UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. GEORGE LOWE, Defendant - Appellant. No. 23-2114 (D.C. No. 1:17-CR-0 3338-JMC-SCY-4) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BACHARACH , BALDOCK , and KELLY , Circuit Judges. **

________________ _________________ Defendant-Appellant George Lowe appeals from the dist rict court’s denial of his motion to dismiss an indictment as untim ely and the denial of his request for an evidentiary hearing. Aplt. App. at 193, 222–32. Indicted on November 28, 2017, along with three codefendants, Mr. Lowe wa s charged with one count of conspiracy to defraud the government with respect to claims, 18 U.S.C. § 286; one count of conspiracy to commit wire fraud, 18 U.S.C. §§ 1343, 1349; and eighteen counts of

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### April 4, 2024 Christopher M. Wolpert Clerk of Court Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 12 false, fictitious, or fraudu lent claims, 18 U.S.C. § 287, and aiding and abetting the same, 18 U.S.C. § 2(a). Aplt. App. 22, 50–56, 61–64. Mr. Lowe entered a conditional guilty plea as to the first count . Id. at 238–52. The district court sentenced Mr. Lowe to the le sser of one day’s imprisonmen t or time served and three years’ supervised release a nd ordered him to pay over $1.2 million in restitution. Id. at 270–71, 274. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Background The alleged fraudulent activ ity in this case concer ned funding for the Big Crow Program Office (“BCPO”), a U.S. Ar my warfare assessment program based at Kirtland Air Force Base. Aplt. App. 22 . The BCPO was originally funded by the Army, but after funding diminished, it rece ived funds on a reimbursement basis and through supplemental Congressional appropria tions. Id. at 22–23. The indictment alleged that beginning around 2004 and co ntinuing through 2009 , codefendant Milton Boutte, BCPO Director, conspired with Mr. Lo we and others to ch arge thousands of dollars for Mr. Lowe’s lobbyi ng efforts on behalf of the BCPO, even though it had no funding or authorization fo r lobbying. Id. at 23. Mr. Lowe agreed to lobby government officials for BCPO funding, initially charging $15,000 per month and later demanding higher amount s. Id. at 31. To pay Mr. Lowe, other codefendants fraudulently obtained contracts under the Small Business Act Business Development Progr am on behalf of two business entities owned by codefendants (Miratek Corporation and Vartek, LLC). Id. at 23. Although Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 23 the funds were allocated to each business through the program to provide technical support to the BCPO, codefe ndants improperly diverted f unds to pay for Mr. Lowe’s unauthorized lobbying, representing that Mr . Lowe was a “project manager” of each business entity. Id. at 30–33, 36–37, 48 –49. Mr. Lowe submitted invoices for fraudulent hours of work to thes e entities as part of the cons piracy with codefendants. Id. at 33, 49, 241–42. After being indicted in November 2017, Mr. Lowe filed a motion to dismiss the indictment for pre-indictment delay. Id. at 68–85. Mr. Lowe argued that under the Due Process Clause he was prejudiced by the governme nt’s eight-year delay in bringing charges because: (1 ) he could not subpoena memb ers of Congress and their staffs to “substantiate hi s legitimate and lawful act ivity” as many members were either dead or no longer in office; (2) he could not access certai n financial documents to show that he only received $1.2 m illion for lobbying, not the amount alleged by the government (over $3 million); and (3) criti cal witnesses were no longer available because of the passage of ti me. Id. at 68–72. He also requested an evidentiary hearing to show that the government’s de lay in bringing charges was unnecessary and was instead “for the purpose of benefitti ng the government.” Id. at 83–85. Finally, Mr. Lowe made arguments regarding the stat ute of limitations, id . at 75–78, but he does not raise them here, conceding that his alleged criminal conduct falls within the Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 34 statute of limitations. 1 On August 21, 2018, the district cour t denied Mr. Lowe’s motion to dismiss the indictment. Id. at 232. First, while the district court assumed without deciding that Mr. Lowe could show act ual prejudice, it found that his Due Process claim failed because he could not “establish that the government intentionally or recklessly delayed bringing the indictment [.]” Id. at 228. Second, the district court denied Mr. Lowe’s request for an ev identiary hearing because it was based on “bare-bones assertions” that the government had “no apparent reason” to wait so long to bring an indictment and failed to make specific or nonconjectural allegations about what facts an evidentiary hearing would uncover. Id . at 229–30. Finally, the district court rejected Mr. Lowe’s statute of li mitations arguments. Id. at 222–26.

Discussion We review a district court’s denial of a motion to dismiss for pre-indictment delay for abuse of discretion. United Stat es v. Garcia, 74 F.4t h 1073, 1094–95 (10th Cir. 2023) (omitting subsequent denials of certiorari). We also review the district court’s denial of a request fo r an evidentiary hearing for abuse of discretion. United

1 In his “Statement of the Issues,” Mr . Lowe raises the question of whether 18 U.S.C. § 3287 and the 2001 Congressional au thorization of use of military force extend the statute of limita tions for fraud “without limitati on[.]” Aplt. Br. at 2–3. However, later in his brief, Mr. Lowe stated he “does not contest the district court’s reasoning that the statute of limitation for th e crimes alleged agai nst him were tolled pursuant to 18 U.S.C. § 3287 and a Nove mber 28, 2017 indi ctment would be otherwise timely.” Aplt. Br . at 7. Therefore, we do not consider this issue. Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 45 States v. Pearl, 324 F.3d 12 10, 1215 (10th Cir. 2003). A. Preindictment Delay To prove a Due Process violation based on preindictment de lay, the defendant must show (1) actual prejudice resulting fr om the delay and (2) that the government purposefully designed the delay to gain a tactical advantag e or harass the defendant. Garcia, 74 F.4th at 1096. The first factor, actual prejudice, “is generally a necessary but not sufficient element of a due process claim, and [] the due process inquiry must consider the reasons for the delay as well[. ]” United States v. Lovasco, 431 U.S. 783, 790 (1977); United States v. Koch, 4 44 F. App’x 293, 297 (10th Cir. 2011). Upon the defendant’s prima facie showing of fact that a violation occurred, the burden shifts to the government to pres ent evidence that the delay was properly motivated and justified. Ga rcia, 74 F.4th at 1096. The defendant bears the ultimate burden of showing the Due Process violation by a preponderance of the evidence. Id. After assuming without deciding that Mr. Lowe could show actual prejudice, the district court denied Mr. Lowe’s Du e Process claim becau se he failed to demonstrate that, under the second factor, the government purposefully or recklessly delayed in bringing the indi ctment. Aplt. App. 228. 2 We agree that Mr. Lowe failed

2 The district court’s order stated that th e second factor could be satisfied if the prosecutorial delay was either intentional or “incurred in reckless disregard of circumstances, known to the prosecution, sugge sting that there existed an appreciable risk that delay would impair the ability to mount an effective de fense.” Aplt. App. 227 (quoting Lovasco, 431 U.S. at 795 n.17 ). The Supreme Court has seemingly approved the reckless standard, but this circ uit has declined to explicitly adopt it. See Garcia, 74 F.4th at 1097. It is of no mo ment in this case because the district Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 56 to make a prima facie showing of purposefu l delay, consequently , we do not consider whether Mr. Lowe has shown actual prejudice. Mr. Lowe cannot demonstrate that th e government acted intentionally in bringing about the delay. In fact, Mr. Lo we’s brief makes little argument regarding the second factor. Aplt. Br. at 9–11. Mr . Lowe’s brief states that “investigative agents knew that the delay with an indictment woul d significantly incr ease the risk to Mr. Lowe in his ability to mo unt an effective defense” a nd that “the government . . . recklessly paid no attention to the clock[.]” Id. at 11. But he does not support these contentions with any facts from the record or with legal au thority. See Fed. R. App. P. 28(a)(8)(A) (appellant’s brief must cont ain “contentions and the reasons for them, with citations to the authorities and part s of the record on which the appellant relies”). 3 Although Mr. Lowe bears the initial burde n of demonstrating intentional delay, the government offered specific reasons for its delay before the district court — primarily, that the allegations in the indictment were co mplex, involving a fraudulent scheme with multiple defenda nts and business entities, a nd that the acquisition of

court concluded that the defendant failed to show preindictment delay under any standard — as do we. 3 Given the lack of factual or legal development, we have discretion to consider Mr. Lowe’s argument regarding the second factor waived because it “consist[s] of little more than generalized and conclusory statements” and “makes no attempt to engage with the district court’ s reasoning[.]” United States v. Walker, 918 F.3d 1134, 1152–53 (10th Cir. 201 9); see Fed. R. App. P. 28(a)(8)(A). Although the district court denied Mr. Lo we’s Due Process claim sole ly on the second factor, Mr. Lowe’s brief does not engage with the district court’s reasoning. Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 67 documents from multiple government and gra nd jury subpoenas took time. See Aplt. App. 230–31. Mr. Lowe offers no eviden ce or argument to rebut the government’s reasonable explanation, beyo nd suggesting that government agents (not specifically named) knew that the passage of time woul d affect Mr. Lowe’s defense. This does not suffice to demonstrate that the district court abused its di scretion in evaluating this issue. B. Request for an Evidentiary Hearing “[S]peculation . . . is an insuffici ent basis for requiri ng an evidentiary hearing.” United States v. Sutton, 767 F. 2d 726, 729 (10th Ci r. 1985); see also United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 1998) (“Evidentiary hearings are warranted only when the allegations . . . are sufficiently defi nite, specific and non-conjectural and detailed e nough to enable the court to conclude that a substantial claim is presented and that th ere are disputed issues of ma terial fact which will affect the outcome of the motion.”). At various points throughout his briefing, Mr. Lowe contends that an evidentiary hearing is necessary to flesh out evidence showing how he was prejudiced and that the government’s delay was intentional. Aplt. Br. at 8, 10–11; Aplt. Reply Br. at 6. But he fails to point out what specific evidence would tend to support either actual prejudice or in tentional/reckless delay. Mr. Lowe’s argument is wholly speculative, and we fi nd no abuse of discretion in the district Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 78 court’s decision to deny an evidentiary hearing.

Entered for the Court

Paul J. Kelly, Jr Circuit Judge Appellate Case: 23-2114 Document: 010111026780 Date Filed: 04/04/2024 Page: 8