Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Justice Department Urges Rejection of Ex-Prisoner's Efforts to Upset 10-Year-Old Conviction, Sentence, (May 14, 2013)

By Jeffrey May, J.D.

The U.S. Court of Appeals in Atlanta should reject the "scattershot collection of dubious theories of relief" raised by a former senior project manager in the parts department of the Henry Pratt Company of Aurora, Illinois, who was convicted in 2003 of conspiring to commit mail fraud, wire fraud, and honest services fraud, the Department of Justice has argued in a brief submitted to the court yesterday. According to the government, "[e]ach theory is either time-barred, procedurally barred, substantively barred, or some combination thereof" (U.S. v. Triplett, No. 12-15479-E).

In November 2002, John F. Triplett was charged in connection with a kickback scheme used to defraud his employer, the Henry Pratt Company, which is a manufacturer and supplier of water treatment equipment used in water and wastewater treatment plants, nuclear power plants, and other industrial installations. The charge arose out of an investigation of the water and wastewater treatment equipment industry.

According to the Justice Department, Triplett was paid by co-conspirator Pumps, Valves & Equipment, Inc. (PVE), d/b/a The Scruggs Company, with substantial kickback payments in exchange for his arranging for Henry Pratt to make purchases from a front company, Eurotech Industries, Inc.

In April 2003, a jury convicted Triplett on all charges. Triplett was later sentenced to 51 months in prison, ordered to pay a $10,000 fine, and ordered to pay restitution in the amount of $86,512.02. The conviction and sentence were upheld on appeal in 2004. Although the U.S. Supreme Court vacated the judgment of the appellate court in light of U.S. v. Booker, 543 U.S. 220 (2005), the U.S. Court of Appeals in Atlanta reinstated its earlier opinion, affirming Triplett’s conviction and sentence.

After Triplett's prison term and term of supervised release ended and after he satisfied the monetary portion of his judgment of conviction, he asked the trial court to vacate his conviction in light of the U.S. Supreme Court's 2010 decision in Skilling v. U.S., 130 S. Ct. 2896, which limited the reach of the honest services statute.

The federal district court in Atlanta rejected Triplett's request for relief, adopting a magistrate judge's report and recommendation. It was noted that only a prisoner in federal custody or under any financial obligation with respect to the judgment of conviction could seek to vacate his sentence under 28 U.S.C. § 2255. Thus, the motion was dismissed for lack of jurisdiction. Similarly, a habeas corpus petition under 28 U.S.C. § 2241 had an in-custody requirement. The time for seeking other relief had long since expired, the court decided. Triplett appealed; however, he was not permitted to seek review of the denial of relief under 28 U.S.C. § 2255.

The Justice Department now argues that, even in the absence of the procedural defects of Triplett's appeal, his underlying argument—that the Supreme Court’s Skilling decision entitles him to reimbursement of his fine and restitution—ignores the circumstances of his case, because Triplett was found guilty of conspiring to commit each of three kinds of fraud: mail, wire, and honest services. "Triplett conspired specifically to perpetrate a kickback scheme, precisely the type of crime for which Skilling approved the use of the honest services fraud statute," the government argues.

"Skilling has no bearing on mail or wire fraud, and therefore casts no doubt on Triplett’s conspiracy conviction," according to the government. "In any event, Skilling approved honest services fraud prosecutions based on kickbacks like the ones Triplett received in this case."

The Justice Department went on to say that the window for Triplett's motion for a new trial closed more than five years before Triplett filed his motion. Triplett also was not entitled to either a writ of error coram nobis, which is a remedy to vacate a conviction after a petitioner is out of custody, or a writ of mandamus for an abuse of discretion, in the government's view.

Companies: Henry Pratt Co.; Scruggs Co.

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