            Case: 12-11305    Date Filed: 12/12/2012   Page: 1 of 11

                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-11305
                           Non-Argument Calendar
                         ________________________

                 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.

                        ________________________

                 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
             Case: 12-11305     Date Filed: 12/12/2012   Page: 2 of 11

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

                                          2
             Case: 12-11305     Date Filed: 12/12/2012   Page: 3 of 11

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

                                         3
               Case: 12-11305       Date Filed: 12/12/2012       Page: 4 of 11

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.

                                               4
               Case: 12-11305       Date Filed: 12/12/2012      Page: 5 of 11

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.

                                               5
              Case: 12-11305      Date Filed: 12/12/2012    Page: 6 of 11

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

                                            6
               Case: 12-11305       Date Filed: 12/12/2012       Page: 7 of 11

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).

                                               7
              Case: 12-11305     Date Filed: 12/12/2012   Page: 8 of 11

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

                                           8
                Case: 12-11305       Date Filed: 12/12/2012       Page: 9 of 11

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.

                                                9
               Case: 12-11305        Date Filed: 12/12/2012       Page: 10 of 11

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.

                                                10
             Case: 12-11305     Date Filed: 12/12/2012   Page: 11 of 11

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.




                                         11
