Decided: November 29, 2012
The Fourth Circuit Court of Appeals affirmed the judgment of the district court sentencing Day to 105 years in prison in addition to fines, forfeitures, and restitution. Day was convicted of wire fraud, conspiracy to commit wire fraud, conspiracy to commit money laundering, and conspiracy to commit smuggling. Day committed these crimes in an attempt to defraud the Department of Defense (DOD) by supplying defective parts for use by the U.S. military.
Beginning in 2004 Day, along with his co-conspirators, set up various companies that bid on parts-supply contracts. When one of Day’s companies won a contract, Day would purchase similar but cheaper and nonconforming parts and deliver those parts to the DOD. Many of these parts were “critical application items” meaning that their failure could jeopardize lives of military personnel. When it became known that the parts were noncomplying, the company would lose its opportunity to bid on future projects. When this happened, Day would start up new companies to keep the scheme going. Day was ultimately arrested in July 2008 in Mexico after being on the run for over a year.
On appeal, Day attempted to argue that the jury instructions regarding an aiding and abetting theory were erroneous. Since Day’s counsel did not object to these instructions, the court reviewed his claim for plain error. Day argued that the instruction amounted to a constructive amendment of his indictment and violated the extradition rule of specialty. The court held that both of these arguments failed because aiding and abetting is a theory of liability, not a separate offense. Day also challenged his conviction for conspiracy to commit transportation money laundering. The court found that Day did transport funds into Mexico with the requisite design to conceal, that gold is a “monetary instrument or funds,” and the district court properly instructed the jury on the meaning of the term “proceeds.” Lastly, the court held that the district court did not err in its evidentiary rulings regarding mishandling of evidence. The court found that even if the district court had erred, it would have been harmless given the large amount of incriminating evidence against Day.