them, and
Katopodis’s reluctance to disclose CHK’s financial records.
Given the overwhelming focus on Katopodis’s fraudulent representations
and improper spending of CHK funds, Katopodis’s argument that the
government’s case mainly was about honest services fraud is unpersuasive.
Katopodis has not shown a reasonable probability that, without the court’s
improper instruction about honest services fraud, he would not have been found
guilty of traditional money or property fraud; instead, his claims are speculative.
See Rodriguez, 398 F.3d at 1301 (“where the effect of an error on the result in the
district court is uncertain or indeterminate . . . the appellant has not met his burden
of showing a reasonable probability that the result would have been different but
for the error”).
Katopodis also argues that the district court abused its discretion when it did
not allow a witness for Katopodis to testify as an expert. We have explained that
“‘[r]elief for violations of discovery rules lies within the discretion of the trial
court; a defendant must show prejudice to his substantial rights to warrant reversal
of that discretion.’” United States v. Petrie, 302 F.3d 1280, 1289 (11th Cir. 2002)
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(citation omitted).
The district court abused no discretion in not allowing the witness to testify
as an expert. Katopodis did not give the government the required pre-trial written
notice about the nature of the witness’s testimony. See Fed.R.Crim.P. 16(b)(1)(C)
(“the defendant must, at the government’s request, give to the government a
written summary of any [expert] testimony that the defendant intends to use”
describing the witness’s opinions and qualifications). Instead, before trial,
Katopodis sent the government an e-mail stating that the witness would testify
about the government’s financial charts and charts prepared by the witness
himself. At trial, the witness testified about those very things. Katopodis has not
identified the substance of the precluded testimony or how it could have impacted
on the result at trial. He argues only that the government would not have been
prejudiced by a short delay in the trial to allow him to give proper notice. So,
Katopodis has failed to show how the district court’s ruling prejudiced him.
We now address Katopodis’s sentencing challenge. He argues that the
district court erred in applying an obstruction of justice enhancement because his
conduct was not motivated by a willfulness to obstruct justice. We review the
district court’s fact findings for clear error and the application of an obstruction of
justice enhancement based on those facts de novo. United States v. Bradberry,
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466 F.3d 1249, 1253 (11th Cir. 2006). Obstruction of justice occurs -- and a two-
level enhancement applies -- when, among other things, a defendant threatens,
intimidates, or otherwise unlawfully influences a witness directly or indirectly, or
attempts to do so. U.S.S.G. § 3C1.1, comment. n. 4(a).
The evidence at the sentencing hearing showed that, Katopodis went to the
house of a government witness (after both parties had rested but before closing
arguments) allegedly to serve a subpoena. Although the witness was not at home,
the witness’s daughter was at home; and she testified that Katopodis yelled at her
and told her she was lying when she said her mother was not home. In addition,
Katopodis invaded the daughter’s personal space and photographed her and the
cars parked on the property. During this exchange, the witness was on the phone
with her daughter and heard Katopodis yelling. On appeal, Katopodis concedes
that he should not have gone to the witness’s home. On these facts, we cannot say
that Katopodis’s purposeful acts did not constitute an attempt to intimidate a
witness; and the district court did not clearly err in applying the enhancement. See
United States v. Bradford, 277 F.3d 1311, 1315 (11th Cir. 2002) (a defendant’s
indirect threats made to a third party supported an obstruction of justice
enhancement under section 3C1.1).
AFFIRMED.
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