United States v. VanMeter

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 29 2002
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-6456

BRENT EUGENE VANMETER,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CR-00-67-T)

Submitted on the briefs. *

Daniel G. Webber, Jr., United States Attorney, Arlene Joplin, Assistant United
States Attorney, and Jerome A. Holmes, Assistant United States Attorney,
Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Mack K. Martin and J. David Ogle of Martin Law Office, Oklahoma City,
Oklahoma, for Defendant-Appellant.

Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and

*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case was therefore ordered submitted without oral argument on September
19, 2001.
ROGERS, ** District Judge.

BRORBY, Senior Circuit Judge.

A jury convicted Brent Eugene VanMeter, the defendant, of accepting a

bribe in violation of 18 U.S.C. § 666. On appeal, Mr. VanMeter asserts the

following: (1) the trial court should have suppressed wiretap communications

obtained pursuant to a court order that included unlawful references to offenses

not subject to wiretap investigation; (2) government agents violated the

“necessity” requirement of the federal wiretapping statute; (3) the government

violated the nondisclosure requirement of the federal wiretapping statute; (4)

there was insufficient evidence the bribe in question was related to Oklahoma

State Department of Health official business to sustain a conviction; and (5) the

trial court erroneously increased the sentence for supervising another participant

in the criminal scheme. Our jurisdiction arises pursuant to 28 U.S.C. § 1291.

After a careful review of each issue, we affirm.

**
The Honorable Richard D. Rogers, United States District Judge for the
District of Kansas, sitting by designation.

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 BACKGROUND

The federal Health Care Finance Administration requires nursing homes to

maintain certain minimum standards and undergo federally mandated inspections

to be eligible for Medicare or Medicaid payment. In Oklahoma, the federal

Health Care Finance Administration has delegated enforcement of these

regulations to the Oklahoma State Department of Health. Mr. VanMeter, a

Deputy Commissioner of the Oklahoma State Department of Health, was

responsible for overseeing Oklahoma’s nursing homes, including closing down

poorly preforming facilities. In 1996 the Medicaid Fraud Unit of the office of the

Oklahoma Attorney General and the Federal Bureau of Investigation (FBI) began

an investigation of corruption in the Oklahoma State Department of Health and in

particular of Mr. VanMeter. Using a variety of conventional investigation

techniques, investigators unearthed numerous leads, but were unable to discover

the full extent of corruption. Investigative techniques that produced partial

success included: visual surveillance at locations associated with the principal

suspects; the questioning and consensual telephone monitoring of six confidential

informants; witness interviews; pen registers; and toll records. Officials came to

suspect Mr. VanMeter was soliciting bribes, offering favored treatment to some

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care providers, and engaging in schemes to “trade” nursing home patients. 1

In order to complete the investigation, federal agents sought to obtain

permission to intercept telephone calls of Mr. VanMeter and other suspects. Title

III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18

U.S.C. § 2510-22 (1994 & Supp. 2000), sets out an application procedure for

federal investigators seeking permission to wiretap crime suspects. United States

v. Castillo-Garcia, 117 F.3d 1179, 1184 (10th Cir.), cert. denied, 522 U.S. 962,

522 U.S. 974 (1997). Agents must first obtain approval from the Attorney

General or a specially designated Assistant Attorney General. Id. at 1184-85.

Then, a judge of competent jurisdiction must approve an application submitted by

investigators. Id. at 1185. Judges may only authorize wiretaps where statutory

requirements are met, including a showing the wiretap is “necessary” to

investigate a serious offense enumerated on a statutory list. Id.; 18 U.S.C.

§ 2516. Also, Title III forbids disclosure of intercepted communications except

under limited exceptions. 18 U.S.C. § 2517.

1
Nursing homes have a strong financial incentive to maintain high resident
occupancy. Patient “trading” involves moving nursing home patients to a facility
based on the financial interests of the operator, rather than the health interests and
personal choice of the patients.

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 On March 9, 2000 the FBI obtained a memo from a specially designated

Assistant Attorney General approving a court application for authorization to

wiretap suspects’ telephones. This memo and subsequent application materials

included lists of suspected offenses, one of which was not enumerated in the

statute as subject to wiretap investigation. 2 The wiretap application incorrectly

characterized this non-enumerated offense as enumerated. The application

included a forty-page FBI agent’s affidavit detailing previous investigation efforts

and explaining why normal investigative techniques were unlikely to succeed or

would jeopardize the investigation. The affidavit explained visual surveillance

could only partially succeed, since agents needed to know the subject matter of

conversations to prove the suspects’ corruption. The agent believed potential

witnesses were unlikely to cooperate because they feared retaliation from Mr.

VanMeter and other insiders, even under grand jury subpoena. The agent

explained search warrants and banking document subpoenas were unlikely to

uncover direct evidence of corruption and would alert suspects to the

investigation. Also, the agent explained suspected nursing home operators and

government officials were a close-knit group, making infiltration of undercover

2
This offense was 42 U.S.C. § 1320 (proscribing fraud related to federal
health care programs). 42 U.S.C. § 1320a-7b is not included in the list of
offenses subject to wiretap investigation. 18 U.S.C. § 2516.

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agents or confidential informants difficult and unlikely to succeed. Finally, the

agent placed these investigation difficulties against the backdrop of continuing

health risks to nursing home patients from dangerous patient “trading.” The

district court approved the application and issued an order authorizing

communication interceptions to investigate three offenses enumerated on the

statutory list for a period of thirty days. 3

At the end of the thirty days, the Special Assistant Attorney General issued

another memo authorizing agents to seek an extension of the wiretap order for an

additional thirty days. A subsequent application requested permission to wiretap

in investigation of nine offenses, two of which were not included on the statutory

list of offenses subject to wiretapping. 4 Moreover, the application incorrectly

3
These three offenses were 18 U.S.C. § 371 (conspiracy), 18 U.S.C.
§ 1951 (interference with commerce by threats or violence), and 18 U.S.C. § 1952
(interstate and foreign travel or transportation in aid of racketeering enterprises).
Sections 1951 and 1952 are both explicitly enumerated as subject to wiretap
investigation. 18 U.S.C. § 2516(1)(c). However, Title III does not mention 18
U.S.C. § 371 (conspiracy) by section number in its enumerated list. 18 U.S.C.
§ 2516. Nevertheless, the list does allow wiretapping to investigate “any
conspiracy to commit any offense” elsewhere enumerated in the statute, thereby
arguably including 18 U.S.C. § 371. 18 U.S.C. § 2516(1)(p).

4
These two non-enumerated offenses were 42 U.S.C. § 1320 (fraud
relating to health care programs), and 18 U.S.C. § 1518 (obstruction of criminal
investigation of health care offenses). 18 U.S.C. § 2516.

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characterized these two non-enumerated offenses as enumerated. The application

materials for the wiretap extension also included a second affidavit from the FBI

agent. This fifty-three-page affidavit explained the progress of the investigation

and the continuing need for wiretap authorization. The district court approved the

extension and issued another order authorizing interception to investigate the

same three enumerated offenses as the previous order.

On April 17, 2000, federal agents intercepted a telephone call between Mr.

VanMeter and Robert James Smart, the owner of a business operating several

Oklahoma nursing homes. During the telephone call Mr. Smart explained his

nursing home business had lost about $50,000 in revenue from its business

decision to certify its facilities for payment under both the Medicare and

Medicaid systems during the previous year. Mr. Smart suggested that Mr.

VanMeter falsify government records by planting a backdated letter into

government files. This would allow Mr. Smart’s company to fraudulently collect

payment for medical services from the government. Mr. VanMeter agreed to the

arrangement in exchange for “two percent.”

Mr. VanMeter and Mr. Smart proceeded to enlist the help of Richard Pralle,

one of Mr. Smart’s employees, to perpetrate their deceit. After consulting with

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Mr. VanMeter on the demeanor and approach Mr. Pralle should use, Mr. Smart

instructed Mr. Pralle to prepare a letter falsely backdated to May 7, 1999. Mr.

VanMeter spoke directly with Mr. Pralle about how to explain to Oklahoma State

Department of Health officials why the fraudulently backdated letter was not

present in government files. When federal Health Care Finance Administration

officials asked for further details about the fraudulent May 7, 1999 letter, Mr.

VanMeter directed Mr. Pralle over the telephone to prepare additional letters

corroborating the backdated letter. In an intercepted telephone call on April 28,

2000, Mr. Pralle read another proposed fraudulent letter to Mr. VanMeter in order

to obtain advice and approval of its contents. Throughout, Mr. VanMeter

instructed Mr. Pralle, either directly or through others, about what to say and

write in order to conceal their plot.

Later, federal agents followed Mr. VanMeter to a meeting with Mr. Smart,

where Mr. Smart delivered money to Mr. VanMeter. Following the meeting, Mr.

VanMeter went to a legal gambling operation where federal agents observed him

placing bets. The FBI arrested both Mr. VanMeter and Mr. Smart later that day.

In a criminal complaint attempting to show probable cause for these arrests, an

FBI agent included an affidavit reprinting incriminating quotes from the April 17,

2000 telephone conversation. After a pre-trial hearing, the district court denied

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motions from Mr. Smart and Mr. VanMeter to suppress tape recordings of the

incriminating telephone conversations based on violations of the federal

wiretapping statute. The defendants argued the court wiretap authorizations were

procedurally flawed, the wiretaps were not “necessary,” and inclusion of

intercepted quotes in the criminal complaint improperly disclosed confidential

information. At a joint trial, a jury convicted both men of violating 18 U.S.C.

§ 666 (theft or bribery concerning programs receiving federal funds). During

sentencing, the district court applied a two-level upward adjustment to the

sentencing guidelines premised upon Mr. VanMeter’s management and

supervision of Mr. Pralle. The district court sentenced Mr. VanMeter to thirty-six

months in prison and fined him $50,000. This appeal followed.

DISCUSSION

I.

Mr. VanMeter argues the wiretap application materials and orders allowed

“interception to be undertaken under the authority of Title III for non-enumerated

offenses,” thereby rendering those orders invalid. In particular, Mr. VanMeter

concludes references in wiretap application materials and orders to crimes not

enumerated in 18 U.S.C. § 2516 justify suppression of evidence obtained from the

wiretaps. We find this argument unpersuasive. Pursuant to Rule 28(i) of the

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Federal Rules of Appellate Procedure, Mr. VanMeter joined in the brief of his co-

defendant at trial, Mr. Smart. On this issue, Mr. VanMeter’s and Mr. Smart’s

legal positions are substantively the same. For the sake of judicial efficiency, we

refer the parties to this court’s reasoning in an opinion affirming Mr. Smart’s

conviction in case No. 00-6458. See United States v. Smart, ___ F.2d ___ (10th

Cir. Jan. 29, 2002).

II.

Next, Mr. VanMeter argues the district court should have suppressed the

wiretap evidence because the government failed to “prove that normal or

conventional investigative techniques had been tried and failed or reasonably

appeared to be unlikely to succeed.” The government counters “[t]he sheer

quantity of facts that the United States marshaled in support of its necessity

showing speaks to its adequacy.” The district court agreed “the record reflects

that the necessity requirements for a Title III wiretap were satisfied.”

Two recent opinions in this circuit have noted confusion over the

appropriate standard of review for determinations of “necessity,”and then

affirmed under either possible standard. United States v. Mitchell, 274 F.3d 1307

(10th Cir. Oct. 23, 2001) (ordered published Dec. 11, 2001); United States v.

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Garcia, 232 F.3d 1309, 1312-13 (10th Cir. 2000). In United States v.

Armendariz, 922 F.2d 602 (10th Cir.), cert. denied, 502 U.S. 823 (1991), we

quoted the Ninth Circuit standard: “‘Although we examine de novo whether ‘a

full and complete statement’ was submitted meeting section 2518(1)(c)’s

requirements, we review the conclusion that the wiretap [was] necessary in each

situation for an abuse of discretion.’” Id. at 608 (quoting United States v. Brown,

761 F.2d 1272, 1275 (9th Cir. 1985)). However, after Armendariz, every Tenth

Circuit case has applied de novo review, or affirmed without specifying a

standard. 5 Although we follow an earlier, settled precedent over a subsequent

5
Our precedent has consistently employed de novo review of the
“necessity” requirement. United States v. Iiland, 254 F.3d 1264, 1268 (10th Cir.
2001) (“The question of whether the government demonstrated sufficient
‘necessity’ ... to support the issuance of a wiretapping order is a question of law
which we review de novo.”); Castillo-Garcia, 117 F.3d at 1186 (“The question of
whether the government demonstrated sufficient ‘necessity’ under 18 U.S.C.
§ 2518(1)(c) (1994) to support the issuance of a wiretapping order is a question of
law which we review de novo.”), cert. denied, 522 U.S. 962, 522 U.S. 974 (1997);
United States v. Killingsworth, 117 F.3d 1159, 1163-64 (10th Cir. 1997) (“We
review de novo whether the necessity requirement was met.”); United States v.
Quintana, 70 F.3d 1167, 1169 (10th Cir 1995) (“We review de novo whether the
§ 2518(1)(c) necessity requirement was met.”); United States v. Edwards, 69 F.3d
419, 429 (10th Cir. 1995) (“We review de novo whether the order complies with
the necessity requirement.”), cert. denied, 517 U.S. 1243 (1996); United States v.
Mondragon, 52 F.3d 291, 292 (10th Cir. 1995) (“We review de novo whether the
necessity requirement was met.”); United States v. Williams, 45 F.3d 1481, 1484
(10th Cir. 1995) (“The validity of a wiretap order, however, is a conclusion of law
which is reviewed de novo.”). Our unpublished dispositions have similarly relied
on de novo review. United States v. Arrington, 216 F.3d 1088, 2000 WL 775576
(10th Cir. June 16, 2000) (“The question of whether the government demonstrated
sufficient “necessity” under 18 U.S.C. § 2518(1)(c) (1994) to support issuance of

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derivation, Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996), the

Armendariz standard cannot be described as “settled.” We can find no Tenth

Circuit case, aside from Armendariz, that has ever reviewed the “necessity”

question for abuse of discretion.

Conversely, in Castillo-Garcia, we developed a predictable procedure for

employing de novo review. 117 F.3d 1179 at 1186-88. De novo review under the

Castillo-Garcia framework is consistent with our prior, settled commitment to

“commonsense” review of wiretap authorizations. United States v. Nunez, 877

F.2d 1470, 1472 (10th Cir.), cert. denied, 493 U.S. 981 (1989). Therefore, absent

en banc reconsideration or superseding Supreme Court precedent, 6 our case law

a wiretap order is a question of law we review de novo.”); United States v. Victor
Medina Diaz, 161 F.3d 18, 1998 WL 614460 (10th Cir. Sept. 8, 1998) (“Whether
the court’s order authorizing interception of wire, oral, or electronic
communications complies with the “necessity” requirement is a question of law
we review de novo.”); United States v. Mario Diaz, 153 F.3d 728, 1998 WL
380935 (10th Cir. Jun. 17, 1998) (“We review de novo whether the order
complies with the necessity requirement.”); United States v. Bovie, 120 F.3d 271,
1997 WL 423114 (10th Cir. Jul. 29, 1997) (“Whether the government
demonstrated sufficient ‘necessity’ under 18 U.S.C. § 2518(1)(c) (1994) to
support issuance of a wiretapping order is a question of law we review de novo.”).

6
Disagreement predominates in our sister circuits over the appropriate
standard of review for determinations of “necessity” under 18 U.S.C. § 2518(1)(c)
and (3)(c). The First and Second Circuits review whether “minimally adequate”
facts support the district court’s determination. United States v. Scibelli, 549
F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960 (1977); United States v.
Miller, 116 F.3d 641, 663 (2d Cir. 1997), cert. denied, 524 U.S. 905 (1998). The

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compels us to review the “question of whether the government demonstrated

sufficient ‘necessity’ to support the issuance of a wiretapping order ... de novo.”

Iiland, 254 F.3d at 1268 (alteration and citation omitted).

This clarification of the standard of review for the “necessity” requirement

does not change our other settled standards. We still accept the district court’s

factual findings unless clearly erroneous and view evidence in the light most

favorable to the prevailing party. Iiland, 254 F.3d at 1268. Moreover, on appeal

Third and Ninth Circuits review de novo whether a full and complete statement
was made in the application and review the district court’s determination of
necessity for an abuse of discretion. United States v. Phillips, 959 F.2d 1187,
1189 (3d Cir.), cert. denied, 506 U.S. 987 (1992); United States v. Brown, 761
F.2d 1272, 1276 (9th Cir. 1985). The Fourth Circuit has not yet chosen a
standard of review, merely noting the government’s burden of showing
“necessity” is not great. United States v. Smith, 31 F.3d 1294, 1298 (4th Cir.
1994), cert. denied, 513 U.S. 1181 (1995). The Fifth Circuit appears to have
conflicting authority. Compare United States v. Kelley, 140 F.3d 596, 604 (5th
Cir.) (reviewing for clear error), cert. denied, 525 U.S. 880, 525 U.S. 908 (1998)
with United States v. Bennett, 219 F.3d 1117, 1121 (5th Cir.) (reviewing for abuse
of discretion), cert. denied, 531 U.S. 1056, 531 U.S. 1153 (2000). The Sixth
Circuit and the D.C. Circuit appear to review for abuse of discretion. United
States v. Corrado, 227 F.3d 528, 539 (6th Cir. 2000); United States v. Sobamowo,
892 F.2d 90, 93 (D.C. Cir. 1989), cert. denied, 498 U.S. 825 (1990). The Seventh
Circuit appears to affirm a district court’s necessity determination if there is a
“factual predicate” to support it. United States v. Zambrana, 841 F.2d 1320, 1330
(7th Cir. 1988). The Eighth Circuit and the Eleventh Circuit review for clear
error. United States v. Davis, 882 F.2d 1334, 1343 (8th Cir. 1989), cert. denied,
494 U.S. 1027 (1990); United States v. Green, 40 F.3d 1167,1172-73 (11th Cir.
1994), cert. denied, 514 U.S. 1089, 515 U.S. 1110 (1995).

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“a district court’s wiretap authorization is presumed proper, and the defendant

bears the burden of overcoming this presumption.” Killingsworth, 117 F.3d at

1163.

Congress has required investigators to show the “necessity” of any wiretap

application by providing “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

This section of the federal wiretap statute serves to insure that wiretapping is not

used in situations where traditional investigative techniques would suffice to

expose the crime. United States v. Johnson, 645 F.2d 865, 867 (10th Cir.), cert.

denied, 454 U.S. 866 (1981). Our case law establishes normal investigative

procedures subject to 18 U.S.C. § 2518(1)(c) include:

(1) standard visual and aural surveillance; (2) questioning and
interrogation of witnesses or participants (including the use of grand
juries and the grant of immunity if necessary); (3) use of search
warrants; and (4) infiltration of conspiratorial groups by undercover
agents or informants.... We add pen registers and trap and trace
devices to this list because they possess a logical relationship and
close affinity to wiretaps and yet are less intrusive.

Castillo-Garcia, 117 F.3d at 1187-88.

In this case, federal agents used normal investigation procedures or

reasonably explained why those procedures would fail or be too dangerous.

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Agents conducted visual surveillance of Mr. VanMeter and other suspects at

several locations. Investigators also explained that further visual observation

would not establish the extortionate subject matter of conversations held in

private locations or on the telephone. Agents conducted aural surveillance by

obtaining the consent of confidential informants to listen to telephone

conversations with suspects. To obtain the cooperation of these informants,

federal agents questioned and interrogated witnesses and participants. However,

because the cooperating informants were outside the circle of trusted conspirators,

they could obtain only limited information. The government reasonably feared

approaching other potential witnesses would alert the principal suspects of the

investigation. Moreover, the government reasonably believed Oklahoma State

Department of Health employees and nursing home operators would not risk

retaliation from Mr. VanMeter.

Similarly, agents reasonably explained their choice to not use grand jury

investigation or grants of immunity. Under the circumstances investigators

believed the risk that witnesses would lie to the grand jury, claim their Fifth

Amendment privilege, or inform principal suspects of the investigation

outweighed modest potential evidentiary gains. Agents also explained search

warrants were not reasonably likely to produce physical evidence of the verbal

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communications at the heart of the extortion investigation. Furthermore, the

government explained infiltrating undercover agents or informants was

unreasonable under the circumstances. To successfully infiltrate the “tight-knit”

nursing home community would have taken many additional months or years.

This delay would have continued to risk the safety and health of nursing home

residents. Finally, agents used pen registers and toll records to establish the

number and duration of calls. However, these records could not uncover the

content of the conversations at issue in the extortion investigation. Because

federal agents used normal investigation procedures or reasonably explained why

those procedures would fail or be too dangerous, Mr. VanMeter has not overcome

the presumption the wiretap authorizations were proper.

III.

Mr. VanMeter next argues inclusion of quotes and paraphrased language

from the intercepted telephone conversations in the criminal complaint “violated

the sealing and non-disclosure requirement” of the federal wiretapping statute.

Congress allows law enforcement officers to disclose intercepted telephone

conversations where appropriate to the proper performance of official duty. The

federal wiretap statute states:

Any investigative or law enforcement officer who, by any means
authorized by this chapter, has obtained knowledge of the contents of

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 any wire, oral, or electronic communication or evidence derived
therefrom may use such contents to the extent such use is appropriate
to the proper performance of his official duties.

18 U.S.C. § 2517(2). Disclosure under the § 2517(2) performance of duty

exception does not require prior sealing in compliance with § 2518(8)(a). United

States v. Carson, 52 F.3d 1173, 1186 (2d Cir. 1995). The Seventh Circuit has

held “Title III does not forbid the government to make public disclosure of

criminal charges even if the charges include information obtained from

wiretapping unless the criminal proceedings themselves are nonpublic.” Apampa

v. Layng, 157 F.3d 1103, 1106 (7th Cir. 1998) (citation omitted), cert. denied, 528

U.S. 908 (1999). Whether briefly quoting intercepted communications in the

criminal complaint is a permissible disclosure under Title III presents a legal

question subject to de novo review. Castillo-Garcia, 117 F.3d at 1186.

Establishing probable cause to arrest suspected criminals before a magistrate is at

the core of law enforcement officers’ official duties. 7 Moreover, federal agents

7
Mr. VanMeter’s citation of Certain Interested Individuals v. Pulitzer
Publ’g Co., 895 F.2d 460 (8th Cir.), cert. denied, 498 U.S. 880 (1990), is
unpersuasive. Certain Interested Individuals does not address whether agents
may include quotes from intercepted material in publicly filed documents
consistent with proper performance of their official duties. Id. at 465. Rather,
that decision takes for granted such use is permissible under § 2517(2). Id. (“18
U.S.C. § 2517(2) ... authorizes the use of wiretap information in search warrant
affidavits.”). At issue in Certain Interested Individuals was whether affidavits
filed with the court would be turned over to a newspaper, not whether initial
public filing of documents containing intercepted material is permissible. Id. at
461-62. Mr. VanMeter mistakenly argues Certain Interested Individuals prohibits

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quoted and paraphrased only as much intercepted communication as was

necessary to present probable cause for Mr. VanMeter’s arrest. Preventing

officers from including limited disclosure to obtain arrest warrants would

frustrate Congressional intent to allow legitimate wiretap interceptions in criminal

prosecutions. Accordingly, we hold the federal agent was within his official duty

when he briefly quoted and paraphrased intercepted telephone communications to

establish probable cause for Mr. VanMeter’s arrest.

IV.

Mr. VanMeter argues there was insufficient evidence to sustain a

conviction of bribery concerning a program receiving federal funds under 18

U.S.C. § 666. Mr. VanMeter does not here dispute he solicited a bribe in

exchange for helping a nursing home operator defraud funds controlled by the

federal Health Care Finance Administration. Rather, Mr. VanMeter contends the

bribe was not connected to a transaction “of” his agency within the meaning of

the offense because these federal funds were “not the money of the Oklahoma

State Department of Health.” We review the sufficiency of evidence for clear

error. United States v. Reynolds, 960 F.2d 1501, 1511 (10th Cir.), cert. denied,

the initial public filing of the documents, which it does not.

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506 U.S. 1035 (1992). Section 666 states:

Whoever ... being an agent ... of a State ... or any agency thereof ...
corruptly solicits ... anything of value from any person, intending to
be influenced or rewarded in connection with any business,
transaction, or series of transactions of such organization,
government, or agency involving anything of value of $5,000 or more
... shall be fined under this title, imprisoned not more than 10 years,
or both.

18 U.S.C. § 666(a) (emphasis added). Whether the federal government or Mr.

VanMeter’s Oklahoma agency controlled the money Mr. Smart hoped to

appropriate is irrelevant. The federal Health Care Finance Administration

delegated to the Oklahoma State Department of Health responsibility to maintain

accurate records of bed certification in Oklahoma nursing homes. Therefore,

receiving a fraudulently backdated letter concerning a nursing home’s

qualification for federal payment is a transaction “of” the Oklahoma State

Department of Health. The actual payment of Medicare funds is not the

transaction at issue in this case. Accordingly, we find Mr. VanMeter’s

insufficient evidence argument is without merit.

V.

Finally, Mr. VanMeter argues the district court erred in applying a two-

level upward adjustment for supervising Richard Pralle, an employee of the J.

Smart Company, in furtherance of the scheme. Specifically, Mr. VanMeter

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contends Mr. Pralle was not a “participant” within the meaning of the federal

sentencing guidelines because Mr. Pralle was not “criminally responsible for

commission of the offense of offering or soliciting a bribe as defined by 18

U.S.C. § 666.” The United States Sentencing Guidelines Manual applies a two-

level upward adjustment where the defendant was “the organizer, leader,

manager, or supervisor of one or more other participants.” U.S.S.G. § 3B1.1,

comment. (n.2) (2000). “A ‘participant’ is a person who is criminally responsible

for the commission of the offense, but need not have been convicted.” Id.,

comment. (n.1). Moreover, “[t]he determination of a defendant’s role in the

offense is to be made on the basis of all conduct within the scope of § 1B1.3

(Relevant Conduct), ... and not solely on the basis of elements and acts cited in

the count of conviction.” Id., Ch. 3, Pt.B, intro. comment. (emphasis added). We

review a sentencing court’s determination that a defendant was an organizer,

leader, manager, or supervisor of a criminal activity under the Sentencing

Guidelines for clear error. United States v. Cruz Camacho, 137 F.3d 1220, 1223-

24 (10th Cir. 1998).

Mr. VanMeter’s argument fails because we consider all relevant conduct

under U.S.S.G. § 1B1.3 in determining the application of a U.S.S.G. § 3B1.1

aggravating role adjustment. U.S.S.G., Ch. 3, Pt.B, intro. comment. Mr.

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VanMeter supervised Mr. Pralle in committing crimes in order to further and

conceal their scheme to defraud the government. Mr. VanMeter gave instructions

to Mr. Pralle on how to convince Oklahoma State Department of Health officials

the fraudulently backdated letter was genuine. Moreover, Mr. VanMeter told Mr.

Pralle to prepare additional letters corroborating the backdated letter to quell the

suspicions of the federal Health Care Finance Administration. Mr. Pralle even

recited a proposed fraudulent letter over the telephone for Mr. VanMeter’s

approval. Accordingly, the district court found Mr. Pralle was a “participant”

because he was criminally responsible for violations of 18 U.S.C. § 1035

(outlawing willful concealment of material facts and materially false statements

about reimbursement for health care services) and § 1347 (proscribing schemes to

defraud health care programs). It makes no difference Mr. Pralle may not have

been responsible for violating 18 U.S.C. § 666. The district court correctly

applied the aggravating adjustment based on Mr. VanMeter’s supervision of Mr.

Pralle’s other relevant crimes. Therefore, we find no clear error in the district

court’s upward adjustment of Mr. VanMeter’s sentence.

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 For the above reasons, we AFFIRM the district court rulings on all issues

presented. 8

8
The government filed a motion to supplement the record, asking to
include a transcript of an April 17, 2000 telephone conversation between Mr.
VanMeter and Mr. Smart. Because a transcript of the April 17 conversation
would not materially aid our decision, the government’s motion to supplement the
record is denied.

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00-6456, United States v. VanMeter

LUCERO, Circuit Judge, concurring.

I join the majority opinion in all respects, save Part II, as to which I concur

in the result. I cannot join Part II because the appropriate standard of review for

examining whether the government has satisfied the necessity requirement of 18

U.S.C. § 2518(1)(c) was settled in United States v. Armendariz, 922 F.2d 602

(10th Cir. 1990), as being review for abuse of discretion. 1

Under Haynes v. Williams, “[a] published decision of one panel of this

court constitutes binding circuit precedent constraining subsequent panels absent

en banc reconsideration or a superseding contrary decision by the Supreme

Court.” 88 F.3d 898, 900 n.4 (10th Cir. 1996). A corollary to this principle is

that when faced with an intra-circuit conflict, “a panel should follow earlier,

settled precedent over a subsequent deviation therefrom.” Id.; see also King of

the Mountain Sports, Inc. v. Chrysler Corp., 185 F.3d 1084, 1089 n.1 (10th Cir.

1999) (“To the extent that a more recent panel decision conflicts with the standard

of review enunciated in prior Tenth Circuit authority, we are bound by the earlier

cases.” (citing Clymore v. United States, 164 F.3d 569, 573 n.5 (10th Cir. 1999))).

The majority concludes that Armendariz does not preclude de novo review

1
“Although we examine de novo whether a full and complete statement
was submitted meeting section 2185(1)(c)’s requirements, we review the
conclusion that the wiretap[] [was] necessary in each situation for an abuse of
discretion.” Armendariz, 922 F.2d at 608 (quotation omitted).
because Armedariz’s articulation of the standard of review “cannot be described

as ‘settled.’” (Maj. Op. at 12.) I disagree. Armendariz settled this point of law

when it announced the relevant standard of review for the first time in a published

opinion that has yet to be overruled by the en banc court. As settled precedent,

Armendariz cannot be dismissed by subsequent panels. 2

The panel could have sought en banc review of the standard of review as

was done in Romano v. Gibson, 239 F.3d 1156 (10th Cir.), cert. denied, 122 S. Ct.

628 (2001), where the panel was similarly faced with an intra-circuit conflict.

The Romano panel concluded that the earlier, binding, authority was incorrect;

however, it was constrained by the principle that “[w]hen confronted . . . with

inconsistent Tenth Circuit holdings, we are generally bound by the first decision.”

Id. at 1169. The issue was therefore submitted to the en banc court, which

reconsidered the earlier authority and allowed the panel to apply the rule

announced in the subsequent cases. Id.

I conclude that absent en banc reconsideration, we are bound by

Armendariz.

2
Moreover, the Armendariz articulation of the standard of review is more
consistent with the jurisprudence of our sister circuits than the majority’s
analysis.

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