United States v. Phillip Hamilton , 701 F.3d 404 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
PHILLIP A. HAMILTON,
Defendant-Appellant.  No. 11-4847
ELECTRONIC PRIVACY INFORMATION
CENTER,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:11-cr-00013-HEH-1)
Argued: October 24, 2012
Decided: December 13, 2012
Before MOTZ and FLOYD, Circuit Judges, and
Catherine C. EAGLES, United States District Judge
for the Middle District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Floyd and Judge Eagles joined.
2 UNITED STATES v. HAMILTON
COUNSEL
ARGUED: Charles B. Lustig, SHUTTLEWORTH, RUL-
OFF, SWAIN, HADDAD & MORECOCK, PC, Virginia
Beach, Virginia, for Appellant. Richard Daniel Cooke,
OFFICE OF THE UNITED STATES ATTORNEY, Rich-
mond, Virginia, for Appellee. ON BRIEF: Lawrence H.
Woodward, Jr., SHUTTLEWORTH, RULOFF, SWAIN,
HADDAD & MORECOCK, PC, Virginia Beach, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Alexandria, Virginia, Robert J. Seidel, Jr., Assistant United
States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee. Marc Roten-
berg, Alan Butler, David Jacobs, ELECTRONIC PRIVACY
INFORMATION CENTER, Washington, D.C., for Amicus
Supporting Appellant.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A jury convicted Phillip A. Hamilton of federal program
bribery and extortion under color of official right. The convic-
tions arose from charges that, while a state legislator, Hamil-
ton secured state funding for a public university in exchange
for employment by the university. Hamilton appeals, chal-
lenging his convictions and sentence. For the reasons that fol-
low, we affirm.
I.
From 1988 to 2009, Hamilton served as a member of the
Virginia House of Delegates. Ultimately he became Vice
Chairman of the Appropriations Committee, which is respon-
sible for the state budget. While serving as a legislator, he
also worked as an administrator and then as a part-time con-
sultant for the Newport News public schools system.
UNITED STATES v. HAMILTON 3
In August 2006, Hamilton arranged to meet with officials
from Old Dominion University, a public university located in
Norfolk, Virginia, to discuss state funding for a new Center
for Teacher Quality and Educational Leadership that Old
Dominion wanted to establish. Immediately prior to the meet-
ing, Hamilton and his wife exchanged emails discussing their
financial difficulties, and hope that the new Center would
employ Hamilton. In their email exchange, Hamilton told his
wife that he would "shoot for" a salary of $6,000 per month.
Those emails, like all subsequent emails at issue in this case,
were sent to or from Hamilton’s public school workplace
computer, through his work email account.
The Dean of the College of Education at Old Dominion,
Dr. William Graves, testified that, after the initial meeting
with Hamilton, Old Dominion President Roseann Runte
directed the Dean to hire Hamilton, saying, "[t]hat man wants
a job, make him director or something." Hamilton emailed his
wife that the meeting "went well" and that he had "reinforced"
the idea that "if and when an employment opportunity became
available," he would like to be compensated "in the area of
$6,000 per month." Hamilton also emailed Dean Graves and,
after advising the Dean to "keep this under the radar,"
explained how best to obtain state funding for the Center. In
this email, Hamilton further stated that, if funding for the
Center was not included in the Governor’s budget, "on my
own, I will initiate legislation and/or a budget amendment to
create such a center."
Four months later, on December 21, Hamilton emailed
President Runte, reminding her of his interest in employment
with the Center. The same day, Hamilton emailed David
Blackburn, Director of Old Dominion’s Program for Research
and Evaluation in Public Schools, explaining that, because the
Governor’s budget did not include money for the Center,
Hamilton had proposed a budget amendment to secure $1 mil-
lion for the Center. Hamilton added: "My City retirement is
reduced in May 2007. I will need to supplement my current
4 UNITED STATES v. HAMILTON
[public school] income . . . by at least an equal amount
. . . ." Director Blackburn replied: "Thanks for passing on
budget request and specific salary need[.] I believe GA [Gen-
eral Assembly] will fund and you will be on board[.]"
Soon thereafter, Hamilton introduced legislation for the
first of two $500,000 appropriations for the Center, both of
which ultimately passed. Director Blackburn emailed Hamil-
ton: "Are congratulations in order? Are you our new direc-
tor?" In response, Hamilton reiterated his salary needs, noting
"[o]f course, more than that is always appreciated." Director
Blackburn then posted an announcement for the Center Direc-
tor position, but did not interview any of the three applicants
for the position. Instead, Hamilton was selected as Center
Director, at a salary of $40,000 per year, even though he had
not filed an application for the position. Dean Graves testified
that, but for Hamilton’s legislative assistance, the Center
would not have offered Hamilton the position. Hamilton later
suggested "flowing the money" for his Center employment
through the school system payroll and generally concealing
his position as Director of the Center. Hamilton explained at
one point in an email to Blackburn, "looks like they are dig-
ging."
On the basis of the above evidence, the Government
charged Hamilton with bribery concerning federal program
funds in violation of 18 U.S.C. § 666(a)(1)(B) (2006), and
extortion under color of official right in violation of 18 U.S.C.
§ 1951 (2006). The jury convicted him of both crimes. The
district court then sentenced him to 114 months’ imprison-
ment. Hamilton noted a timely appeal.
II.
Hamilton’s most substantial appellate argument challenges
the district court’s admission into evidence of emails he sent
to and received from his wife. He maintains that the admis-
sion of these emails violated the marital communications priv-
UNITED STATES v. HAMILTON 5
ilege. We review evidentiary rulings, including rulings on
privilege, for abuse of discretion, see NLRB v. Interbake
Foods, LLC, 637 F.3d 492, 501 (4th Cir. 2011), factual find-
ings as to whether a privilege applies for clear error, and the
application of legal principles de novo. In re Grand Jury Sub-
poena, 341 F.3d 331, 334 (4th Cir. 2003).
"Communications between . . . spouses, privately made, are
generally assumed to have been intended to be confidential,
and hence they are privileged." Wolfle v. United States, 291
U.S. 7, 14 (1934); see also United States v. Parker, 834 F.2d
408, 411 (4th Cir. 1987) (Powell, J.). This is so because "mar-
ital confidences" are "regarded as so essential to the preserva-
tion of the marriage relationship as to outweigh the
disadvantages to the administration of justice which the privi-
lege entails." Wolfle, 291 U.S. at 14. But, of course, to be cov-
ered by the privilege, a communication between spouses must
be confidential; "voluntary disclosure" of a communication
waives the privilege. Id. at 14-15. The Government maintains
that Hamilton waived the marital communications privilege
by communicating with his wife on his workplace computer,
through his work email account, and subsequently failing to
safeguard the emails.
Wolfle, the leading marital communications privilege case
to have reached the Supreme Court, provides an analogy use-
ful in resolving Hamilton’s privilege claim. In Wolfle, the
Court held that a defendant’s communication with his wife
did not come "within the privilege because of [his] voluntary
disclosure" of the communication "to a third person, his ste-
nographer." 291 U.S. at 14. The Court explained that,
"[n]ormally husband and wife may conveniently communi-
cate without stenographic aid, and the privilege of holding
their confidences immune from proof in court may be reason-
ably enjoyed and preserved without embracing within it the
testimony of third persons to whom such communications
have been voluntarily revealed." Id. at 16-17. Because "[t]he
privilege suppresses relevant testimony," it "should be
6 UNITED STATES v. HAMILTON
allowed only when it is plain that marital confidence cannot
otherwise reasonably be preserved," and "[n]othing in this
case suggests any such necessity." Id. at 17.
In Hamilton’s case, email has become the modern stenogra-
pher. Like the communications to the stenographer in Wol-
fle’s time, emails today, "in common experience," are
confidential. See id. at 15; see also ABA Comm. on Ethics &
Prof’l Responsibility, Formal Op. 413 (1999) (noting that
email "pose[s] no greater risk of interception or disclosure
than other modes of communication commonly relied upon as
having a reasonable expectation of privacy" and so there is
generally "a reasonable expectation of privacy in its use").
But just as spouses can "conveniently communicate with-
out" use of a stenographer, they can also "conveniently com-
municate without" using a work email account on an office
computer. See Wolfle, 291 U.S. at 16. Therefore, as in Wolfle,
it is hardly "plain that marital confidence cannot . . . reason-
ably be preserved" without according the privilege to the
spousal communications at issue here. See id. at 17. Accord-
ingly, that one may generally have a reasonable expectation
of privacy in email, at least before a policy is in place indicat-
ing otherwise, does not end our inquiry.
Hamilton ignores this guidance from Wolfle and focuses
solely on the fact that, in 2006, when he used his workplace
email system to send the emails for which he claims privilege,
his public school employer had no computer usage policy.
This is true, but the school system adopted a computer policy
well prior to the 2009 investigation of, and 2011 charges
against, Hamilton. The computer policy, as revised in 2008,
expressly provides that users have "no expectation of privacy
in their use of the Computer System" and "[a]ll information
created, sent[,] received, accessed, or stored in the . . . Com-
puter System is subject to inspection and monitoring at any
time." Moreover, it is undisputed that forms accepting this
policy were electronically signed in Hamilton’s name, and
UNITED STATES v. HAMILTON 7
that Hamilton had to acknowledge the policy by pressing a
key to proceed to the next step of the log-on process, every
time he logged onto his work computer. The district court
concluded that these facts established that Hamilton had
waived any privilege he had in the emails.
Hamilton contends that he did not waive the privilege
because he "had no reason to believe, at the time he sent and
received the emails, that they were not privileged," and he
could not waive his privilege retroactively. Amicus, the Elec-
tronic Privacy Information Center, adds that it seems "ex-
treme" to "require an employee to scan all archived e-mails
and remove any that are personal and confidential every time
the workplace use policy changes," when "employees may not
even be aware that archived e-mails exist or know where to
find them." EPIC Br. at 18.
In an era in which email plays a ubiquitous role in daily
communications, these arguments caution against lightly find-
ing waiver of marital privilege by email usage. But the district
court found that Hamilton did not take any steps to protect the
emails in question, even after he was on notice of his employ-
er’s policy permitting inspection of emails stored on the sys-
tem at the employer’s discretion. As outlined above, the
record provides ample support for these factual findings.
In similar circumstances, we have held that a defendant did
not have an "objectively reasonable" belief in the privacy of
files on an office computer after his employer’s policy put
him "on notice" that "it would be overseeing his Internet use."
United States v. Simons, 206 F.3d 392, 398 (4th Cir. 2000);
see also In re Asia Global Crossing, Ltd., 322 B.R. 247, 257
(Bankr. S.D.N.Y. 2005) (listing employer’s maintenance of
relevant usage policy, monitoring of employee email, third-
party right of access to email, and employee’s awareness of
the policy as key factors suggesting no expectation of pri-
vacy). Our sister circuits have also made clear that a party
waives the marital communications privilege when he "fails
8 UNITED STATES v. HAMILTON
to take adequate precautions to maintain . . . confidentiality."
See SEC v. Lavin, 111 F.3d 921, 930 (D.C. Cir. 1997); see
also United States v. De La Jara, 973 F.2d 746, 749-50 (9th
Cir. 1992).
Thus, the district court’s conclusion that the emails were
not subject to the marital communications privilege consti-
tutes no abuse of discretion. Rather, that conclusion accords
with the admonition in Wolfle against freely extending the
privilege to communications outside of which marital confi-
dences can "otherwise reasonably be preserved," 291 U.S. at
17, and with the principle that one who is on notice that the
allegedly privileged material is subject to search may waive
the privilege when he makes no efforts to protect it.
III.
We can more quickly resolve Hamilton’s remaining con-
tentions.
A.
First, Hamilton challenges the sufficiency of the evidence.
We uphold a jury verdict based on substantial, even if circum-
stantial, evidence, viewing the evidence in the light most
favorable to the Government. United States v. Stewart, 256
F.3d 231, 249 (4th Cir. 2001). As Hamilton acknowledges,
"[w]hen a defendant challenges the sufficiency of a jury’s
guilty verdict . . . he bears a heavy burden." Hamilton has not
met that burden.
To establish the corrupt intent necessary for the convictions
at issue here, the Government had to present evidence of "an
exchange of money (or gifts) for specific official action."
United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir.
1998). The Government did this, offering a broad range of
evidence, admittedly much of it circumstantial, indicating that
Hamilton used his position as a state legislator to obtain state
UNITED STATES v. HAMILTON 9
funds for the Center, in exchange for a paid position at the
Center. Hamilton may be correct that "the Government pro-
duced no email, or witness, to say that Hamilton communi-
cated to any one that he would not support funding for the
research center unless he received a job in return." But intent
can be implied—and it is the jury’s role to make such factual
inferences. See United States v. Engle, 676 F.3d 405, 418 (4th
Cir. 2012). Thus, we find Hamilton’s sufficiency of the evi-
dence argument meritless.
B.
Hamilton next argues that the district court committed
reversible error in failing to instruct the jury on the difference
between a bribe, which requires intent to engage in a quid pro
quo, and a gratuity, which does not require corrupt intent, but
only a "payment for or because of some official act." See Jen-
nings, 160 F.3d at 1013 (internal quotation marks omitted).
We review asserted jury instruction errors for abuse of discre-
tion. United States v. Shrader, 675 F.3d 300, 308 (4th Cir.
2012). To demonstrate such abuse, Hamilton must establish
that his proposed instruction was "(1) correct; (2) not substan-
tially covered by the court’s charge; and (3) deal[t] with some
point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant’s abil-
ity to conduct his defense." Id.In this case, the district court did not abuse its discretion in
refusing to instruct the jury as to a gratuity. Hamilton’s sug-
gestion that this refusal could have caused confusion fails, for
he concedes that the Government did not pursue a gratuity
theory. The court properly instructed the jury on the specific
requirements under § 666, including corrupt intent, which
might not be required for gratuity. Thus, Hamilton can point
to no confusion the jury may have faced as to the intent
requirements of § 666 and his proposed instruction was "sub-
stantially covered by the court’s charge."
10 UNITED STATES v. HAMILTON
Nor can Hamilton show that failure to give the requested
instruction "seriously impaired" his defense. See Shrader, 675
F.3d at 308. Although we have not yet ruled as to whether
§ 666 covers gratuities as well as bribes, see Jennings, 160
F.3d at 1015, even if the statute does cover gratuities, failure
to instruct on gratuity could not have prejudiced Hamilton in
any way. Section 666 provides no less severe sentence for
gratuities; thus instructing the jury as to gratuity would only
have provided an additional ground on which to convict Ham-
ilton. See 18 U.S.C. § 666.
C.
Finally, Hamilton asserts two reasons why he believes the
district court erred in its application of a fourteen-level sen-
tencing enhancement. We review legal interpretations of the
Sentencing Guidelines de novo. United States v. McKenzie-
Gude, 671 F.3d 452, 462-63 (4th Cir. 2011). But when a
defendant does not raise an argument in the district court, we
review only for plain error. United States v. Strieper, 666 F.3d
288, 295 (4th Cir. 2012). "To establish plain error, the appeal-
ing party must show that an error (1) was made, (2) is plain
(i.e., clear or obvious), and (3) affects substantial rights."
United States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010).
Moreover, we "may exercise . . . discretion to correct the error
only if it seriously affects the fairness, integrity or public rep-
utation of judicial proceedings." Id. (internal quotation marks
omitted).
Hamilton initially argues, as he did in the district court, that
in determining the proper sentencing enhancement, the court
should have relied on the value of the payment he received—
approximately $87,000—rather than the value of the benefit
Old Dominion obtained. Yet Hamilton admits that the Sen-
tencing Guidelines require that the enhancement be based on
the greater of the payment received or the benefit obtained –-
and there is no dispute the benefit to Old Dominion was
greater than the payment Hamilton received. See U.S. Sen-
UNITED STATES v. HAMILTON 11
tencing Guidelines Manual § 2C1.1(b)(2) (2011). Accord-
ingly, this argument fails.
Hamilton raises, for the first time on appeal, the additional
argument that, in calculating his sentencing enhancement, the
district court should have determined the benefit to Old
Dominion based on the net, rather than the gross, value of the
state appropriation Old Dominion obtained. See U.S.S.G.
§ 2C1.1 cmt. But, even if the district court did err in calculat-
ing the enhancement based on the full value of the first
$500,000 payment that Old Dominion received, that error
does not provide a basis for reversal on plain error review.
To succeed on a plain error argument, a defendant must
demonstrate that any error affected his substantial rights,
which here required Hamilton to demonstrate that the net ben-
efit received by Old Dominion was $400,000 or less and so
merited a lesser sentencing enhancement. See U.S.S.G.
§ 2B1.1(b)(1). Hamilton made no such showing. Indeed, in
imposing the fourteen-level sentencing enhancement, the dis-
trict court considered only the first $500,000 payment to Old
Dominion. But the University actually received, and the dis-
trict court could have considered, two $500,000 payments.
Additionally, Hamilton has not shown that the district court
plainly erred if it assumed the entire $500,000 Old Dominion
received constituted the net benefit, given that Hamilton
offered no evidence of some lesser portion of the $500,000
that was analogous to "profit." Cf. United States v. Quinn, 359
F.3d 666, 679-80 (4th Cir. 2004) (involving contracts for for-
profit companies).
In sum, Hamilton has not demonstrated that the alleged
error was plain or affected his substantial rights.
IV.
Because we find each of Hamilton’s claims on appeal to be
without merit, we affirm the judgment of the district court.
AFFIRMED