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-03338-JMC-SCY-4) 

(D. N.M.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

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

_________________________________ 

Defendant-Appellant George Lowe appeals from the district court’s denial of 

his motion to dismiss an indictment as untimely 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 was 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* This order and judgment is not binding precedent, except under the doctrines 

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially 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

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false, fictitious, or fraudulent 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 lesser of one day’s imprisonment or time served and three 

years’ supervised release and 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 activity in this case concerned funding for the Big 

Crow Program Office (“BCPO”), a U.S. Army 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 received funds on a reimbursement basis and 

through supplemental Congressional appropriations. Id. at 22–23. The indictment 

alleged that beginning around 2004 and continuing through 2009, codefendant Milton 

Boutte, BCPO Director, conspired with Mr. Lowe and others to charge thousands of 

dollars for Mr. Lowe’s lobbying efforts on behalf of the BCPO, even though it had no 

funding or authorization for lobbying. Id. at 23. 

 Mr. Lowe agreed to lobby government officials for BCPO funding, initially 

charging $15,000 per month and later demanding higher amounts. Id. at 31. To pay 

Mr. Lowe, other codefendants fraudulently obtained contracts under the Small 

Business Act Business Development Program on behalf of two business entities 

owned by codefendants (Miratek Corporation and Vartek, LLC). Id. at 23. Although 

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the funds were allocated to each business through the program to provide technical 

support to the BCPO, codefendants improperly diverted funds 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 these entities as part of the conspiracy 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 government’s eight-year delay in 

bringing charges because: (1) he could not subpoena members of Congress and their 

staffs to “substantiate his legitimate and lawful activity” as many members were 

either dead or no longer in office; (2) he could not access certain financial documents 

to show that he only received $1.2 million for lobbying, not the amount alleged by 

the government (over $3 million); and (3) critical witnesses were no longer available 

because of the passage of time. Id. at 68–72. He also requested an evidentiary 

hearing to show that the government’s delay in bringing charges was unnecessary and 

was instead “for the purpose of benefitting the government.” Id. at 83–85. Finally, 

Mr. Lowe made arguments regarding the statute of limitations, id. at 75–78, but he 

does not raise them here, conceding that his alleged criminal conduct falls within the 

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statute of limitations.1

 On August 21, 2018, the district court 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 actual 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 evidentiary 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 limitations 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 States v. Garcia, 74 F.4th 1073, 1094–95 (10th 

Cir. 2023) (omitting subsequent denials of certiorari). We also review the district 

court’s denial of a request for 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 authorization of use of military force 

extend the statute of limitations for fraud “without limitation[.]” 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 the crimes alleged against him were tolled 

pursuant to 18 U.S.C. § 3287 and a November 28, 2017 indictment would be 

otherwise timely.” Aplt. Br. at 7. Therefore, we do not consider this issue. 

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States v. Pearl, 324 F.3d 1210, 1215 (10th Cir. 2003). 

A. Preindictment Delay 

 To prove a Due Process violation based on preindictment delay, the defendant 

must show (1) actual prejudice resulting from the delay and (2) that the government 

purposefully designed the delay to gain a tactical advantage 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, 444 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 present evidence that the delay was properly 

motivated and justified. Garcia, 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 Due Process claim because he failed to 

demonstrate that, under the second factor, the government purposefully or recklessly 

delayed in bringing the indictment. Aplt. App. 228.2

 We agree that Mr. Lowe failed 

2

 The district court’s order stated that the second factor could be satisfied if the 

prosecutorial delay was either intentional or “incurred in reckless disregard of 

circumstances, known to the prosecution, suggesting that there existed an appreciable 

risk that delay would impair the ability to mount an effective defense.” Aplt. App. 

227 (quoting Lovasco, 431 U.S. at 795 n.17). The Supreme Court has seemingly 

approved the reckless standard, but this circuit has declined to explicitly adopt it. 

See Garcia, 74 F.4th at 1097. It is of no moment in this case because the district 

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to make a prima facie showing of purposeful delay, consequently, we do not consider 

whether Mr. Lowe has shown actual prejudice. 

 Mr. Lowe cannot demonstrate that the government acted intentionally in 

bringing about the delay. In fact, Mr. Lowe’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 would significantly increase the risk to 

Mr. Lowe in his ability to mount an effective defense” and 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 authority. See Fed. R. App. 

P. 28(a)(8)(A) (appellant’s brief must contain “contentions and the reasons for them, 

with citations to the authorities and parts of the record on which the appellant 

relies”).3

 Although Mr. Lowe bears the initial burden of demonstrating intentional delay, 

the government offered specific reasons for its delay before the district court — 

primarily, that the allegations in the indictment were complex, involving a fraudulent 

scheme with multiple defendants and business entities, and 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. 2019); see Fed. R. App. P. 28(a)(8)(A). Although the 

district court denied Mr. Lowe’s Due Process claim solely on the second factor, Mr. 

Lowe’s brief does not engage with the district court’s reasoning. 

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documents from multiple government and grand jury subpoenas took time. See Aplt. 

App. 230–31. Mr. Lowe offers no evidence or argument to rebut the government’s 

reasonable explanation, beyond suggesting that government agents (not specifically 

named) knew that the passage of time would affect Mr. Lowe’s defense. This does 

not suffice to demonstrate that the district court abused its discretion in evaluating 

this issue. 

B. Request for an Evidentiary Hearing 

 “[S]peculation . . . is an insufficient basis for requiring an evidentiary 

hearing.” United States v. Sutton, 767 F.2d 726, 729 (10th Cir. 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 definite, specific and 

non-conjectural and detailed enough to enable the court to conclude that a substantial 

claim is presented and that there are disputed issues of material 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 intentional/reckless delay. Mr. Lowe’s 

argument is wholly speculative, and we find no abuse of discretion in the district 

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court’s decision to deny an evidentiary hearing. 

Entered for the Court 

Paul J. Kelly, Jr 

Circuit Judge 

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