UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4877

HARVEY L. ADLER,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CR-00-301-AMD)

Argued: September 26, 2002

Decided: October 18, 2002

Before WILKINSON, Chief Judge, WIDENER, Circuit Judge,

and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Stephen Frederic Brennwald, BRENNWALD & ROBERTSON, L.L.P., Washington, D.C., for Appellant. Kathleen

O’Connell Gavin, Assistant United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States

Attorney, Dale P. Kelberman, Assistant United States Attorney, Baltimore, Maryland, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Harvey Adler was indicted and tried before a jury for numerous

violations of 18 U.S.C. § 1001, a criminal provision of the False

Claims Act. A jury found Adler guilty of nine of ten counts of submitting inflated billing invoices to the Housing Authority of Baltimore

City. Adler now appeals, challenging two of the trial court’s jury

instructions, the enhancement of his sentence pursuant to U.S.S.G.

§ 3C1.1, the trial judge’s failure to recuse himself sua sponte, and the

sufficiency of the evidence on one of the counts. Finding no merit in

any of these claims, we affirm the judgment of the district court. 

I.

Harvey Adler ("Adler") was president and sole owner of Adler Services Group ("ASG"), a company that maintained and repaired heating systems. On June 14, 2000, a federal grand jury in the District of

Maryland returned an indictment charging Adler and Scott Dower,

ASG’s former vice-president of operations, with ten counts of making

false statements about matters within the jurisdiction of the United

States Department of Housing and Urban Development ("HUD") in

violation of 18 U.S.C. § 1001. Each count charged Adler and Dower

with submitting false and fraudulent invoices that inflated the number

of hours worked at specific HUD-funded properties between 1995

and 1997. 

The indictment alleged that "from in or before October 1992 and

continuing until in or about December 1997," Adler and Dower "devised a plan to defraud HABC and HUD" by submitting inflated billing invoices that contained materially false and fraudulent statements.

Dower pleaded guilty and agreed to testify for the government. Jury

selection and trial commenced on July 16, 2001. 

2 UNITED STATES v. ADLER
Between October 1992 and December 1997, ASG sought and was

awarded several contracts, commonly called purchase orders, with the

Housing Authority of Baltimore City ("HABC"). The contracts called

for preventive maintenance and emergency service of oil- and gasfired residential furnaces at public housing units.* The purchase

orders covered the cleaning and inspection of furnaces for a flat rate

fee, additional minor repair work on a time and materials basis up to

a maximum dollar amount, and emergency or service calls for furnace

repair. At trial Thomas Dawson, an HABC employee who was

responsible for purchasing supplies and services, testified that any

changes to the purchase orders had to be done in writing. 

The evidence presented at trial established that Adler directed ASG

employees to falsify their labor hours on invoices submitted to HABC

at various times throughout the contract relationship. Carl Andrews,

the technician who supervised all of the preventive maintenance work

from 1992 to 1996, testified that the invoices created by the billing

system ASG used until 1996 were usually overcharged. Andrews also

testified that HABC was sometimes billed for work that was never

completed. 

John Palumbo, a former ASG technician, testified about the facts

underlying count two of the indictment, relating to a property on

Odell Avenue. Palumbo reviewed a number of government exhibits

relating to work performed on January 2, 1996. The exhibits showed

that thirty hours were billed for work performed on January 2, 1996,

but that Palumbo had only worked eight hours that day. Adler could

not produce any time sheets or work orders reflecting that any other

technicians performed services on that day. Palumbo testified that

sometimes other helpers accompanied him to the properties, but that

he did not know if anyone accompanied him on January 2. 

Adler’s defense consisted of two main points: (1) that none of the

invoices were overbilled prior to 1996, including the January 2

Palumbo invoice; and (2) that Adler only began overbilling in the fall

of 1996 after HABC authorized him to do so. Shortly before the

1996-1997 heating season began, HABC removed the preventive

maintenance work from ASG’s contract. According to Adler, this

*HABC receives its annual funding from HUD. 

UNITED STATES v. ADLER 3
made it very difficult for ASG to make a profit because the preventive

maintenance work constituted such a large part of the contracts.

Shortly thereafter, at a meeting with Dower and three other ASG

employees, Adler instructed them to start including a two-hour minimum on each billing invoice so that ASG could cover its costs.

Dower testified that in November 1997, Diana Bell, an ASG

employee who processed invoices, went to Adler with a stack of

invoices with inflated hours. Dower heard Bell tell Adler that she did

not have any documentation to support the inflated hours, but Adler

responded "I don’t care what you have to do. This bill is entirely too

low." In addition, a number of other ASG employees testified that

they falsified their labor hours on work orders and time sheets pursuant to Adler’s orders. 

Adler testified at trial, but did not deny instructing his technicians

to add a two-hour minimum to their work orders. Instead, Adler justified the falsified invoices by testifying that Terry Downey, the comptroller at HABC, had given him permission to inflate hours in order

to cover ASG’s indirect costs. Adler testified that Downey "directed

[him] in the rebilling process to incorporate the indirect labor charges

in a line item on the rebilling and then roll those hours into the labor

charges." Adler admitted, however, that Downey never put anything

to that effect into writing. 

Both the government and the defense subpoenaed Downey for the

trial, but neither side called him to testify. Downey had refused to

speak with defense counsel before trial. The government did, however, produce copies of the government investigators’ reports compiled from interviews with Downey. And Downey was physically

present in the courthouse at several points during the trial. 

After the close of evidence, the government asked the court to

instruct the jury that both sides had subpoenaed Downey, and that he

was therefore equally available to both sides as a witness. Adler’s

counsel objected to the instruction because Downey had refused to

talk to him before testifying. The district judge told the parties he

would only give the instruction if Adler’s counsel made some sort of

missing-witness argument asking the jurors to draw an adverse inference from the government’s failure to call Downey. Adler’s counsel

did argue this point during his closing. Thus, the court instructed the

4 UNITED STATES v. ADLER
jury "that Mr. Downey . . . was equally available to both the defense

and the government in this case." Upon Adler’s request, the judge

also instructed the jury on the "good faith" defense. 

On July 26, 2001, the jury returned a verdict of not guilty as to

count one and guilty as to the remaining counts two through ten. At

sentencing, the district judge determined that Adler committed perjury on the witness stand and therefore enhanced his base offense

level two points for obstruction of justice. See U.S.S.G. § 3C1.1

(2002). The court then sentenced Adler to forty-one months imprisonment and three years of supervised release for each count, with all

nine sentences to run concurrently with each other. The court also

ordered Adler to make a restitution of $235,000 and to pay a special

assessment of $900.00. Adler now appeals. 

II.

Adler first argues that the district court made two errors in its jury

instruction on his good faith defense. The standard instruction on

good faith in the context of the crime of false statements is: 

A statement made with good faith belief in its accuracy does

not amount to a false statement and is not a crime. This is

so even if the statement is, in fact, erroneous. The burden of

establishing lack of good faith and criminal intent rests upon

the prosecution. A defendant is under no burden to prove his

good faith; rather, the prosecution must prove bad faith or

knowledge of falsity beyond a reasonable doubt. 

Modern Federal Jury Instructions, § 8.01. The district court instructed

the jury: 

[T]he defendant in this case contends that the statements

which are the subject of this case were made in good faith,

in that they were made in reliance upon the authority of the

Housing Authority of Baltimore City. A statement made

with a good faith belief in its accuracy is not a false statement under the relevant statute. The burden is upon the government to prove that the defendant did not act in good faith.

UNITED STATES v. ADLER 5
First, Adler argues that the district court’s instruction constituted plain

error because the court’s use of the word "accuracy" essentially gutted

Adler’s defense. Since Adler admitted to purposefully inflating the

invoices, Adler argues that the good faith defense should not have

hinged on Adler’s belief in the accuracy of the invoices. Instead, the

judge should have instructed the jury that it could find good faith if

it concluded that Adler believed he was authorized to submit the

inflated, inaccurate invoices. Second, Adler argues that the instruction

constituted plain error because it did not inform the jury that the government must disprove good faith beyond a reasonable doubt. We

review the instruction for plain error because Adler’s trial counsel did

not object to the district court’s proposed jury instruction on the good

faith defense. United States v. Olano, 507 U.S. 725, 731-32 (1993).

"[A] defendant in a criminal case cannot complain of error which

he himself has invited." United States v. Herrera, 23 F.3d 74, 75 (4th

Cir. 1994) (quotation omitted). Although the district court’s instruction differs slightly from the standard good faith instruction, that difference gives no support to Adler’s argument because both Adler’s

proposed instruction and the actual instruction contain the alleged

error that Adler complains of: the use of the word "accuracy." Adler’s

trial counsel did not even ask the court to change the word "accuracy"

to a word or phrase that he believes would have more properly conveyed the good faith defense in this case. 

Next, Adler contends that the district court committed plain error

by not informing the jury that the government must disprove good

faith beyond a reasonable doubt. "When confronted by a claim of an

erroneous jury instruction, we do not conduct a search for technical

error. Rather, our inquiry is whether, taken as a whole, the instruction

fairly states the controlling law." United States v. Cobb, 905 F.2d 784,

788-89 (4th Cir. 1990). Here, the district judge instructed the jury at

least eight separate times about the need to find each element of the

offense beyond a reasonable doubt. Because the judge charged the

"beyond a reasonable doubt" standard throughout his charge, we find

that taken as a whole the instruction fairly states the controlling law.

No plain error occurred. 

III.

Second, Adler argues that the district court erred when it enhanced

his sentence two points for obstruction of justice after finding that

6 UNITED STATES v. ADLER
Adler committed perjury on the witness stand. See U.S.S.G. § 3C1.1.

We review the district court’s findings for clear error. United States

v. Murray, 65 F.3d 1161, 1165 (4th Cir. 1995) ("Whether . . . [a

defendant] committed perjury is a factual determination made by the

sentencing court . . . [that must be] review[ed] for clear error."). 

The record supports the district court’s finding that Adler willfully

gave false testimony concerning a material matter during his trial.

Adler’s main defense at trial was that he had authorization to submit

inflated invoices. However, the evidence suggested — and the jury

believed — that Adler’s testimony was false. The purchase orders

required all modifications, which would certainly include the authorization to institute minimum billing requirements, to be in writing.

And Adler produced little support for his testimony that Downey

orally authorized Adler to overbill HABC. Adler instructed Dower to

inflate invoices. But not once did Adler tell Dower that HABC had

authorized the overbilling. Moreover, Adler testified that HABC

authorized him to submit the inflated invoices in the fall of 1996 as

a direct response to Adler’s complaint that ASG would be unable to

cover its costs without the preventive maintenance work. But the evidence showed that ASG submitted false invoices beginning at least as

early as January 1995, while ASG was still performing preventive

maintenance work. And Andrews’ testimony that invoices submitted

between 1992 and 1995 were usually overcharged supports the jury’s

verdict. In light of the evidence, the district court’s finding that "Mr.

Adler lied on the stand on a material matter beyond a reasonable

doubt" was not clear error. 

IV.

Third, Adler contends that the trial court abused its discretion by

instructing the jury that Downey was equally available as a witness

to both parties. We are unpersuaded. Adler knew as much about Downey’s potential testimony as the government did: the prosecution produced full copies of its interviews with Downey to the defense well

in advance of trial. Adler does not challenge the sufficiency of the

government’s production and apparently concedes that he and the

government stood on an equal footing in terms of the information

each possessed about Downey. See United States v. Abelis, 146 F.3d

73, 84 (2d Cir. 1998) (witness who refused to speak with defense

UNITED STATES v. ADLER 7
counsel was nonetheless adequately "available," because government

produced records of its conversations with the witness). Moreover,

Downey’s physical presence in the courtroom and availability for trial

testimony reinforces our conclusion that the trial court did not abuse

its discretion in finding that Downey was legally available to both

parties. 

V.

We next turn to Adler’s contention that the district judge erred by

failing to recuse himself sua sponte based on the judge’s prior

employment relationship with HABC. This contention has no merit.

The judge’s employment with HABC ended 18 years prior to the

commencement of the alleged fraud, and 26 years prior to the actual

commencement of trial. Adler does not allege that the district judge

knew anything about the facts or people involved in this case. Instead,

he contends that because the judge worked for HABC "when he was

rather young . . . a bond had surely developed between HABC and

the judge." In so alleging, Adler misconstrues the scope of 28 U.S.C.

§ 455. It is well settled that "litigants are entitled to a judge free of

personal bias, but not to a judge without any personal history before

appointment to the bench." Sierra Club v. Simkins Indus., Inc., 847

F.2d 1109, 1117 (4th Cir. 1988). 

VI.

Lastly, Adler contends that there was insufficient evidence to support a conviction on count two of the indictment. We have reviewed

the evidence with care and find it sufficient to support the jury’s verdict. 

VII.

"The purpose of § 1001 is clearly to protect the Government from

fraud and deceit." United States v. Fern, 696 F.2d 1269, 1273 (11th

Cir. 1983). During his eight day trial, Adler had every opportunity to

disprove the government’s strong evidence of ASG’s fraudulent billing practices. His basic complaint is that the jury did not find his

defense a credible one. Because we find no merit in Adler’s claims,

the judgment of the district court is 

AFFIRMED.

8 UNITED STATES v. ADLER