United States v. Whitfield ( 2010 )

REVISED January 4, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 07-60748 December 11, 2009
Charles R. Fulbruge III
Clerk
UNITED STATES of AMERICA
Plaintiff-Appellee
v.
JOHN H. WHITFIELD; PAUL S. MINOR; WALTER W. TEEL
Defendants-Appellants
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, BENAVIDES, and HAYNES, Circuit Judges.
GARWOOD, Circuit Judge:
Defendants-appellants, attorney Paul Minor and former Mississippi state
judges John Whitfield and Walter (“Wes”) Teel, were charged with participating
in two separate bribery schemes in which Minor arranged, guaranteed, and
eventually paid off loans for Whitfield and Teel, allegedly in order to corruptly
influence the outcome of cases Minor filed in their courts. A jury found all three
appellants guilty of conspiracy in violation of 18 U.S.C. § 371; mail, wire, and
honest services fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2; and
federal program bribery in violation of 18 U.S.C. § 666. Additionally, Minor was
convicted of racketeering in violation of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1962. Appellants appeal their convictions
and sentences on numerous grounds. For the following reasons, we VACATE all
the convictions related to federal program bribery under 18 U.S.C. § 666,
including the conviction of Minor and Teel for conspiracy to violate section 666.
We AFFIRM all other convictions, and we REMAND for resentencing as to all
appellants in accordance with this opinion.
FACTS
This case concerns two separate bribery schemes, at the center of which
lay Paul Minor, formerly a successful trial attorney in Mississippi. Minor had
a professional, if not personal, relationship with appellants John Whitfield and
Wes Teel prior to the events giving rise to this prosecution. Acting as guarantor,
Minor arranged for Peoples Bank in Biloxi, Mississippi to loan Whitfield and
Teel substantial amounts of money, purportedly in connection with each of their
campaigns for state judicial office. Although the structure of the loan
transactions was similar, neither Whitfield nor Teel had any knowledge of
Minor’s dealings with the other. As the two bribery schemes were thus distinct,
we relate the facts surrounding each separately.
I. Whitfield Scheme
In the fall of 1998, Whitfield was in the midst of a reelection campaign to
retain his position as circuit judge on the Second Circuit Court of Mississippi.
Minor arranged for The Peoples Bank in Biloxi, Mississippi, with which he had
substantial deposits, to grant Whitfield two loans with Minor serving as
guarantor. Peoples Bank sought no collateral to secure the loans, but rather, in
the words of the loan officer that handled the transactions, relied “simply on the
strength of Mr. Minor’s financial ability” to ensure repayment. On October 12,
1998, Peoples Bank loaned Whitfield $40,000 for “campaign funds,” which he
deposited into his campaign account. Later, after Whitfield’s successful
2
reelection, Peoples Bank granted Whitfield another loan for $100,000 on
November 19, 1998, the purpose of which was described in the loan documents
as a “down payment on home.” Whitfield deposited the proceeds of this loan in
the bank account of his then-girlfriend, who used the majority of the money to
place a down-payment on a house for the two of them. Whitfield and his
girlfriend spent the remainder of the loan proceeds to purchase home
furnishings and to pay credit card bills.1 Whitfield never listed either loan on his
campaign disclosure forms, nor did he report subsequent loan repayments made
by Minor on the annual statements of economic interest that he was required to
file as a judge.2
At trial, the Government contended that, as Whitfield had little or no
money at the time, he accepted the loans never intending to pay them back
himself. Indeed, by the time that the loans were eventually repaid at the
insistence of bank examiners in 2002, Whitfield had only contributed a total of
approximately $13,200 towards repayment of his loans and the interest thereon,
$5,000 of which came from the campaign account originally funded by the
$40,000 loan and approximately $5,650 of which was only made possible by a
timely and unexplained cash deposit made to his personal checking account after
his check to Peoples Bank had bounced. In contrast, over the nearly four-year
period in which the loans were outstanding, Minor, either directly or indirectly,
paid a total of approximately $178,600 in principal and interest on the loans.
1
In January of 1999, Whitfield perjured himself while testifying in a divorce
proceeding involving his then-wife, claiming that he was the sole guarantor on the $40,000
loan and that he did not contribute any money towards the purchase of the home shared by
him and his girlfriend.
2
Under Mississippi law, Whitfield and Teel were required to file an annual
statement of economic interest disclosing any private sources of income in excess of $2,500,
including cash and loan forgiveness.
3
At Minor’s request, the loans were structured as renewable short-term
“balloon” loans, whereby every six months the accumulated interest became due
and the loan principal would either have to be renewed or paid in full. Under
the Government’s theory of the case, this arrangement allowed Minor to keep
Whitfield on a string while Minor held the bank at bay. Every six months when
the loans became due, bank officials would attempt to notify Whitfield by mail
and telephone, yet Whitfield was unresponsive and largely ignored his
obligation. As a result, the bank would be forced to contact Minor, who, instead
of paying directly by check, would cash a check and renew the loans by making
the necessary payments in cash.3 Whitfield would occasionally make small
payments with his own money, but, as noted above, the vast majority of the
payments were made by Minor.
Meanwhile, shortly after Minor arranged the loans for Whitfield in the fall
of 1998, Minor’s law firm filed a potentially lucrative personal injury suit, Marks
v. Diamond Offshore Management Co.,4 in the Second Circuit Court. Marks was
injured while working on an off-shore oil rig, and he hired Minor & Associates
on a contingent-fee basis to represent him in the ensuing Jones Act suit against
his employer. Although plaintiffs seeking personal injury damages generally
prefer to try their cases before a jury, Minor’s firm made the unusual request for
a bench trial. Normally, the Second Circuit Court followed a procedure whereby
cases were randomly assigned among the four Second Circuit judges after the
defendant had filed an answer. However, immediately upon filing their
complaint, Minor’s firm circumvented this process by filing a motion with Judge
3
On the stub of one such check for $7,000, Minor’s office manager noted its purpose
as “loan interest for J.W.”
4
2000 WL 35444564 (Miss. Cir. Sep. 25, 2000).
4
Whitfield seeking an expedited hearing to set a trial date, purportedly so that
Marks could obtain funds to cover his medical expenses as soon as possible. On
February 10, 1999, twelve days before Diamond Offshore had even received a
summons (and thus had yet to file an answer triggering the random assignment
procedure), Whitfield issued a “Fiat” requiring the parties to appear before him
in a hearing on the motion to set a trial date. At the hearing Whitfield set the
case for trial in his own court, thereby effectively assigning the case to himself.
Diamond Offshore’s attorneys became suspicious and investigated for a
potential relationship between Whitfield and Minor & Associates. However,
they discovered no connection (in part because Whitfield’s campaign disclosure
forms revealed none), nor did Whitfield inform the parties of his financial
arrangement with Minor. The case was tried before Whitfield June 20–22, 2000.
On July 12, 2000, Whitfield ruled in favor of Marks and awarded him $3.75
million in damages. Whitfield’s loans matured again soon thereafter, and,
unbeknownst to Diamond Offshore’s counsel, on September 8, 2000, Minor made
a $6,900 cash payment to renew them. On October 3, 2000, in response to
Diamond Offshore’s post-trial motions, Whitfield reduced the award and issued
a final judgment in Marks’ favor for $3.64 million, $3 million of which was
attributable to noneconomic “soft” damages (pain, suffering, loss of enjoyment
of life). Diamond Offshore later appealed to the Mississippi Supreme Court,
which, sitting en banc, affirmed the finding of liability. Diamond Offshore
Mgmt. Co. v. Marks, 2003 Miss. LEXIS 88, at *36 (Miss. Feb. 27, 2003),
withdrawn, 2007 Miss. LEXIS 237 (Miss. Apr. 26, 2007). However, after
conceding that “the trial court had ample material in the record to justify a high
award of damages,” the court reduced the compensatory damages to $1 million
(leaving a total award of $1.64 million), which it deemed to be “within the range
of what we consider acceptable for [Marks’] pain, suffering, and loss of enjoyment
5
of life.” Id. at *36–37.5
Soon after the close of the Marks trial, Whitfield resigned from the bench,
and Minor helped him obtain a job at a prominent law firm in Gulfport,
Mississippi. At that point, Minor deviated from his standard method of payment
on the loans by funneling money through Whitfield rather than paying the bank
himself. In May and December of 2001, Minor wrote two checks to Whitfield for
$15,000 and $10,000 respectively. The checks were accompanied by cover letters
attempting to conceal their true purpose, which was revealed when Whitfield
issued checks to Peoples Bank in the exact same amounts as soon as Minor’s
checks cleared.6 Afterward, Minor returned to his practice of making cash
payments directly to the bank.
Eventually, in July of 2002, federal and state bank examiners conducting
a routine audit of Peoples Bank discovered and criticized the loans, which by
that point had been consolidated into a single obligation. As a result, the bank
requested that the debt be satisfied in full. Minor agreed, and instead of paying
it off himself directly, he enlisted the help of Leonard Radlauer, an attorney from
New Orleans, to act as a strawman. Radlauer, who was a friend of Minor’s from
law school, was also an acquaintance of Whitfield and had contributed to his
campaign when Whitfield first ran for office. Minor asked Radlauer if he would
5
On April 19, 2007, the Mississippi Supreme Court requested sua sponte that the
parties submit a copy of the indictment and jury verdict from the district court proceedings
in the instant case. Diamond Offshore Mgmt. Co. v. Marks, 2007 Miss. LEXIS 243, at *1
(Miss. Apr. 19, 2007). One week later, the court granted Diamond Offshore’s motion for
rehearing, withdrew its original opinion, vacated Whitfield’s judgment, and remanded the
case for a new trial on all issues. Diamond Offshore Mgmt. Co. v. Marks, 2007 Miss. LEXIS
237, at *1 (Miss. Apr. 26, 2007).
6
The first check was purportedly an “advance” on an unresolved lawsuit involving
Whitfield’s mother that was being handled by Minor’s firm, while the second check was
purportedly payment for a “position paper” on a particular matter of law that Whitfield
apparently never wrote.
6
pay off the Whitfield loan in order to “keep it out of the newspapers” and assured
Radlauer that he was not “doing anything funny.” Radlauer agreed, and on
August 27, 2002, Minor wired $125,000 to Radlauer’s account in New Orleans.
That same day, Radlauer wired $118,652.42 to Peoples Bank to pay off
Whitfield’s loan. Minor insisted that Radlauer keep the difference, but Radlauer
eventually returned the money to Minor.7
Some three weeks later, Minor traveled to New Orleans and approached
Radlauer in a local bar appearing “panic stricken” and “very nervous.” Minor
informed Radlauer that the Federal Bureau of Investigation (FBI) might want
to talk with him and assured him that Whitfield would pay him back. When
Radlauer protested that there was nothing to repay, Minor suggested that he
misrepresent the true nature of the transaction to the FBI so as to conceal
Minor’s role. In the meantime, a FedEx envelope from Whitfield’s law firm
containing a falsified Whitfield promissory note to Radlauer for$117,013.21 had
arrived at Radlauer’s office. The note was back-dated to August 26, 2002, the
day before Radlauer had made the wire transfer to Peoples Bank. The envelope
also contained a handwritten note from Whitfield thanking Radlauer for his
“assistance” and “kindness” in paying off the loan and assuring Radlauer that
he would “repay the entire amount plus interest.” Realizing that he had been
drawn into a “shady” transaction, Radlauer immediately returned the false
promissory note to Whitfield, and, in a letter sent to both Whitfield and Minor,
insisted that he be kept out of any improper arrangements in the future.
Neither man responded. By the following summer, Whitfield and Minor were
under indictment.
II. Teel Scheme
7
It appears that Radlauer only returned the money after he later found himself
under investigation by the FBI for his role in the transaction.
7
In October 1998, at the same time that Whitfield was seeking reelection,
Wes Teel was running for judicial office for the first time and facing a run-off
election for a seat on the Eighth Chancery Court District of Mississippi. Just as
he had done for Whitfield, Minor offered to guarantee a loan from Peoples Bank,
in this case a line of credit up to $25,000. Teel accepted, and the loan closed on
November 12, 1998. Teel withdrew $24,500, which he deposited in his campaign
account, and with the help of those funds he won the election. Teel did not
report the loan on his campaign disclosure forms.8
Again, at Minor’s request, the loan was structured so as to require a
balloon payment or renewal every six months. As was the case with Whitfield,
Teel ignored letters and phone calls from the bank when his loan matured six
months later, so the bank contacted Minor. However, unlike Whitfield, Teel
never made any payments at all on the loan with his own funds. On June 28,
1999, after having cashed a check a few days earlier, Minor paid approximately
$1,200 cash to renew Teel’s loan, just minutes before making cash payments on
both of Whitfield’s loans at the Peoples Bank branch in Biloxi. When Teel’s loan
became due again in February of 2000, Minor enlisted the help of his friend and
fellow attorney Richard (“Dickie”) Scruggs to act as intermediary in paying off
the loan in full. In exchange for signing a 30-day promissory note, Scruggs gave
Teel a check for $27,500 on February 23, 2000, which Teel used to pay off his
loan. Minor then reimbursed Scruggs by check on March 9, 2000, thereby
satisfying Teel’s obligation to Scruggs.9 Teel never contacted Scruggs regarding
the promissory note again. Additionally, Teel failed to include the $27,500 check
8
Teel did report the $7,000 in cash contributions that Minor made to his campaign
in early November of 1998.
9
Sometime thereafter, Minor asked Scruggs to take his place as guarantor on one or
both of Whitfield’s loans, but Scruggs refused.
8
in his annual statement of economic interest for that year.
In the meantime, Minor & Associates was in the early stages of litigating
Peoples Bank v. United States Fidelity and Guaranty (USF&G), which it had
filed in the Eighth Chancery Court District the summer before Teel’s election.
Minor’s firm represented Peoples Bank (the same bank that had made the loans
to Whitfield and Teel) in a suit against its insurer, USF&G. Peoples Bank
claimed that USF&G had a duty to defend it against a particular class of
lawsuits being brought by its customers, but USF&G denied coverage under the
bank’s insurance policy. Despite the fact that this was a complex insurance
dispute, Minor’s firm had elected to try the case without a jury in chancery court,
which is an equity court that generally handles matters such as divorce, child
custody, juvenile delinquency, and property disputes.10
Immediately upon filing the complaint, Minor again saw to it that his own
judge of choice was assigned to the case by filing a motion for an expedited
hearing to schedule a trial before Judge J.N. Randall, who was appointed to the
bench by the Governor largely at Minor’s recommendation. Just as Whitfield
had done in the Marks case, Randall issued a “Fiat” setting a hearing in his
court and effectively assumed control of the case. However, Randall did not
prove to be as cooperative as Minor would have liked. When USF&G moved to
transfer the case to Circuit Court, Randall, who had never handled an insurance
dispute before, granted the motion. Minor got “very upset,” and, in an ex parte
conversation, convinced Randall to take the case back.
In discovery, Minor sought access to all of USF&G’s documents relating
to Peoples Bank’s claim, but USF&G objected on the basis of attorney-client
privilege and work product. Already overloaded with work himself, Randall
10
Judge Randall, who was originally assigned to the case, testified that he had never
seen such a dispute filed in chancery court and that it was “very unusual.”
9
assigned the discovery dispute to Teel, who, on October 16, 2000, rejected
USF&G’s privilege claims and ordered all documents disclosed to Peoples Bank.
In response, USF&G filed a motion to reconsider with Randall, and Randall
granted the motion and set aside Teel’s ruling. Minor was “extremely upset” and
immediately called upon Randall in his chambers for another ex parte meeting.
Minor upbraided Randall and convinced him to reassign the entire case to Teel,
and Randall obliged.11
After Teel took control of the case, USF&G’s attorneys moved to stay the
proceedings pending the outcome of USF&G v. Omnibank, which was then
pending before the Mississippi Supreme Court. See 812 So. 2d 196 (Miss. 2002).
In Omnibank, another bank had sued USF&G based on the same contractual
provisions at issue in Peoples Bank, and the Mississippi Supreme Court’s
decision would likely have resolved the dispositive issues in Peoples Bank as
well. The federal district court in Omnibank had granted summary judgment
in favor of the bank, finding that USF&G did have a duty to defend. See Ramsay
v. Omnibank, 215 F.3d 502, 504 (5th Cir. 2000). On appeal, this court had
certified the duty-to-defend question to the Mississippi Supreme Court. See id.
On July 30, 2001, Teel concluded that the motion to stay was “well taken”
and agreed to stay the case, but only for a month, until September 1, 2001. Teel
did not reschedule the trial, which was set for the following December.
Therefore, when the Mississippi Supreme Court still had not reached a decision
one month later, USF&G was faced with an imminent trial and the possibility
of significant punitive damages. On December 18, 2001, Teel granted summary
judgment for Peoples Bank on the duty-to-defend issue, reserving the issues of
11
Finding the circumstances surrounding the filing of the case in chancery court and
the reassignment of the case suspicious, USF&G’s attorneys investigated for a connection
between Minor & Associates and Teel but found none.
10
bad faith and punitive damages for trial. Fearful of a significant punitive
damages award, USF&G agreed to enter into settlement talks. Teel served as
the mediator, engaging in private discussions with each party in the attempt to
reach an agreement. After these conferences proved unproductive, however,
Teel took the unusual step of bringing the parties together to make an
announcement. Teel declared that he was offended by USF&G’s failure to
defend Peoples Bank and that, in his determination,$1.5 million (five times the
amount of actual damages in the case) was an appropriate settlement figure. On
December 21, 2001, fearing a worse outcome if they tried the punitive damages
issue before Teel, USF&G agreed to the $1.5 million settlement. Just over three
months later, the Mississippi Supreme Court issued its opinion in Omnibank,
determining that USF&G had no duty to defend under the insurance policy. See
812 So. 2d at 201–02.
Meanwhile, unbeknownst to USF&G’s attorneys, Minor had been
providing other financial assistance to Teel (in addition to the loan transactions
that had been completed the year before). In October of 2001 (after the one
month stay had lapsed and the parties were preparing for trial in Peoples Bank),
Teel, along with two other chancellors from the Eighth Chancery Court District,
was under investigation by the Mississippi Administrative Office of the
Courts—in Teel’s case for allegedly keeping reimbursement money for himself
rather than paying office-supply vendors. Minor held several strategy meetings
with the judges and hired a public relations firm to help with media exposure.
On or about October 31, 2001, Minor flew Teel and the other judges in his
private plane to Jackson for a meeting in these matters that Minor had
personally arranged with the Mississippi Attorney General. Finally, in June of
2002, after Teel was acquitted of the criminal charges, Minor sent Teel’s
attorney a check for $10,000 to cover part of the defense costs, for which he
11
received a thank-you note from Teel.
PROCEDURAL HISTORY
On July 25, 2003, a federal grand jury sitting in the Southern District of
Mississippi returned a sixteen-count indictment against defendants Minor,
Whitfield, Teel, and two others, Mississippi Supreme Court Justice Oliver E.
Diaz and his former wife, Jennifer Diaz. First and Second Superseding
indictments were returned on February 20, 2004 and October 19, 2004,
respectively, and Jennifer Diaz was eventually dismissed from the case in 2005.
Following trial on the Second Superseding Indictment in the summer of 2005,
the jury returned its verdict August 12, 2005. Justice Diaz was acquitted on all
counts, Minor was acquitted on six counts, and Whitfield was acquitted on one
count. The district court declared a mistrial on all other counts submitted to the
jury, on none of which did the jury return a verdict.12
On December 6, 2005, a fourteen-count Third Superseding Indictment was
12
No verdict was returned in 2005 on any of the counts involving Teel. One of the
six counts on which Minor was acquitted in the 2005 trial (Count four) was a § 1341 charge
based on Whitfield’s September 20, 2002 transmittal of his August 26, 2002 $117,013.21
note to Radlauer (this transmittal was not alleged as a § 1341 count against Minor in the
instant 2007 trial). Whitfield was also charged in that Count Five and the 2005 jury did
not return any verdict as to Whitfield on that count. The other five counts in the Second
Superseding Indictment of which Minor was acquitted each alleged offenses involving
Minor and Diaz only. The sole count in the Second Superseding Indictment of which
Whitfield was acquitted in the 2005 trial was Count Five, a § 1343 wire fraud count based
on Radlauer’s August 27, 2002 wire transfer of $118,652.42 to Peoples Bank in Biloxi (this
transmittal was not alleged as a § 1343 count against Whitfield in the instant 2007 trial).
Minor was also charged in that Count Five and the 2005 jury did not return any verdict as
to Minor on that count.
The counts (other than those involving Diaz or Teel) on which the jury did not
return a verdict in 2005 included: Count One, charging RICO against Minor, predicate acts
including bribery in $40,000 and in $100,000 loans to Whitfield; Count Two charging mail
fraud against Minor and Whitfield as to the service of summons in the Marks v. Diamond
Offshore case; Count Three same as Count Two except related to a subpoena in the Marks
case; Count Four (no verdict as to Whitfield); Count Five (no verdict as to Minor); Count
Twenty-two (Whitfield accepting a bribe from Minor in the Marks case, contrary to § 666);
Count Twelve (Minor bribe of Whitfield in the Marks case contrary to § 666).
12
returned against defendants Minor, Whitfield, and Teel. Count One charged
Minor and Whitfield with conspiracy to commit various offenses against the
United States under 18 U.S.C. § 371, including mail, wire, and honest services
fraud in violation of 18 U.S.C. §§ 1341, 1343, 1346, and 2 and federal program
bribery in violation of 18 U.S.C. § 666. Count Two charged Minor and Teel with
conspiracy to violate the same statutes. Count Three charged Minor with
racketeering in violation of RICO, 18 U.S.C. § 1962, the predicate acts being
bribery and wire fraud. Counts Four through Seven charged Minor and
Whitfield with devising a scheme to defraud the State of Mississippi of its
intangible right to honest services through mail fraud, and Count 8 charged
Minor with devising a scheme to defraud the State of Mississippi of its intangible
right to honest services through wire fraud. Counts Nine and Ten charged
Minor and Teel with devising a scheme to defraud the State of Mississippi of its
intangible right to honest services through mail fraud. Count Eleven charged
Whitfield with accepting bribes while acting as an agent of a state agency
receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B), and Count Twelve
charged Minor with offering those bribes in violation of 18 U.S.C. § 666(a)(2).
Finally, under those same statutes, Count Thirteen charged Teel with accepting
bribes while acting as an agent of a state agency receiving federal funds, and
Count Fourteen charged Minor with offering those bribes. None of the
defendants testified at trial.
On April 2, 2007, the jury found appellants guilty on all charges. In
regard to Count Two, the jury found that the Government had proved that the
Minor and Teel had conspired to commit federal program bribery under 18
U.S.C. § 666, but not mail, wire, and honest services fraud under 18 U.S.C. §§
1341, 1343, 1346, and 2. In regard to the predicate acts underlying the Count
Three RICO charges against Minor, the jury found that the Government had
13
proved bribery as to the $100,000 loan to Whitfield and wire fraud as to the wire
transfer made by Radlauer, but that the Government had failed to prove bribery
as to the $40,000 and $24,500 campaign loans that Minor made to Whitfield and
Teel respectively. Finally, the jury concluded that, for the purposes of the counts
related to federal program bribery under 18 U.S.C. § 666, Whitfield and Teel had
served as agents of the Mississippi Administrative Office of the Courts (but not
of the Harrison County, Mississippi Board of Supervisors general fund).
Defendants were sentenced in September 2007.
The district court sentenced Minor as follows: sixty months as to Counts
One, Two, Four, Five, Six, Eight, Nine, and Ten (conspiracy and mail, wire, and
honest services fraud); one hundred and thirty-two months as to Count Three
(racketeering); and one hundred and twenty months as to Counts Twelve and
Fourteen (federal program bribery), with all sentences to run concurrently for
a total sentence of one hundred and thirty-two months and three years’
supervised release. The district court fined Minor $250,000 per count, for a total
of $2.75 million. Finally, the district court ordered Minor, along with Teel, to
pay $1.5 million in restitution to USF&G.
The district court sentenced Whitfield to sixty months as to Counts One,
Four, Five, Six, and Seven (conspiracy and mail, wire, and honest services fraud)
and one hundred and ten months as to Count Eleven (federal program bribery),
with all sentences to run concurrently for a total sentence of one hundred and
ten months and three years’ supervised release. Finally, Whitfield was fined
$125,000.
The district court sentenced Teel to sixty months as to Counts Two, Nine,
and Ten (conspiracy and mail, wire, and honest services fraud) and seventy
months as to Count Thirteen (federal program bribery), with all sentences to run
concurrently for a total sentence of seventy months, and two years’ supervised
14
release. Finally, Teel, as stated above, was held jointly and severally liable with
Minor on the $1.5 million restitution award to USF&G.
Appellants timely filed this appeal, asserting numerous errors on the part
of the district court. We address them each in turn below.
DISCUSSION
I. Federal Program Bribery under 18 U.S.C. § 666
Appellants challenge their convictions for federal program bribery under
18 U.S.C. § 666. That statute, entitled “Theft or bribery concerning programs
receiving federal funds,” provides in relevant part as follows:
“(a) Whoever, if the circumstance described in subsection (b) of this
section exists–
(1) being an agent of an organization, or of a State, local, or
Indian tribal government, or any agency thereof–
****
(B) corruptly solicits or demands for the benefit of any person,
or accepts or agrees to accept, anything of value from any
person, intending to be influenced or rewarded in connection
with any business, transaction, or series of transactions of
such organization, government, or agency involving any thing
of value of $5,000 or more; or
(2) corruptly gives, offers, or agrees to give anything of value to
any person, with intent to influence or reward an agent of an
organization or of a State, local or Indian tribal government, or
any agency thereof, in connection with any business, transaction,
or series of transactions of such organization, government, or
agency involving anything of value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10 years,
or both.
(b) The circumstance referred to in subsection (a) of this section is
that the organization, government, or agency receives, in any one
15
year period, benefits in excess of $10,000 under a Federal program
involving a grant, contract, subsidy, loan, guarantee, insurance, or
other form of Federal assistance.”
18 U.S.C. § 666(a)-(b) (emphasis added).
At trial, the Government claimed that, by virtue of their judicial offices,
Whitfield and Teel were agents of the Mississippi Administrative Office of the
Courts (AOC), which is a Mississippi state agency charged with “assist[ing] in
the efficient administration of the nonjudicial business of the courts of the state.”
Miss. Code Ann. § 9-21-1 (1972).13 In the years during which Whitfield and Teel
served as judges, the AOC received well over $10,000 in federal funding in
connection with four programs related to: (1) improving state youth courts; (2)
studying juvenile defense; (3) collecting information on cases involving aliens;
and (4) installing modern display systems in the courtrooms.
Before the case was submitted to the jury, appellants filed motions for a
judgment of acquittal under FED. R. CRIM. P. 29 on all counts related to section
666.14 (SROA Vol. 98 at 4059, Vol. 102 at 4637–38). In their motions, appellants
asserted, inter alia, that (1): as judges, Whitfield and Teel were not agents of the
AOC; and (2) their judicial rulings in Marks and Peoples Bank were neither
“transactions” of the AOC nor otherwise connected to any “business” of the AOC.
On appeal, appellants argued that there was insufficient evidence for a
reasonable jury to find that Whitfield and Teel were agents of the AOC, but they
failed to renew their claims that Whitfield and Teel’s challenged judicial rulings
in the referenced private party lawsuits were not related to the business or
13
The Government also asserted that Whitfield and Teel were agents of Harrison
County, but the jury ultimately rejected that contention.
14
Appellants also filed motions to dismiss the indictment for failure to state an
offense under FED. R. CRIM. P. 12. As the Rule 29 motions are dispositive, we do not
consider the Rule 12 motions here.
16
transactions of the AOC. Troubled by the failure of the parties to address what
we regarded as a fundamental issue in the case, we requested that the parties
submit supplemental briefs discussing whether Whitfield and Teel’s judicial
rulings in Marks and Peoples Bank were made in connection with the
transactions or business of the AOC, and the parties have done so.
A. Standard of Review
We review de novo the denial of Rule 29 motion for a judgment of
acquittal. United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008). However,
where a party fails to raise an issue on appeal, review, if any, is generally for
plain error. See United States v. Evans, 848 F.2d 1352, 1359 (5th Cir. 1988).
B. Were Whitfield and Teel agents of the AOC?
Section 666 broadly defines “agent” as “a person authorized to act on
behalf of another person or a government and, in the case of an organization or
government, includes a servant or employee, and a partner, director, officer,
manager, and representative.” 18 U.S.C. § 666(d)(1). In United States v.
Phillips, we held that for an individual to be an “agent” for the purposes of
section 666, he must be “authorized to act on behalf of [the agency] with respect
to its funds.” 219 F.3d 404, 411 (5th Cir. 2000).
At trial, the Government presented testimony that the AOC handled the
finances for the entire Mississippi court system, including payroll, travel
expenses, inventory, and budgeting. Each judge was allotted $40,000 annually
from the AOC to pay the salaries of chambers staff, including secretaries,
paralegals, and law clerks. Although these staff personnel were technically
employees of the AOC, in reality the judges maintained independent control over
their chambers staff and were responsible for all employment decisions.
Additionally, the judges were provided with another $4,000 each year to cover
operating expenses and could request reimbursement for travel expenses.
17
Appellants contend that they should not be considered agents of the AOC
under section 666, because the agency funds under their control were entirely
unrelated to and separate from the federal funds received by the AOC. This
court has held that “[a]lthough the conduct prohibited by section 666 need not
actually affect the federal funds received by the agency, there must be some
nexus between the criminal conduct and the agency receiving federal
assistance.” United States v. Moeller, 987 F.2d 1134, 1137 (5th Cir. 1993). In
Phillips, we observed that “the funds in question need not be purely federal, nor
must the conduct in question have a direct effect on federal funds. The statute
possibly can reach misuse of virtually all funds of an agency that administers the
federal program in question.” 219 F.3d at 411 (citing Salinas v. United States,
118 S. Ct. 469, 473–74 (1997)). In Sabri v. United States, the Supreme Court
explained why courts have interpreted section 666 broadly in this regard:
“Money is fungible, bribed officials are untrustworthy stewards of federal funds,
and corrupt contractors do not deliver dollar-for-dollar value. Liquidity is not
a financial term for nothing; money can be drained off here because a federal
grant is pouring in there.” 124 S. Ct. 1941, 1946 (2004). Therefore, so long as
there is a “nexus between the criminal conduct and the agency,” see Moeller, 987
F.2d at 1137, the lack of a direct connection between the AOC funds under the
judges’ control and the federal funds in question does not preclude them from
being considered agents of the AOC for the purposes of section 666.
In the sense that Whitfield and Teel hired chambers staff that were paid
at the expense of the AOC, they were authorized as judges “to act on behalf of
[the AOC] with respect to its funds.” See Phillips, 219 F.3d at 411. Therefore,
we will assume, arguendo, that Whitfield and Teel were agents of the AOC, but
only in so far as they performed functions that involved AOC funds. See Moeller,
987 F.2d at 1137 (focusing the section 666 agency inquiry on whether the
18
defendants were acting on behalf of the state agency receiving federal funds
when they accepted the alleged bribes).
C. Were the judicial rulings in Marks and Peoples Bank made “in
connection with any business, transaction, or series of transactions” of the AOC?
In order for section 666 to apply, the bribe must be offered or accepted “in
connection with any business, transaction, or series of transactions” of the
agency receiving federal funds. 18 U.S.C. § 666(a)(1)(B), (2). Thus, the key
inquiry on this issue is whether Whitfield and Teel’s decisions in Marks and
Peoples Bank were connected with the transactions or business of the AOC.
Although this court has yet to address the reach of 666 in this particular
respect, we note that at least one federal district court has dismissed an
indictment brought under similar circumstances. See United States v. Frega,
933 F. Supp. 1536, 1542–43 (S.D. Cal. 1996), aff’d in part, rev’d in part on other
grounds, 179 F.3d 793 (9th Cir. 1999). In Frega, an attorney and two state
judges were charged with violating section 666 for a scheme in which the
attorney allegedly bribed the judges in exchange for favorable rulings in cases
pending in their courts. Id. at 1538. The district court dismissed the section 666
count of the indictment because it failed to “allege that federal funds were
corruptly administered, were in danger of being corruptly administered, or even
could have been corruptly administered.” Id. at 1543. As the Frega court
observed,
Ҥ 666 was intended to protect the integrity of federal funds, and not
as a general anti-corruption statute. . . . Of course, state judges
could be subject to § 666 in certain circumstances. For example, if
the state court system received federal funding for the purpose of
appointing counsel in death penalty habeas proceedings, and a state
court judge accepted a bribe in exchange for appointing a particular
attorney as habeas counsel, § 666 would clearly be implicated, even
if the actual funds used to pay counsel were state funds.”
19
Id. at 1542–43. The related cases of United States v. Massey, 89 F.3d 1433 (11th
Cir. 1996), and United States v. Castro, 89 F.3d 1443 (11th Cir. 1996), illustrate
the point made by the district court in Frega. In those cases, the defendants
were convicted under section 666 for their role in a bribery scheme in which
state judges accepted kickbacks from attorneys in exchange for appointments as
special assistant public defenders, an arrangement which garnered the attorneys
(and ultimately the judges) significant fees at the expense of the county (which
was a recipient of federal funds, in excess of 90 million a year). Castro, 89 F.3d
at 1447–48, 1454; Massey, 89 F.3d at 1436–37.
A review of the record in this case makes clear that, insofar as Whitfield
and Teel may have been agents of the AOC, their role as such had nothing to do
with their capacity as judicial decisionmakers. As stated above, the purpose of
the AOC is to “assist in the efficient administration of the nonjudicial business
of the courts of the state.” Miss. Code Ann. § 9-21-1 (1972) (emphasis added).
As a fundamental matter, Whitfield and Teel’s role in presiding over Marks and
Peoples Bank involved the judicial business of the Mississippi courts. If Minor
had bribed Whitfield or Teel in exchange for their appointment of a friend or
family member as a law clerk or secretary, then section 666 might have been
implicated in this case. As it stands, however, the bribes that Whitfield and Teel
accepted in conjunction with their handling of Marks and Peoples Bank clearly
had no “connection with any business, transaction, or series of transactions” of
the AOC. See 18 U.S.C. § 666(a)(1)(B), (2).
In its supplemental brief, the Government does not deny that appellants
raised this point at trial in their Rule 29 motions for a judgment of acquittal.
However, the Government protests that appellants failed to raise this issue on
appeal. As a general rule, a party waives any argument that it fails to brief on
20
appeal. See FED. R. APP. P. 28(a)(9)(A); Proctor & Gamble Co. v. Amway Corp.,
376 F.3d 496, 499 n.1 (5th Cir. 2004). However, this court has recognized an
exception to this rule whereby we will consider a point of error not raised on
appeal when it is necessary “to prevent a miscarriage of justice.” United States
v. Montemayor, 703 F.2d 109, 114 n.7 (5th Cir. 1983). Indeed, the Federal Rules
of Criminal Procedure grant us the authority to reverse a conviction on the basis
of plain error, even though the defendant has not raised the issue on appeal.
FED. R. CRIM. P. 52(b) (“A plain error that affects substantial rights may be
considered even though it was not brought to the court’s attention.”). As the
Supreme Court has observed: “‘In exceptional circumstances, especially in
criminal cases, appellate courts, in the public interest, may, of their own motion,
notice errors to which no exception has been taken, if the errors are obvious, or
if they otherwise seriously affect the fairness, integrity, or public reputation of
judicial proceedings.’” Silber v. United States, 82 S. Ct. 1287, 1288 (1962)
(quoting United States v. Atkinson, 56 S. Ct. 391, 392 (1936)). In Silber the Court
reversed a conviction on an issue that it recognized was “not presented to the
Court of Appeals and was not briefed or argued in this Court.” Id. Similarly,
in United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971), we reversed a
conviction for insufficient evidence on a basis not urged below or on appeal,
stating “We notice this error on our own motion, as we think we are required to
do when the error is so obvious that failure to notice it would ‘seriously affect the
fairness, integrity, or public reputation of judicial proceedings.’” (quoting the
above passage from Atkinson quoted in Silber). See also, e.g., United States v.
Gonzales, 259 F.3d 355, 359 (5th Cir. 2001) (“We may raise an issue sua sponte
‘even though it is not assigned or specified’ when ‘plain error is apparent,’”
21
quoting United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir. 1992).15
We believe that this case presents just such an exceptional circumstance.
Whitfield’s and Teel’s role as presiding judges in Marks and Peoples Bank had
no “connection with any business, transaction, or series of transactions” of the
AOC. See 18 U.S.C. § 666(a)(1)(B), (2). Therefore, by its own plain language,
section 666 applies neither to Whitfield’s and Teel’s acceptance of bribes nor to
Minor’s offering of bribes in connection with those cases. The Government has
cited no authority supporting a contrary conclusion. As such, we hold that the
district court committed plain error when it denied appellants’ Rule 29 motions
for judgment of acquittal on the section 666 counts of the indictment.
II. Jury Instructions
A. Bribery
Appellants assert that the jury instructions were inadequate because the
district court failed to require the Government to prove an explicit quid pro quo
in connection with the bribery-related charges. We review a district court’s jury
instructions for abuse of discretion. United States v. Freeman, 434 F.3d 369, 377
(5th Cir. 2005). In doing so, “[w]e consider whether the instruction, taken as a
whole, ‘is a correct statement of the law and whether it clearly instructs jurors
as to the principles of law applicable to the factual issues confronting them.’” Id.
(quoting United States v. Daniels, 281 F.3d 168, 183 (5th Cir. 2002)).
15
We are aware that, generally speaking, the plain error rule is invoked when an
appellant raises an issue on appeal that he failed to preserve in the court below. Here, we
are confronted with the inverse situation, where appellants raised the issue below but not
on appeal. Nevertheless, we conclude that the plain error rule has equal force in the
present context, where enforcement of the waiver doctrine would result in a conviction that
is unsupported by the plain language of the statute itself. See, e.g., United States v.
Spruill, 292 F.3d 209, 213-15 (5th Cir. 2002).
We also note that as this matter was discussed at oral argument and the subject of
full supplemental briefing, all parties have had an opportunity to be heard on this question
despite its omission in the original appellate briefing.
22
As we have already disposed of the counts related to section 666, we
consider the district court’s bribery instruction only insofar as it relates to the
alleged scheme to deprive the state of Mississippi of its intangible right to
Whitfield’s and Teel’s honest services. In United States v. Brumley, we held
that, in order to convict for the federal crime of depriving a state of the honest
services of one of its officials, “a federal prosecutor must prove that conduct of
a state official breached a duty respecting the provision of services owed to the
official’s employer under state law.” 116 F.3d 728, 734 (5th Cir. 1997) (en banc).
However, we were careful to note that, in order to constitute a federal crime, the
state statute must concern “something close to bribery” and that “the mere
violation of a gratuity statute . . . will not suffice.” Id.
Consistent with that opinion and at the request of all parties, the district
court based its definition of bribery in the jury charge on the Mississippi offense
of bribery, which prohibits giving things of value to an official “with intent to
influence his vote, opinion, action or judgment on any question, matter, cause or
proceeding which may be then pending, or may be thereafter subject to vote,
opinion, action or judgment” of the official. Miss. Code Ann. § 97-11-11 (1972).
Specifically, the jury charge read as follows:
“In order to prove the scheme to defraud another of honest services
through bribery, the Government must prove beyond a reasonable
doubt that the particular defendant entered into a corrupt
agreement for Paul S. Minor to provide the particular judge with
things of value specifically with the intent to influence the action or
judgment of the judge on any question, matter, cause or proceeding
which may be then or thereafter pending subject to the judge’s
action or judgment.”
Additionally, when discussing the mens rea necessary to convict appellants, the
district court instructed the jury as follows:
“You’ve heard evidence about rulings that then Judge Whitfield and
23
then Judge Teel made on civil cases in which Mr. Minor’s law firm
represented civil plaintiffs. Such evidence bears on whether the
defendant judges had any specific intent to violate the law. That is,
a specific intent to take a bribe. In addressing this question, you
may consider whether the rulings were accompanied by the judges’
honest belief in the law and facts of a particular case rather than a
corrupt purpose.”
This jury charge was also consistent with the language of the Fifth Circuit
Pattern Jury Instructions on “Bribery of a Public Official” under 18 U.S.C. §
201(b)(1) and “Receiving Bribe by Public Official” under 18 U.S.C. § 201(b)(2),
which require the jury to find that the defendant gave “something of value . . .
corruptly with intent to influence an official act” (bribery) or accepted
“something of value . . . corruptly in return for being influenced in his
performance of an official act” (receiving a bribe). See FIFTH CIRCUIT PATTERN
JURY INSTRUCTIONS (Criminal Cases) §§ 2.12, 2.13 (2001).
Appellants do not contest the district court’s incorporation of the
Mississippi definition of bribery in the jury charge. Rather, they claim that,
because the loan guarantees were made in the context of the Whitfield and Teel’s
electoral campaigns, their constitutional right to free political speech is at stake
in this case. See Fed. Election Comm’n v. Wis. Right to Life, Inc., 127 S. Ct. 2652,
2676 (2007) (recognizing that “contributing money to, and spending money on
behalf of, political candidates implicates core First Amendment protections”).
As such, appellants assert that the Government was required to prove something
more than mere bribery under Mississippi law—namely, that there was an
explicit quid pro quo involving a specific official act identified at the time that
Minor arranged and guaranteed the loans from Peoples Bank. See McCormick
v. United States, 111 S. Ct. 1807, 1815–17 (1991). Appellants claim that, by
failing to sufficiently require a quid pro quo exchange, the district court allowed
the jury to convict them for acts that essentially amounted to gratuity, not
24
bribery. See United States v. Sun-Diamond Growers of California, 119 S. Ct.
1402, 1406–07 (1999). In their proposed jury instructions, appellants requested
that the district court instruct the jury that: (1) the thing of value must be given
“in order to influence or induce a specific official act”; (2) a financial transaction
“is not a bribe unless at the time of the transaction Mr. Minor intended it to
cause or accomplish some specific official action by the judge which, at the time
of the transaction, was identified by Paul Minor”; and (3) “[a] corrupt intent
exists only if there is a specific quid pro quo for the official to engage in a specific
official act in exchange for the thing of value. . . . Vague expectations of some
future benefit are not sufficient to make a payment a bribe.”
In McCormick, the Supreme Court held that a conviction under the Hobbs
Act for extortion under color of official right requires a showing of an explicit
quid pro quo when the alleged illegal payments take the form of campaign
contributions. 111 S. Ct. at 1817. The Court expressed concern that “[t]o hold
otherwise would open to prosecution not only conduct that has long been thought
to be well within the law but also conduct that in a very real sense is
unavoidable so long as election campaigns are financed by private contributions
and expenditures.” Id. at 1816. Thus, to prove a violation under the Hobbs Act,
the Government is required to prove that “the payments are made in return for
an explicit promise . . . to perform or not to perform an official act.” Id. In Evans
v. United States, the Supreme Court clarified that no overt act is required on the
part of the official, because “the offense [of extortion under color of official right]
is completed at the time when the public official receives a payment in return for
his agreement to perform specific official acts.” 112 S. Ct. 1881, 1889 (1992)
(emphasis added). Therefore, to establish a quid pro quo, “the Government need
only show that a public official has obtained a payment to which he was not
25
entitled, knowing that the payment was made in return for official acts.” Id.
McCormick and Evans left open the question of what level of specificity is
required to prove a quid pro quo in regard to the “quo” or agreed-upon official
act. In United States v. Tomblin, a bribery case involving campaign
contributions, we observed that “[t]he government need not prove the occurrence
of the quid pro quo; proof of the agreement will suffice.” 46 F.3d 1369, 1380 (5th
Cir. 1995) (citing Evans, 112 S.Ct at 1889). In support of this proposition, we
cited with approval to the Second Circuit’s decision in United States v. Coyne,
which held that the “‘government does not have to prove an explicit promise to
perform a particular act made at the time of payment. Rather, it is sufficient if
the public official understands that he or she is expected as a result of the
payment to exercise particular kinds of influence . . . as specific opportunities
arise.’” Id. at 1381 n.19 (quoting United States v. Coyne, 4 F.3d 100, 114 (2d Cir.
1993), cert. denied, 114 S. Ct. 929 (1994)). Similarly, while noting that the
“generalized hope or expectation of ultimate benefit on the part of the donor does
not constitute a bribe,” the Fourth Circuit has observed that “the government
need not show that the defendant intended for his payments to be tied to specific
official acts.” United States v. Jennings, 160 F.3d 1006, 1013–14 (4th Cir. 1998)
(internal quotations and citations omitted). The Jennings court went on to
explain that
“all that must be shown is that payments were made with the intent
of securing a specific type of official action or favor in return. For
example, payments may be made with the intent to retain the
official’s services on an ‘as needed’ basis, so that whenever the
opportunity presents itself the official will take specific action on the
payor’s behalf. This sort of ‘I’ll scratch your back if you scratch
mine’ arrangement constitutes bribery because the payor made
payments with the intent to exchange them for specific official
action.”
26
Id. at 1014 (emphasis in original) (internal citations omitted). Thus, in the wake
of McCormick and Evans, this circuit and others took the position that a
particular, specified act need not be identified at the time of payment to satisfy
the quid pro quo requirement, so long as the payor and payee agreed upon a
specific type of action to be taken in the future.
Appellants argue that these cases were abrogated by the Supreme Court’s
subsequent decision in Sun-Diamond. See 119 S. Ct. at 1406–07, 1411. In that
case, the defendant trade association was charged under the federal gratuity
statute, 18 U.S.C. § 201(c)(1)(A), for giving various gifts to the Secretary of
Agriculture in exchange for his influence in shaping federal regulations affecting
the trade association’s interests. Id. at 1405. “Although describing [the] two
matters before the Secretary in which respondent had an interest, the
indictment did not allege a specific connection between either of them—or
between any other action of the Secretary—and the gratuities conferred.” Id.
The defendant argued that it could not be convicted under the gratuity statute
without a showing that it had offered the allegedly illegal gratuities in exchange
for specific official acts. See id. at 1406. To place this argument in context, the
Supreme Court outlined the distinction between the related offenses of gratuity
and bribery, both of which are contained in 18 U.S.C. § 201:
“The distinguishing feature of each crime is its intent element.
Bribery requires intent ‘to influence’ an official act or ‘to be
influenced’ in an official act, while illegal gratuity requires only that
the gratuity be given or accepted ‘for or because of’ an official act.
In other words, for bribery there must be a quid pro quo—a specific
intent to give or receive something of value in exchange for an
official act. An illegal gratuity, on the other hand, may constitute
merely a reward for some future act that the public official will take
(and may already have determined to take), or for a past act that he
has already taken.”
27
Id. The Court took issue with the portion of the jury charge in Sun-Diamond
suggesting that Ҥ 201(c)(1)(A), unlike the bribery statute, did not require any
connection between respondent’s intent and a specific official act.” Id. The
Court rejected the Government’s position that the gratuity statute “reaches any
effort to buy favor or generalized goodwill from an official who either has been,
is, or may at some unknown, unspecified later time, be in a position to act
favorably to the giver’s interests.” Id. at 1407 (emphasis in original) (internal
quotations and citations omitted). Instead, the Court concluded that the
language of the gratuity statute “seems pregnant with the requirement that
some particular act be identified and proved.” Id. Thus, the Court ultimately
held that “in order to establish a violation of 18 U.S.C. § 201(c)(1)(A), the
Government must prove a link between a thing of value conferred upon a public
official and a specific ‘official act’ for or because of which it was given.” Id. at
1411.
Appellants ask this court to extend Sun-Diamond’s reasoning to apply in
the context of deprivation of honest services through bribery. In United States
v. Kemp, the Third Circuit did just that. 500 F.3d 257, 281 (3rd Cir. 2007), cert.
denied, 128 S. Ct. 1329 (2008) (finding that Sun-Diamond’s discussion of the quid
pro quo required for bribery under 18 U.S.C. § 201(b) “is equally applicable to
bribery in the honest services fraud context”). Nevertheless, the Third Circuit
determined that the jury charge in question met the standard laid out by the
Supreme Court in Sun-Diamond. Id. The contested portion of the district
court’s jury instruction in Kemp stated that “where there is a stream of benefits
given by a person to favor a public official, . . . it need not be shown that any
specific benefit was given in exchange for a specific official act.” Id. (internal
citation and quotations omitted). In concluding that this was an accurate
28
statement of the law, the court observed that “[t]he key to whether a gift
constitutes a bribe is whether the parties intended for the benefit to be made in
exchange for some official action; the government need not prove that each gift
was provided with the intent to prompt a specific official action.” Id. at 282
(citing Jennings, 160 F.3d at 1014).
In United States v. Kincaid-Chauncey, the Ninth Circuit agreed with the
Third Circuit that, in a prosecution for honest services fraud, “[w]hen the
government’s theory is that a public official accepted money in exchange for
influence, . . . at least an implicit quid pro quo is required.” 556 F.3d 923, 943
(9th Cir. 2009) (citing Kemp, 500 F.3d at 281–82). The court observed that
bribery requires “a link between the item of value received and an
understanding that the public official receiving it is to perform official acts on
behalf of the payor when called upon.” Id. at 943. The court cited to Sun-
Diamond as an example of the Supreme Court’s imposition of a nexus
requirement “in a similar context.” Id. However, the court went on to note that
“the district court need not use the words ‘quid pro quo’ when it instructs the
jury so long as the essential idea of give-and-take is conveyed. Nor need the
implicit quid pro quo concern a specific official act.” Id. (internal citations
omitted).
In United States v. Ganim, a case involving federal program bribery,
extortion, and honest services fraud through bribery, the Second Circuit took a
different tack to arrive at the same result. See 510 F.3d 134, 144–50 (2nd Cir.
2007), cert. denied, 128 S. Ct. 1911 (2008). Like the Third Circuit in Kemp and
the Ninth Circuit in Kincaid-Chauncey, the Ganim court rejected the contention
that “the benefits received must be directly linked to a particular act at the time
of agreement.” Id. at 145, 148–49; see also United States v. Abbey, 560 F.3d 513,
29
519 (6th Cir. 2009) (holding that, in order to prove extortion, the Government
“did not need to assert a direct link between [the official’s] receipt of property
and an explicit promise to perform a specific, identifiable act of improper
influence when the gift was given.”) However, in contrast to the Third and
Ninth Circuits, the Ganim court concluded that Sun-Diamond had no
application outside of the illegal gratuity context. 510 F.3d at 145–47, 150.16
In reaching this conclusion, the court distinguished Sun-Diamond based
on that case’s heavy reliance on the particular language of the gratuity statute,
which criminalizes payments “for or because of any official act.” Id. at 146. In
contrast, the court observed that the bribery-related statutes at issue in Ganim
did not contain any similar language. Id. Additionally, the court determined
that there was no “principled reason to extend Sun-Diamond’s holding beyond
the illegal gratuity context,” because the Supreme Court’s chief concern in Sun-
Diamond was “supply[ing] a limiting principle that would distinguish an illegal
gratuity from a legal one.” Id. at 146. However, no such limiting principle was
required outside the gratuity context, because, unlike the gratuity statute, the
extortion and bribery statutes require “an intent to perform an act in exchange
for a benefit—i.e., the quid pro quo agreement.” Id. at 146–47. Therefore, by
requiring that the Government prove the existence of a corrupt exchange, the
bribery statutes obviated the need to demonstrate a direct link between the
payments and a particular official act. Id. In summation, the court concluded
as follows:
“Thus, now, as before Sun-Diamond, so long as the jury finds that
an official accepted gifts in exchange for a promise to perform
16
We recognize the fact that the Ganim court went on to suggest in dicta that, if
Sun-Diamond were to apply in the extortion and honest services contexts, then a particular
official act would need to be identified at the time of payment. See 510 F.3d at 146–47.
30
official acts for the giver, it need not find that the specific act to be
performed was identified at the time of the promise, nor need it link
each specific benefit to a single official act. To require otherwise
could subvert the ends of justice in cases—such as the one before
us—involving ongoing schemes. In our view, a scheme involving
payments at regular intervals in exchange for specific officials acts
as the opportunities to commit those acts arise does not dilute the
requisite criminal intent or make the scheme any less ‘extortionate.’
Indeed, a reading of the statute that excluded such schemes would
legalize some of the most pervasive and entrenched corruption, and
cannot be what Congress intended.”
Id. at 147. Although this statement was included in the court’s discussion of
extortion, the court indicated that the same reasoning applied in the context of
honest services fraud through bribery. Id. at 146, 149–50.
We begin our analysis of the instant case by noting that, rather than a
single payment or transaction, this case involves two ongoing bribery schemes
similar to the ones addressed in Kemp, Kincaid-Chauncey, and Ganim. By
ensuring that the loans became due every six months, Minor kept Whitfield and
Teel at his mercy for as long as those debts remained outstanding. And because
Minor made payments on behalf of Whitfield and Teel each time the loans
became due, the illegal transactions continued well after Minor initially agreed
to guarantee the loans. In Teel’s case, even after the loan was paid off, Minor
provided Teel with valuable financial and legal assistance in connection with his
state prosecution for embezzling state funds. Thus, rather than single, lump-
sum bribes, this case involved two prolonged bribery schemes spanning nearly
four years each.
Whether we adopt the Third and Ninth Circuit’s conclusion that Sun-
Diamond applies in to honest services fraud but that a particular act need not
be identified at the time of payment, or the Second Circuit’s conclusion that Sun-
Diamond does not apply to honest services fraud at all, we arrive at the same
31
result—namely, that the district court’s jury instructions in this case accurately
stated the law and did not constitute reversible error. For the sake of argument,
we will assume that McCormick and Sun-Diamond do apply and that a quid pro
quo instruction was required in this case. In doing so, we are also willing to
assume that the initial $40,000 loan guarantee to Whitfield and the $25,000 loan
guarantee to Teel were campaign contributions. However, we reject any attempt
to characterize the $100,000 loan guarantee to Whitfield for the down-payment
on a home and the financial and legal assistance provided to Teel in connection
with his state prosecution for embezzlement as having anything to do with their
respective electoral campaigns. Still, even if we assume that a quid pro quo
instruction was necessary because at least some of the financial transactions in
question were campaign-related, we conclude that the jury charge in this case
sufficiently fulfilled that requirement. See United States v. Siegelman, 561 F.3d
1215, 1225 (11th Cir. 2009).
The jury instructions required the Government to prove that appellants
entered into “a corrupt agreement for Paul S. Minor to provide the particular
judge with things of value specifically with the intent to influence the action or
judgment of the judge on any question, matter, cause or proceeding which may
be then or thereafter pending subject to the judge’s action or judgment.”
(emphasis added). Additionally, the jury was instructed to consider whether
“the rulings were accompanied by the judges’ honest belief in the law and facts
of a particular case rather than a corrupt purpose.” (emphasis added). Although
the district court did not require the Government to prove that Minor and the
judges had identified a particular case that would be influenced at the time that
32
Minor guaranteed the loans,17 the overwhelming weight of authority from this
court and our sister circuits supports the conclusion that the law does not
require such a showing from the Government. See Tomblin, 46 F.3d at 1381,
n.19 (Fifth Circuit); Abbey, 560 F.3d at 519 (Sixth Circuit); Kincaid-Chauncey,
556 F.3d at 943 (Ninth Circuit); Kemp, 500 F.3d at 282 (Third Circuit); Ganim,
510 F.3d at 145 (Second Circuit); Jennings, 160 F.3d at 1014 (Fourth Circuit).
The law only requires that the Government prove the “specific intent to give or
receive something of value in exchange for an official act” to be performed
sometime in the future. See Sun-Diamond, 119 S. Ct. at 1406. This was satisfied
by the portion of the jury charge requiring the Government to prove that
appellants entered into a “corrupt agreement” and that the judges’ rulings were
based upon “a corrupt purpose” rather than an “honest belief in the law and
facts.” Despite the district court’s failure to include the actual phrase quid pro
quo in the jury charge, in the instant context the instructions sufficiently
conveyed the “essential idea of give-and-take.” See Kincaid-Chauncey, 556 F.3d
at 943. Under the undisputed facts here, the jury’s finding that there was a
corrupt agreement necessarily entailed a finding of an exchange of things of
value for favorable rulings in the judges’ courts. Therefore, to the extent that a
quid pro quo instruction may have been required in this case, the district court
adequately delivered one.
B. Conspiracy instruction
Whitfield alleges that the district court erred by providing a conspiracy
instruction that “allow[ed] the jury to consider all three . . . defendants together
as conspirators, rather than differentiating between the alleged conspiracies
17
Indeed, as Marks had not yet been filed in Whitfield’s court and as Teel was not
yet on the bench, it would have been impossible for appellants to identify those cases at the
time the loan guarantees were made.
33
charged in the indictment.” Accordingly, he claims, he was denied a fair trial
through the constructive amendment of the indictment.
We disagree. In instructing the jury, the district court specifically
distinguished between the conspiracy involving Minor and Whitfield charged in
Count One and the conspiracy involving Minor and Teel charge in Count Two.
The jury charge closely tracked the elements of conspiracy as set forth in Fifth
Circuit Pattern Jury Instructions. See FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (Criminal Cases) § 2.20 (2001). It is well-settled that a district
court does not err by giving a charge that tracks this Circuit’s pattern jury
instructions and that is a correct statement of the law. United States v. Turner,
960 F.2d 461, 464 (5th Cir. 1992). In addition, the district court instructed the
jury to consider each count and each defendant separately in accordance with
the Fifth Circuit Pattern Jury Instructions on cases involving multiple
defendants and multiple counts. See FIFTH CIRCUIT PATTERN JURY
INSTRUCTIONS (Criminal Cases) § 1.23 (2001). The jury was also required to
enter its verdict separately for each defendant and for each count of indictment.
Accordingly, there was no error.
III. Sufficiency of the evidence regarding Whitfield’s intent to use the mails
Whitfield claims that the Government produced insufficient evidence to
establish that he knew or intended that the mails would be used to further a
fraudulent scheme. The Government contends that Whitfield failed to
adequately raise the issue below, therefore we should review only for a manifest
miscarriage of justice. See United States v. McDowell, 498 F.3d 308, 312 (5th
Cir. 2007). Although the basis of Whitfield’s argument below is slightly unclear,
we will assume that Whitfield adequately raised this issue with the district court
in his Rule 29 motion for a judgment of acquittal. We review the district court’s
denial of that motion de novo. See Valle, 538 F.3d at 344.
34
Although Whitfield initially challenged his indictment for mail fraud in
relation to Count Seven, which was premised upon his sending of the fraudulent
promissory note to Radlauer on September 20, 2002, apparently he has
abandoned this argument on appeal. Presently, Whitfield asserts that there was
insufficient evidence to support a finding that he possessed the necessary mens
rea to commit mail fraud in relation to the following counts of the indictment:
Count Four, which was based upon the service of the summons and the
complaint in the Marks case on Diamond Offshore on February 22, 1999; Count
Five, which was based upon the subpoena duces tecum sent by Diamond
Offshore to a witness in Marks on August 23, 1999; and Count Six, which was
based upon the mailing of Minor & Associates’ response to Diamond Offshore’s
motion for a new trial on August 3, 2000.
The mail fraud statute applies to anyone who “knowingly causes to be
delivered by mail” anything “for the purpose of executing” “any scheme or
artifice to defraud.” See 18 U.S.C. § 1341. The Government is not required to
prove that the defendant specifically intended for the mails to be used in
furtherance of the alleged fraudulent scheme. United States v. Massey, 827 F.2d
995, 1002 (5th Cir. 1987). Rather, “‘[t]he test to determine whether the
defendant caused the mails to be used is whether the use was reasonably
foreseeable.” Id. (quoting R.A.G.S. Couture, Inc. v. Hyatt, 774 F.2d 1350, 1354
(5th Cir. 1985)).
Pursuant to Rule 4(c)(3) of the Mississippi Rules of Civil Procedure, the
circuit clerk court was authorized to issue a summons, along with a copy of the
complaint, to Diamond Offshore by mail. Further, although Rule 45 of the
Mississippi Rules of Civil Procedure requires that subpoena be served
personally, the Government presented evidence that Diamond Offshore’s
attorney sent the subpoena duces tecum by mail with return receipt requested,
35
a practice that he testified was “very common” and considered effective so long
as opposing counsel did not object. Finally, we find it difficult to believe that, as
a trial judge, Whitfield would have been unaware that litigants commonly use
the mail to serve responsive motions on one another.
On the whole, because we conclude that there was sufficient evidence for
a jury to conclude that it was reasonably foreseeable to Whitfield that the above
documents would be sent by mail, we find no reversible error in the district
court’s denial of Whitfield’s Rule 29 motion on this point.
IV. Pretrial Issues
A. Joinder and severance
Appellants contend that they were improperly joined as defendants and
that the court should have granted their motions to sever. A claim of misjoinder
is a matter of law that we review de novo, but we may affirm if we find that
misjoinder occurred but that the error was harmless. See United States v.
Maggitt, 784 F.2d 590, 595 (5th Cir. 1986).
Two or more defendants may be charged in a single indictment “if they are
alleged to have participated in the same act or transaction, or in the same series
of acts or transactions, constituting an offense or offenses.” FED. R. CRIM. P. 8(b).
We have held that “defendants charged with two separate—albeit
similar—conspiracies having one common participant are not, without more,
properly joined.” United States v. Welch, 656 F.2d 1039, 1049 (5th Cir. Unit A
1981). Nevertheless, in Welch we went on to hold that “[w]hen otherwise
separate offenses are charged as predicate acts of a substantive RICO count,
they may be related to each other in such a way as to satisfy Rule 8(b).” Id. at
1051; see also United States v. Manzella, 782 F.2d 533, 540 (5th Cir. 1986)
(finding joinder proper even though the defendant charged with mail fraud was
not indicted along with his codefendant under RICO).
36
In this case, Whitfield and Teel were charged for their participation in two
separate bribery schemes linked only by Minor’s involvement in both. However,
as was the case in Welch and Manzella, the bribery and wire fraud charges
involving Whitfield and Teel constituted the predicate acts underlying the
substantive RICO count brought against Minor. Therefore, we conclude that
appellants were properly joined.
Appellants also argue that joinder was prejudicial and that the district
court erred in denying their motions to sever. See FED. R. CRIM. P. 14. Rule 14
provides in relevant part as follows: “If the joinder of offenses or defendants in
an indictment, an information, or a consolidation for trial appears to prejudice
a defendant or the government, the court may order separate trials of counts,
sever the defendants’ trials, or provide any other relief that justice requires.”
FED. R. CRIM. P. 14(a). The denial of a motion to sever is reviewed under an
“exceedingly deferential” abuse of discretion standard. United States v. Tarango,
396 F.3d 666, 673 (5th Cir. 2005). We will not reverse a conviction based upon
denial of a motion to sever “unless the defendant can demonstrate compelling
prejudice against which the trial court was unable to afford protection, and that
he was unable to obtain a fair trial.” Massey, 827 F.2d at 1004.
We find no compelling prejudice that would warrant reversal in this case.
Although the evidence in this case was “both massive and complex,” “[i]t was not
so complicated . . . as to prevent the jury from separating the evidence and
properly applying it only to those against whom it was offered.” Manzella, 782
F.2d at 540. Moreover, as noted above in our discussion of the conspiracy
instruction, the district court “explicitly instructed the jury to consider each
37
offense separately and each defendant individually.”18 See id. Limiting
instructions such as these are generally “sufficient to prevent the threat of
prejudice resulting from unsevered trials.” See Massey, 827 F.2d at 1005; see
also United States v. Mitchell, 484 F.3d 762, 775–76 (5th Cir. 2007), cert. denied,
128 S. Ct. 297 (2007) and 128 S. Ct. 869 (2008). Therefore, the district court did
not abuse its discretion in denying the motions to sever.
B. The Speedy Trial Act
Whitfield argues that the district court violated his right to a speedy trial
under the Speedy Trial Act, 18 U.S.C. §§ 3161(c)(1), et seq. (2000).19 Whether a
district court has complied with the Speedy Trial Act is a matter of law subject
to de novo review. United States v. Jackson, 30 F.3d 572, 575 n.2 (5th Cir.
1994).20
The Speedy Trial Act requires that a defendant be tried “within seventy
days from the filing date (and making public) of the information or indictment,
or from the date the defendant has appeared before a judicial officer of the court
in which such charge is pending, whichever date last occurs.” 18 U.S.C. §
3161(c)(1). Delays resulting from the filing and disposition of any pretrial
18
The district court instructed the jury as follows: “[T]he case of each defendant
should be considered separately and individually. The fact that you may find one or more
of the defendants guilty or not guilty as to any of the crimes charged should not control
your verdict as to any other crime or as to any other defendant. You must give separate
consideration to the evidence as to each defendant.” This instruction tracked the precise
language of the Fifth Circuit Pattern Jury Instructions for cases involving multiple
defendants and multiple counts. See FIFTH CIRCUIT PATTERN JURY INSTRUCTIONS
(Criminal Cases) § 1.23 (2001).
19
The Speedy Trial Act was amended effective October 13, 2008. Therefore, we refer
to the 2000 version of that statute, which was applicable at the time of the trial.
20
To the extent that Minor purports to adopt Whitfield’s argument on this point, he
is precluded from doing so by his failure to move for dismissal under the Speedy Trial Act
prior to trial. See 18 U.S.C. § 3162(a)(2) (2000).
38
motions are excluded from calculation. Id. § 3161(h)(1)(F). In addition, the
statute excludes
Any period of delay resulting from a continuance granted by any
judge on his own motion or at the request of the defendant or his
counsel or at the request of the attorney for the Government, if the
judge granted such continuance on the basis of his findings that the
ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial. No such
period of delay resulting from a continuance granted by the court in
accordance with this paragraph shall be excludable under this
subsection unless the court sets forth, in the record of the case,
either orally or in writing, its reasons for finding that the ends of
justice served by the granting of such continuance outweigh the best
interests of the public and the defendant in a speedy trial.
Id. § 3161(h)(8)(A).
As Whitfield does not claim that any non-excludable days occurred after
he filed his motion to dismiss on June 1, 2006, we accordingly confine our
consideration to the period between Whitfield’s arraignment and the filing of his
motion to dismiss. The Government filed the Third Superseding Indictment on
December 6, 2005, and Whitfield was arraigned on December 20, 2005.
However, in response to a pretrial motion filed by the Government, the district
court also entered an ends-of-justice finding under section 3161(h)(1)(F) to allow
for a thirty-day discovery period, which stopped Whitfield’s speedy trial clock
until January 19, 2006. Minor was not arraigned until January 6, 2006, and the
district court entered a similar order excluding another thirty days, which ended
on February 6, 2006. Section 3161(h)(7) excludes a “reasonable period of delay
when the defendant is joined for trial with a codefendant as to whom the time
for trial has not run and no motion for severance has been granted.” Therefore,
Whitfield’s speedy trial clock did not begin to run until February 6, 2006, when
Minor’s commenced. See United States v. Bieganowski, 313 F.3d 264, 281 (5th
39
Cir. 2002); see also United States v. Bermea, 30 F.3d 1539, 1567 (5th Cir. 1994)
(“[T]he excludable delay of one codefendant may be attributed to all
defendants.”)
On February 9, 2006, Minor filed a motion for continuance, arguing that
two of his attorneys, who were new to the case and hired as lead counsel for the
second trial, had scheduling conflicts and needed more time to prepare for trial
in this “manifestly complex proceeding.” On February 10, with the consent of
Whitfield’s counsel, the district court granted the motion, delaying the trial date
from March 6, 2006, until August 14, 2006. The district court stated its reasons
on the record as follows: (1) to avoid the attorneys’ scheduling conflicts; and (2)
to “give new counsel . . . June and July to prepare for the upcoming trial.”
Whitfield claims that the district court’s statement was insufficient to
satisfy section 3161(h)(8)(A)’s requirement that the judge make an ends-of-
justice finding on the record. We disagree. Our decisions do not require that the
phrase “ends of justice” always be used, so long as the district court offers an
acceptable reason for granting the continuance on the record. See United States
v. Edelkind, 525 F.3d 388, 397 (5th Cir. 2008) (holding that the district court’s
finding on the record that the case was complex was sufficient to satisfy section
3161(h)(b)(A)); see also Bieganowski, 313 F.3d at 282 (same). Section
3161(h)(8)(B) lays out “[t]he factors, among others, which a judge shall consider
in determining whether to grant a continuance under [section 3161(h)(8)(A)],”
including:
“(ii) Whether the case is so unusual or so complex, due to the
number of defendants, the nature of the prosecution, or the
existence of novel questions of fact or law, that it is unreasonable to
expect adequate preparation for pretrial proceedings or for the trial
itself within the time limits established by this section.
****
(iv) Whether the failure to grant such a continuance in a case which,
40
taken as a whole, is not so unusual or so complex as to fall within
clause (ii), . . . would deny counsel for the defendant . . . the
reasonable time necessary for effective preparation, taking into
account the exercise of due diligence.”
18 U.S.C. § 3161(h)(8)(B)(ii), (iv) (2000). We conclude that the district court’s
findings were sufficient under either one of the above provisions. Certainly, this
case is facially and actually complex. However, even if the district court did not
explicitly state as much when granting the continuance on February 10, 2006,
the court’s reasoning falls squarely within the factor listed in section
3161(h)(8)(B)(iv). Because “the [Speedy Trial] Act excludes from the calculation
of the seventy-day limit any delay resulting from the proper grant of a
continuance requested by a codefendant,” Bieganowski, 313 F.3d at 281, the days
between the district court’s February 10 order granting a continuance until
August 14, 2006, and Whitfield’s motion for dismissal on June 1, 2006, were
properly excluded under section 3161(h)(8)(A).21
Our holding is further buttressed by the fact that Whitfield consented to
the continuance.22 As we held in United States v. Westbrook, a defendant “may
not seek ‘to turn the benefit he accepted into an error that would undo his
conviction. . . .’” 119 F.3d 1176, 1188 (5th Cir. 1997) (quoting United States v.
Eakes, 783 F.2d 499, 503 (5th Cir. 1986)). “The Speedy Trial Act entitles
criminal defendants to adequate time for preparing a defense, but that right may
not be used as a two-edged sword in this fashion.” Id. Thus, we follow the
“sensible maxim that defendants ought not to be able to claim relief on the basis
21
As our holding in regard to the February 10, 2006 continuance is dispositive on
this issue, we decline to address Whitfield’s arguments regarding the other continuances
that were subsequently granted.
22
Whitfield’s attorney stated on the record as follows: “Your honor, we’re not going to
oppose their request to set the case in August, and we will be ready in August if that’s
when you set it.”
41
of delays which they themselves deliberately caused.” United States v. Kington,
875 F.2d 1091, 1108 (5th Cir. 1989). As Whitfield agreed to the continuance
below, he is precluded from now challenging it on appeal.23
Therefore, because (1) the district court made a sufficient ends-of-justice
finding on the record; and (2) Whitfield consented to the continuance, we find no
violation of the Speedy Trial Act.
C. Errors in the indictment and grand jury testimony
On March 16, 2007, after the trial had commenced, Whitfield filed a
“Motion to Dismiss the Indictment for Prosecutorial Misconduct and
Presentation of False Testimony before the Grand Jury.” The district court
denied the motion, and Whitfield now claims error. Whitfield contends that his
Fifth Amendment due process rights were violated when the Government
presented a factually incorrect indictment and elicited “false” testimony before
the grand jury.
As the Government freely admits, the indictment in this case contained a
factual error concerning the effect of the fiat signed by Whitfield on February 10,
1999. The indictment charged that the fiat “authoriz[ed] the immediate
payment of money for medical expenses” to Minor’s client, Archie Marks. In
actuality, the fiat merely granted an expedited hearing in Whitfield’s court to set
a trial date. Although no transcript of the grand jury proceedings appears in the
trial record, Whitfield asserts, and the Government does not deny, that Special
Agent Steve Callender of the FBI testified that the fiat “was presented to Judge
Whitfield in order to get payment for medical expenses.”24
23
Moreover, had Whitfield not consented to the continuance the district court might
well have stated its reasons for granting it in greater detail and formality.
24
We note that this statement, while perhaps not entirely accurate, was not
necessarily false, as Marks requested an expedited hearing on the alleged basis that he
42
FED. R. CRIM. P. 12(b)(3)(B) provides that a “motion alleging a defect in the
indictment” must be made before trial. Failure to comply with this rule
generally constitutes waiver. United States v. Cathey, 591 F.2d 268, 271 n.1 (5th
Cir. 1979). However, a court may excuse a defendant’s failure to timely file a
motion for “good cause.” Id.; FED. R. CRIM. P. 12(e). In this case, Whitfield was
furnished with a copy of the indictment and a transcript of the grand jury
proceedings well before trial, therefore he has no excuse for failing to move for
dismissal prior to trial. See Cathey, 591 F.2d at 271 n.1 (finding good cause for
untimely motion where defendant did not receive transcript of grand jury
testimony until after trial had begun). As such, we find no error in the district
court’s refusal to grant Whitfield’s untimely motion.
Further, “a district court may not dismiss an indictment for errors in
grand jury proceedings unless such error prejudiced the defendant[].” Bank of
Nova Scotia v. United States, 108 S. Ct. 2369, 2373 (1988). Whether or not
prosecutorial misconduct prejudiced a defendant depends on whether it affected
the grand jury’s decision to indict. Id. at 2378. In this case, the grand jury was
presented with substantial evidence in support of the Government’s allegations
against Whitfield. The minor factual error concerning the effect of the fiat was
inconsequential. Under the Government’s theory of the case, the true
significance of the fiat was not that it (eventually) allowed Marks to collect
money for medical expenses. Rather, by filing the motion before Whitfield
specifically, Minor signified that the time had come for Whitfield to fulfill his
part of the bargain. And by issuing the fiat and setting a hearing in his own
court, Whitfield understood that he was bypassing court procedure and
effectively assigning the case to himself. Thus, we believe that the error in the
needed to and could thereby obtain funds to pay his medical expenses as soon as possible.
43
indictment and Callender’s testimony were not so significant as to “substantially
influence” the grand jury’s decision to indict Whitfield and thereby cause him
prejudice.25 See id.
As Whitfield’s motion to dismiss was untimely and, in any event, he was
not prejudiced by the error in the indictment or grand jury testimony in
question, we find no reversible error.26
D. Juror Excusal
Appellants assert that the district court erred by excusing Juror 81 “based
solely on her religious belief.” Determinations as to the general qualifications
of jurors are reviewed for abuse of discretion. United States v. McCord, 695 F.2d
823, 828 (5th Cir. 1983). The district court has discretion to excuse a juror for
cause when the court “‘is left with the definite impression that a prospective
juror would be unable to faithfully and impartially apply the law.’” United
States v. Flores, 63 F.3d 1342, 1355 (5th Cir. 1995) (quoting Wainwright v. Witt,
105 S. Ct. 844, 853 (1985)). Moreover, there is generally no basis for reversal
unless appellants show that the jurors who served on the panel were not
impartial. United States v. Jensen, 41 F.3d 946, 960 (5th Cir. 1994).
25
In fact, as the Government points out, the error in the indictment and Callender’s
“false” testimony actually helped Whitfield at trial by allowing him to argue prosecutorial
misconduct on the part of the Government. While cross-examining Diamond Offshore’s
counsel, Whitfield’s attorney clearly demonstrated to the jury that the indictment was
inconsistent with the fiat. In closing, Whitfield’s attorney repeatedly offered the error in
the indictment and Callender’s statement to the grand jury as evidence that the
prosecution was mishandled.
26
Whitfield also urges that the district court erred in providing the indictment to the
jury without redacting paragraph 14 of Count One, that is, the statement regarding the fiat
in Peoples Bank. While this paragraph was indeed incorrect, there is no indication that any
defendant requested that the section be excised. Since the offending provision is just one
sentence in a thirty-one page indictment, and because the jury was made aware of the error
through both testimony and closing argument, it was not prejudicial. Thus, we find no
reversible error.
44
In questioning during voir dire, Juror 81 stated that her religious beliefs
prevented her from passing judgment on others. As a result, the district court
excused her from the jury panel, stating that “[t]his court is going to respect her
religious belief and not force her to violate her religious belief.” This was not an
abuse of discretion, see United States v. Pappas, 639 F.2d 1, 4 (1st Cir. 1981), nor
have appellants shown that the jury that they received was not impartial. We
find no reversible error.
V. Evidentiary rulings
Appellants allege numerous points of error in relation to the district
court’s evidentiary rulings at trial. Apparently in an attempt to demonstrate
prejudice on the part of the district court, they devote significant energy to
juxtaposing the district court’s rulings in the first trial with its rulings in this
the second trial. As the district court was not bound in any way by its
evidentiary rulings in the first trial, we consider the district court’s rulings in
the second trial on their own merit.
We review evidentiary rulings for abuse of discretion. United States v.
Ollison, 555 F.3d 152, 161 (5th Cir. 2009). “Even if the district court errs in its
evidentiary ruling, the error can be excused if it was harmless.” Id.; see also
FED. R. EVID. 103(a) (“Error may not be predicated on a ruling which admits or
excludes evidence unless a substantial right of the party is affected. . . .”). “‘A
non-constitutional trial error is harmless unless it had substantial and injurious
effect or influence in determining the jury’s verdict.’” Id. at 162 (quoting United
States v. Hart, 295 F.3d 451, 454 (5th Cir. 2002)). Although each appellant
focused on different evidentiary rulings in their briefs, many of those arguments
were also adopted by their fellow appellants. For simplicity’s sake, we have
grouped the alleged points of error according to the briefs in which they were
primarily argued.
45
A. Minor’s evidentiary claims
Minor contends that the district court prevented him from rebutting
criminal intent by refusing to allow testimony or otherwise admit evidence
regarding the following subjects: his preexisting personal relationship with
Whitfield and Teel; the prominent role of attorney contributions in Mississippi
state judicial elections; his expertise in Jones Act and insurance litigation; his
practice of guaranteeing loans to friends; his filing of a potentially valuable case
in a court other than Whitfield’s during the time of the alleged bribery scheme;
and the legal correctness of Whitfield’s decision in Marks and Teel’s decision in
Peoples Bank.
I. Minor’s relationship with Whitfield and Teel
In regard to Minor’s relationship with Whitfield and Teel, the only specific
point of error alleged is the district court’s refusal to allow Minor’s office
manager, Janet Miller, to testify as to whether Minor and Whitfield served
together in any professional or community organizations. However, the record
is replete with witness testimony and arguments by Minor’s counsel highlighting
Minor’s long-standing relationship with both Whitfield and Teel. Therefore,
even assuming the district court abused its discretion, it was harmless because
the evidence on this point was cumulative.
ii. Attorney campaign contributions
Minor also asserts that the district court abused its discretion in refusing
to admit an exhibit indicating that more than half of the contributions to the
1998 election campaigns for Mississippi chancery court and circuit court
candidates originated with attorneys. However, on cross-examination, Teel’s
attorney elicited testimony from the Executive Director on the Mississippi
Commission on Judicial Performance supporting the conclusion that “most of the
contributions to judicial candidates come from attorneys.” Therefore, to the
46
extent that this information was relevant to Minor’s intent, appellants were not
prejudiced by the exclusion of the exhibit.
iii. Minor’s legal expertise
Likewise, the district court did not abuse its discretion in excluding
evidence that Minor was an expert in Jones Act and insurance litigation. To the
extent that it was relevant, Minor’s attorney made this point when he elicited
testimony from Diamond Offshore’s counsel in the Marks case indicating that
Minor had a “very successful practice” and was a “very skilled and competent
trial lawyer.”
iv. Minor’s history of loan guarantees
Minor alleges the district court abused its discretion when it prevented
John Walker, a Mississippi attorney and colleague of Minor’s, from testifying
that Minor had guaranteed a loan for him in the past. The district court
concluded that the testimony was irrelevant. We have held that “evidence of
noncriminal conduct to negate the inference of criminal conduct is generally
irrelevant.” United States v. Dobbs, 506 F.2d 445, 447 (5th Cir. 1975).
Moreover, even if we were to assume that the loan was relevant to Minor’s
intent, Andy Carpenter, the loan officer at Peoples Bank who handled the loan
to Walker (in addition to the Whitfield and Teel loans), testified that Minor had
guaranteed a number of loans for others, including employees and Walker’s law
firm.27 Further, Miller testified that Minor often guaranteed loans to his
employees, thus exhibiting a “pattern of guaranteeing bank loans out of
friendship.” (SROA Vol. 99 at 4175). Therefore, Walker’s testimony in regard
to the loan guarantee would have been cumulative and appellants were not
harmed by its exclusion.
27
Minor’s attorney was also permitted to reiterate this point in his closing argument.
47
v. Other suit not filed in Whitfield’s court
Minor also claims that the district court erred in refusing to allow his
attorney to elicit testimony that Minor & Associates could have, but did not, file
the most significant and potentially lucrative case it was working on at the time
of the alleged conspiracy in Whitfield’s court. The district court excluded this
evidence as irrelevant. As stated above, evidence of noncriminal activity is
generally irrelevant to rebut criminal intent. See Dobbs, 506 F.2d at 447. The
district court did not abuse its discretion.
vi. Appellants’ “expert” witnesses
Finally, Minor alleges that the district court committed error in excluding
the testimony of two expert witnesses, attorneys James George and Alben
Hopkins, who would have testified that Whitfield and Teel decided the Marks
and Peoples Bank cases correctly. In a supplemental expert report filed by
Minor, George indicated that he intended to testify on the “history of
deliberations” of the Mississippi Supreme Court during its consideration of the
Marks case on appeal. The district court initially refused to certify George under
FED. R. EVID. 702 and the standard laid out in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796–98 (1993), concluding that George’s
testimony would attempt to speculate on the mental impressions of the
Mississippi Supreme Court, which were better expressed through that court’s
own published opinion in Marks. In offering proffer testimony, George disclosed
his intent to also discuss the propriety of Whitfield’s rulings in Marks.
Acknowledging that the expert report did not allude to those matters, the
defense nevertheless sought to elicit that testimony as rebuttal evidence. The
district court refused, concluding that the correctness of Whitfield’s ruling Marks
was an issue in the first trial and thus was certainly expected to be a point of
48
contention in the second trial. Therefore, by failing to disclose these matters as
required under FED. R. CRIM. P. 16(b)(1)(C), the district court found that Minor
could not elicit that testimony at trial.
The district court did not abuse its discretion in excluding George’s
testimony. The court was justified in concluding that George’s testimony would
not assist the jury and was founded on unreliable methodology. See Daubert,
113 S. Ct. at 2796. As to George’s opinion regarding the correctness of Whitfield’s
rulings in Marks, the district court did not abuse its discretion in preventing
appellants from raising new matters that were not disclosed in George’s expert
report. See FED. R. CRIM. P. 16(b)(1)(C).
Hopkins intended to testify that Teel had ruled correctly in Peoples Bank.
The district court refused to certify Hopkins because his testimony: (1) would not
help the jury in resolving the ultimate issue in the case; (2) would violate FED.
R. EVID. 704(b), which prohibits expert witnesses from testifying as to the
criminal intent of the defendant; (3) would ask the jury to find contrary to a
holding of the Mississippi Supreme Court; and (4) was based on “suspicious”
methodology. Appellants’ briefs provide no specific arguments as to why the
district court erred in excluding Hopkins’ testimony. Therefore, they have
waived this issue on appeal. See Proctor & Gamble, 376 F.3d at 499 n.1.
B. Whitfield’s evidentiary claims
Whitfield claims that the district court erred in: (1) excluding the billing
records of Richard Salloum, counsel for Diamond Offshore in Marks; (2) denying
appellants access to an FBI report made after interviewing Radlauer; (3)
admitting the transcript from his divorce proceeding; and (4) allowing expert
testimony from Government witnesses designated as fact witnesses; (5)
admitting a summary witness and summary charts offered by the Government.
49
I. Salloum’s billing records
Whitfield argues that the district court violated his rights under the
Confrontation Clause of the Sixth Amendment when it excluded Salloum’s
billing records from his representation of Diamond Offshore in Marks.
A defendant is granted substantial leeway in cross-examining a witness
to discover bias. E.g., United States v. Anderson, 933 F.2d 1261, 1276 (5th Cir.
1991). However, the Supreme Court has clearly stated:
“It does not follow, of course, that the Confrontation Clause of the
Sixth Amendment prevents a trial judge from imposing any limits
on defense counsel’s inquiry into the potential bias of a prosecution
witness. On the contrary, trial judges retain wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally
relevant. And as we observed earlier this Term, ‘the Confrontation
Clause guarantees an opportunity for effective cross-examination,
not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’”
Delaware v. Van Arsdall, 106 S. Ct. 1431, 1435 (1986) (quoting Delaware v.
Fensterer, 106 S. Ct. 292, 295 (1985) (per curiam) (emphasis in original)).
Appellants were permitted to cross-examine Salloum as to whether he was
billing Diamond Offshore for the time he spent testifying at trial. Salloum was
unsure as to whether he would be charging Diamond Offshore for his time, but
he did admit to billing them for his legal services in the past. The district court
concluded that evidence of the precise amount that Salloum’s firm was paid in
Marks was irrelevant.
We agree. The exact amount of fees that Salloum’s firm charged its client
for its services in the Marks case had little or no bearing on the proceedings
below. The district court did not abuse its discretion in excluding that
50
information from cross-examination.
ii. Denial of access to FBI report
Whitfield claims that the district court erred in refusing to force the
Government to produce and in failing to admit into evidence a “302” report
created by the FBI following an interview conducted with Leonard Radlauer
during the FBI’s investigation of the Whitfield loan. Whitfield contends that
Radlauer’s testimony at the second trial contradicted his testimony before the
grand jury and at the first trial, therefore he should been allowed to use the
report for impeachment. In fact, Whitfield never requested that the FBI report
be admitted into evidence. Therefore, he may not now claim error in respect to
the report not being admitted.28 See Montemayor, 703 F.2d at 114 n.7. Rather,
during a recess in the cross-examination of Radlauer, Whitfield’s attorney
requested that the district court review the report in camera to determine
whether it contained any statements that were inconsistent with Radlauer’s
testimony at trial. When Whitfield sought to subpoena the FBI agent, the
Government provided the district court with the report. The district court
reviewed the report, and, finding no discrepancies, declined to disclose its
contents to the defense.
Where a district court has reviewed FBI reports in camera and determined
that the material was not discoverable, we review only for clear error. See
United States v. Williams, 998 F.2d 258, 269 (5th Cir. 1993). After reviewing the
record, we find nothing to suggest that the district court’s ruling was clearly
erroneous. See id. Moreover, Whitfield was free to use Radlauer’s sworn
28
In any event, as the statements contained in that report were those of the FBI
agent who made the report (who did not testify) and not Radlauer, they were inadmissable
hearsay to the extent that Whitfield wished to offer them as truth of the matters asserted
(e.g., what Radlauer stated) therein. FED. R. EVID. 801.
51
testimony from the previous proceedings to impeach him during cross-
examination at the second trial. See FED. R. EVID. 801(d)(1). Defense counsel
was also permitted to, and did, cross-examine Radlauer concerning his
statements to the FBI. We find no clear error.
iii. Whitfield Divorce Transcript
Whitfield asserts that the district court abused its discretion by admitting
the transcript from his 1999 divorce proceedings, in which he testified falsely
that he was the only guarantor on the $40,000 campaign loan and that he had
not contributed the purchase of the home he shared with his then-girlfriend.
Whitfield claims this evidence was irrelevant and prejudicial. We disagree. It
was relevant because it helped the government establish Whitfield’s culpable
mental state and the pattern of deception surrounding the loans he accepted
from Minor. The district court did not abuse its discretion in admitting the
transcript.
iv. Government “expert” witnesses
Whitfield argues that the district court erred in allowing Richard Salloum,
Wayne Drinkwater, and Leonard Radlauer to offer expert testimony in regard
to the legal and ethical issues relevant to this case when they were not
designated as experts by the Government. The record reveals that the witnesses
provided fact testimony, not expert testimony under FED. R. EVID. 702.
Moreover, Whitfield provides no citations to the “expert” testimony offered by
these witnesses. Accordingly, this argument is waived. See De la O v. Hous.
Auth. of City of El Paso, Tex., 417 F.3d 495, 501 (5th Cir. 2005).
v. Summary charts and summary witness for the Government
Finally, Whitfield contends that the district court abused its discretion by
admitting charts summarizing the financial transactions at issue in the case and
by allowing Kim Mitchell, a summary witness for the Government, to explain
52
those charts to the jury. FED. R. EVID. 1006 provides in part: “The contents of
voluminous writings, recordings, or photographs which cannot conveniently be
examined in court may be presented in the form of a chart, summary, or
calculation.”
This Court has properly expressed some reluctance to generally endorse
the use of summary evidence. See United States v. Fullwood, 342 F.3d 409,
413–14 (5th Cir. 2003) (“The use of summary evidence serves an important
purpose, but that purpose is not simply to allow the Government to repeat its
entire case-in-chief shortly before jury deliberations. Moreover, there are
obvious potential dangers associated with its use.”). However, a district court
does not abuse its discretion by admitting summary testimony where the
evidence presented is voluminous and complex. See Ollison, 555 F.3d at 162.
Describing the admission of summary charts and use of summary witnesses, this
court has explained:
Rule 1006 allows admission of summaries when (1) the evidence
previously admitted is voluminous, and (2) review by the jury would
be inconvenient. A summary may include only evidence favoring
one party, so long as the witness does not represent to the jury that
he is summarizing all the evidence in the case. Summary evidence
must have an adequate foundation in evidence that is already
admitted, and should be accompanied by a cautionary jury
instruction. Full cross-examination and admonitions to the jury
minimize the risk of prejudice.
United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001) (internal citations
omitted).
In this case, the testimony of Mitchell and the admission of summary
charts was neither cumulative nor prejudicial. The information presented to the
jury synthesized bank records and checks that were properly admitted, in order
to explain the voluminous records supporting the transfer of money from Minor
53
to Whitfield and Teel. Appellants were permitted to cross-examine Mitchell
fully. Whitfield does not contend that the charts were incorrect or misleading.
Such evidence does not implicate this Court’s concerns in Fullwood, since the
exhibits and testimony were not a summary of the Government’s case; instead,
they summarized complex records and documents for the benefit of the jury. In
addition, the district court properly instructed the jury as to the limited purposes
of the summary charts, minimizing any risk of prejudice.29 There was no abuse
of discretion.
C. Teel’s evidentiary claim — Drinkwater Report
Teel claims that the district court abused its discretion by excluding a
pretrial report prepared by Wayne Drinkwater while representing USF&G in
Peoples Bank. The report contained Drinkwater’s opinions regarding the
strengths and weaknesses of USF&G’s case in Peoples Bank, based upon the
status of the law in Mississippi at the time, potentially damaging internal emails
sent by USF&G employees, the quality of Marks’ attorneys, and his view of then-
Judge Teel. At trial, Teel moved to admit the report as a business record under
FED. R. EVID. 803(6). The district court determined that the report was
inadmissable, because it contained double hearsay in the form of Drinkwater’s
statements recounting the emails by USF&G employees and that the hearsay
problem could not be cured through redaction.
A review of the record demonstrates that appellants’ attorneys were
permitted to fully cross-examine Drinkwater on the substance of his pretrial
report, including his impressions regarding the damaging emails discussed
29
Upon admitting the Government’s summary charts, the district court instructed
the jury as follows: “[C]harts and summaries are valid only to the extent that they
accurately reflect the underlying supporting evidence . . . . So these charts should be
viewed in that manner, and you should give them only such weight as you think they
deserve.”
54
therein. Therefore, even assuming that the district court erred in refusing to
admit the report itself, we find no harmful error substantially affecting
appellants’ rights.
D. Conclusion
The district court did not err in admitting any of the challenged evidence
offered by the Government in this case. As to the evidence that was excluded,
it was either irrelevant or cumulative. To the extent that the district court may
have abused its discretion, we find no harmful error that affected any
substantial rights of the appellants. See Ollison, 555 F.3d at 161; see also FED.
R. EVID. 103(a).
VI. Sentencing
Appellants assert that the district court committed several sentencing
errors. A district court’s legal conclusions, including its interpretation of the
United States Sentencing Guidelines (U.S.S.G. or Guidelines), are reviewed de
novo. See United States v. Galvan-Revuelta, 958 F.2d 66, 68 (5th Cir. 1992).
This court reviews a district court’s factual determinations in applying the
Guidelines for clear error. United States v. Solis-Garcia, 420 F.3d 511, 514 (5th
Cir. 2005). “There is no clear error if the district court’s finding is plausible in
light of the record as a whole.” United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008) (quotation marks omitted).
As stated above, with this decision we reverse all counts related to 18
U.S.C. § 666, including Count Two (Minor and Teel conspiracy), Count Eleven
(Whitfield federal program bribery), Count Twelve (Minor federal program
bribery), Count Thirteen (Teel federal program bribery), and Count Fourteen
(Minor federal program bribery). Therefore, as each of the appellants has had
at least one conviction overturned, we find it appropriate to remand to the
district court with instructions to resentence all appellants on all remaining
55
counts. Had the judge known these counts would no longer be involved he might
have analyzed the matter differently. See United States v. Puig-Infante, 19 F.3d
929, 950 (5th Cir. 1994). We note that, in case of Minor, because he received his
longest sentence for his RICO conviction (one hundred and thirty-two months),
remand might but will not necessarily result in a reduced sentence. However,
Whitfield was sentenced to one hundred and ten months under his federal
program bribery conviction and only sixty months under his convictions for
conspiracy and deprivation of honest services through mail fraud. Similarly,
Teel was sentenced to seventy months under his federal program bribery
conviction and only sixty months under his convictions for conspiracy and mail
fraud. As a result, Whitfield and Teel’s sentences likely will be reduced in some
fashion.
Additionally, we address the following alleged points of error in order to
provide some guidance to the district court on remand.
A. Ex post facto sentencing concerns
Before we consider appellants’ claims of error, we address the
Government’s contention that any error in sentencing was harmless because the
district court incorrectly applied the more lenient United States Sentencing
Guidelines from 2001 rather than the Guidelines as amended in 2006. The
district court concluded that, due to ex post facto concerns, he was required to
sentence appellants according to the version of the Guidelines in effect at the
time that appellants committed the offenses underlying the sentences being
imposed. See U.S. CONST. art. I, § 9, cl. 3; see also Collins v. Youngblood, 110
S. Ct. 2715, 2721 (1990). Relying on non-binding authority, the Government
contends that ex post facto clause has no application in the context of the post-
56
Booker30 advisory Guidelines. See United States v. Demaree, 459 F.3d 791, 795
(7th Cir. 2006); United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006);
but see United States v. Turner, 548 F.3d 1094, 1098–1100 (D.C. Cir. 2008);
United States v. Carter, 490 F.3d 641, 643 (8th Cir. 2007).
We see no need to now address this point. “The Guidelines are not only
not mandatory on sentencing courts; they are also not to be presumed
reasonable.” Nelson v. United States, 129 S. Ct. 890, 892 (2009). The fact that
district court used the 2001 Guidelines instead of the 2006 Guidelines does not
necessarily mean that appellants were not prejudiced by any alleged errors in
their sentencing. Thus, we now turn to appellants’ arguments regarding their
sentences, using 2001 Guidelines as applied by the district court to guide our
analysis.
B. Fact-finding at sentencing
Appellants claim that the district court violated their Sixth Amendment
right to trial by jury by basing their sentencing Guidelines ranges on facts not
found by a jury beyond a reasonable doubt. This argument has no merit after
the Supreme Court’s decision in Booker rendering the Guidelines advisory. See
United States v. Mares, 402 F.3d 511, 518 (5th Cir. 2005); see also Mitchell, 484
F.3d at 776. As we explained in Mares,
“Booker contemplates that, with the mandatory use of the
Guidelines excised, the Sixth Amendment will not impede a
sentencing judge from finding all facts relevant to sentencing. The
sentencing judge is entitled to find by a preponderance of the
evidence all the facts relevant to the determination of a Guideline
sentencing range and all facts relevant to the determination of a
non-Guidelines sentence.”
Id. (internal citations omitted). “Booker error occurs when the sentencing judge
30
United States v. Booker, 125 S. Ct. 738 (2005).
57
bound by mandatory [Guidelines] increases the defendant’s sentencing range
based on facts not found by the jury or admitted by the defendant.” United
States v. Stephens, 487 F.3d 232, 245–46 (5th Cir. 2007). In this case, the
district court, sentencing long after Booker, clearly understood that the
Guidelines were advisory only; therefore, it did not err in finding facts relevant
to sentencing.
C. Bribery Guideline
Appellants argue that, because the jury charge permitted them to be
convicted of federal offenses based upon mere gratuity and not bribery, the
district court erred in using the Guideline applicable to bribery-related offenses,
U.S.S.G. § 2C1.1, rather than the Guideline applicable to gratuity offenses,
U.S.S.G. § 2C1.2.31 As stated above, we conclude that the district court
adequately instructed the jury on bribery. Accordingly, because the jury found
appellants guilty on a theory of bribery rather than gratuity, the district court
did not err in relying on U.S.S.G. § 2C1.1.
D. Loss calculations in regard to the Marks case
Minor and Whitfield claim that the district court erred in including the full
amount of the original award in Marks ($3.75 million) in their respective loss
calculations. U.S.S.G. § 2C1.1(b)(2) provides for an enhanced sentence if the
“value of the payment” or “the benefit received or to be received in return for the
payment” exceeds $5,000. The level of enhancement is dictated by the table in
U.S.S.G. § 2B1.1. Application Note 2 of U.S.S.G. § 2B1.1 provides that the loss
31
U.S.S.G. § 2C1.1 applies to “a person who offers or gives a bribe for a corrupt
purpose, such as inducing a public official to participate in a fraud or to influence his official
actions, or to a public official who solicits or accepts such a bribe.” U.S. SENTENCING
GUIDELINES MANUAL § 2C1.1 cmt. background (2001). In contrast, the background for
gratuity under U.S.S.G. § 2C1.2 states that “A corrupt purpose is not an element of this
offense.” Id. § 2C1.2 cmt. background (2001).
58
should be determined by the greater of the actual loss or intended loss, which is
defined in relevant part as “the pecuniary harm that was intended to result from
the offense.” The amount of the benefit to be received is a finding of fact that we
review for clear error, and it need not be determined with precision. United
States v. Griffin, 324 F.3d 330, 365–66 (5th Cir. 2003).
Before sentencing, the Mississippi Supreme Court reduced the damages
award in Marks from $3.64 million to $1.64 million, 2003 Miss. LEXIS 88, at
*36–37, and later vacated the district court’s judgment altogether, 2007 Miss.
LEXIS 237, at *1. As Diamond Offshore has suffered no actual loss, the
presentence report (PSR) recommended that the district court use the intended
loss, which the PSR concluded was the award in Marks as reduced by the
Mississippi Supreme Court. The district court rejected this approach and
instead determined that the intended loss was $3.75 million, which was the
amount that Whitfield originally awarded to Marks before reducing the award
to $3.64 million in response to Diamond Offshore’s post-trial motions.
As we are remanding this case for resentencing, we need not decide
whether the district court clearly erred in calculating the loss associated with
the Marks case. However, upon remand, we suggest that the district court might
more properly rely on the actual amount awarded by Whitfield in the Marks case
($3.64 million) adjusted by taking into account a reasonable estimate of
whatever intrinsic value that case may have had if litigated before an impartial
judge.
E. Restitution award to USF&G
The district court awarded USF&G $1.5 million in restitution, holding
Minor and Teel jointly and severally liable for the full amount. We conclude that
this was not error. If Teel had stayed Peoples Bank as requested until the
59
Mississippi Supreme Court decided Omnibank, USF&G would have had no need
to settle the case. Therefore, the $1.5 million restitution award was appropriate.
F. Fine applied to Minor
Minor was fined $250,000 per count for a total fine of $2.75 million. Minor
contends that the district court abused its discretion by levying fines well above
the range recommended in the Guidelines, which was $17,500 to $175,000.
U.S.S.G. § 5H1.10 advises that the defendant’s “socio-economic status” should
not be taken into account when setting a fine. Nevertheless, the district court
decided to vary from the Guidelines in order to ensure that the fine was
sufficiently punitive to Minor in light of his substantial assets. 18 U.S.C. §
3572(a)(1) permits a sentencing court to consider “the defendant’s income,
earning capacity, and financial resources” when imposing a fine. Because we are
remanding this case for resentencing, we need not decide whether the district
court abused its discretion in setting Minor’s fine. However, as we reverse three
of the counts upon which the fine was based, we conclude that some level of a
reduced fine on remand may be appropriate.
G. Obstruction of justice enhancement
Minor and Whitfield argue that the district court, after initially stating its
intention not to apply an obstruction of justice enhancement under U.S.S.G. §
3C1.1, altered course and applied the obstruction enhancement at sentencing.
To the extent that Minor and Whitfield claim that the district court committed
procedural error in failing to give them sufficient notice of its intent to apply an
obstruction enhancement, we presume that any such error will be corrected on
remand.
H. Whitfield’s acceptance of responsibility
Whitfield claims that he should receive a reduced sentence based upon his
acceptance of responsibility. See U.S.S.G. § 3E1.1. “A district court’s
60
determination as to whether a defendant has accepted responsibility is afforded
great deference on review and is reviewed under a standard that is even more
deferential than a pure clearly erroneous standard.” United States v. Cordero,
465 F.3d 626, 630–31 (5th Cir. 2006) (internal quotations omitted). Whitfield
contends that he accepted responsibility by cooperating with the FBI early in the
stages of its investigation before he was indicted. However, Whitfield did not
plead guilty and took his case to trial. Given the wide latitude afforded the
district court on this issue, we clearly cannot say that the district court erred in
refusing to find that Whitfield accepted responsibility for his crimes. However,
we do note that today we reverse two of Whitfield’s convictions. Thus, Whitfield
was not entirely unjustified in challenging the charges brought against him in
court.
I. Downward departure
Whitfield also argues that he should be granted a downward departure
due to his health issues and family obligations. As he will be resentenced on
remand, he may renew these arguments with the district court.
VII. Alleged Government misconduct and request for reassignment
We briefly note that appellants allege that they were wrongfully selected
for prosecution by the Government due to their political affiliations. These
unsubstantiated allegations are tied to no specific errors below, therefore we
decline to address them here.
Further, after thoroughly reviewing the trial transcripts, we are convinced
that Judge Wingate conducted the trial in a fair and impartial manner.
Therefore, we deny appellants’ request that the case be assigned to a different
judge on remand.
VIII. Double Jeopardy
After oral argument herein, Minor and Whitfield moved for leave to file a
61
supplemental brief raising, for the first time, the issue of whether their
prosecution under the Third Superseding Indictment was barred, in whole or in
part by the Double Jeopardy Clause of the Fifth Amendment, more particularly
the collateral estoppel component of that clause exemplified by Ashe v. Swenson,
90 S. Ct. 1180 (1970) and Yeager v. United States, 129 S. Ct. 2360 (2009). We
granted leave to file such briefs.32
Whitfield’s claim is based solely on the jury’s 2005 acquittal of him on
Count Five of the Second Superseding Indictment, a section 1343 charge based
on the August 27, 2002 wire transfer by Radlauer of $118,652.42 from New
Orleans to the Peoples Bank in Biloxi, Mississippi, to pay off Whitfield’s loan
there. Whitfield was not charged with any such offense under the Third
Superseding Indictment, and hence the only possible double jeopardy claim on
Whitfield’s part in that respect is under Ashe’s collateral estoppel doctrine. In
this connection Whitfield claims that his acquittal means that the jury found it
was not proved that he entered into the charged section 1341, section 1343 or
section 1346 scheme with Minor related to depriving the State of Mississippi of
his honest services in the Marks v. Diamond Offshore case.
Minor’s claim is based solely on the jury’s 2005 acquittal of him on Count
Four of the Second Superseding Indictment, a section 1341 charge based on
Whitfield’s September 20, 2002 transmittal of his August 26, 2002 $117,013.12
note to Radlauer in New Orleans. Minor was not charged with any such offense
under the third Superseding Indictment, and hence the only possible double
jeopardy claim on Minor’s part in that respect is under Ashe’s collateral estoppel
32
Our order doing so provides: “Each appellant’s brief authorized hereunder shall
also address whether any such double or collateral estoppel contention has been waived or
forfeited by the appellant in question and whether this court may or should address any
such contention. This order makes no determination of any such matter.” (emphasis
added).
62
doctrine. Minor’s claim is that said acquittal means that the jury found it was
not proved that he entered into the charged section 1341, section 1343 or section
1346 scheme with Whitfield related to depriving the State of Mississippi of
Whitfield’s honest services in the Marks case.
We first conclude that these double jeopardy claims are clearly either
waived or forfeited.
To begin with, these claims were not raised in the trial court.33 The
Supreme Court has made it clear that failure to raise a double jeopardy defense
in the trial court constitutes a waiver thereof. See Peretz v. United States, 111
S. Ct. 2661, 2669 (1991) (“The most basic rights of criminal defendants are . . .
subject to waiver. See, e.g., . . . United States v. Bascaro, 742 F.2d 1335, 1365
(CA 11 1984) (absence of objection is waiver of double jeopardy defense), cert.
33
Minor asserts that double jeopardy was raised by his “Motion Of Defendant Minor
To Dismiss Due To Selective Prosecution And Related Due Process Issues” filed (by his new
counsel) in the district court June 6, 2006. This one sentence motion states that it “hereby
renews, incorporates herein by reference, and asserts as to the pending Third Superseding
Indictment against him, the previous Motion to Reconsider filed in this proceeding on
September 13, 2005" and “renews his previous motion for an evidentiary hearing with
respect to the selective prosecution and related due Process issues raised in each such
previous dismissal motion.” The only defense motion filed on or after the August 12, 2005
verdict to which Minor’s June 6, 2006 motion can reasonably be understood as referring is
Minor’s September 13, 2005 “Motion To Reconsider His Motions To Dismiss For Selective
Prosecution, Vindictiveness, And Other Due Process Violations And Renewed Request For
An Evidentiary Hearing.” That motion makes absolutely no mention of double jeopardy or
collateral estoppel and cites no cases related thereto. We also note that Ashe v. Swenson
collateral estoppel arises under the double jeopardy clause, not the due process clause. See,
e.g., Showery v. Samaniego, 814 F.2d 200, 203 (5th Cir. 1987); Parr v. Quarterman, 472
F.3d 245, 254 (5th Cir. 2006). Further, the district court, after the December 6, 2005 Third
Superseding Indictment was returned, at various pretrial hearings inquired of the parties
what motions were pending, and at no time was any motion mentioned asserting double
jeopardy or collateral estoppel. Nor did the district court after the return of the third
Superseding Indictment ever purport to rule on any matter concerning double jeopardy or
collateral estoppel.
63
denied sub nom. Hobson v. United States . . . 105 S. Ct. 3476 . . . (1985); . . . .”34
We have likewise so held. See, e.g., United States v. Myers, 104 F.3d 76, 79 n.2
(5th Cir. 1997); United States v. Moore, 958 F.2d 646, 650 (5th Cir. 1992);
Grogan v. United States, 394 F.2d 287, 289 (5th Cir. 1967). See also United
States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972); FED. R. CRIM. P. 12(b)(3),
12(e).
The appellants’ failure to raise this issue in their original briefs in this
court (or even in their reply briefs) likewise clearly constitutes a waiver or
forfeiture of their contentions in this respect. See, e.g., Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1993); United States v. Ogle, 415 F.3d 382 (5th Cir. 2005).35
34
In Bascaro, the Eleventh Circuit held:
“We do not, however, reach the merits of Bascaro’s double jeopardy claim.
The issue is raised for the first time on appeal; Bascaro’s double jeopardy
defense was thus waived by his failure to assert it at trial. Grogan v. United
States, 394 F.2d 287, 289 (5th Cir. 1967).” Id. at 1365.
35
We reject the argument of Minor and Whitfield that because this court would have
rejected their claims based on consideration of the counts on which the jury hung in the
2005 trial (see note 12, supra), that this excuses their failure to make any mention of their
double jeopardy-collateral estoppel claims in either their opening or reply briefs in this
court. Appellants rely in this connection on our decision in United States v. Yeager, 521
F.3d 367 (5th Cir., March 17, 2008), reversed. Yeager v. United States, 129 S. Ct. 2360
(June 19, 2009) (certiorari was filed in Yeager July 14, 2008 and was granted November 14,
2008, 129 S. Ct. 593). As the Supreme Court’s opinion in Yeager reflects, there had been
since at least the 1990s a split in the circuits respecting consideration in this context of
counts on which the jury had hung. Id. at 2365. To paraphrase Bousley v. United States,
118 S. Ct. 1604, 1611 (1998), cause excusing failure raise a claim on direct review may not
consist simply of the fact that the claim would have been ‘unacceptable to that particular
count at that particular time.’ (quoting Engle v. Isaac, 102 S. Ct. 1558, 1573 n.35 (1982)).
We frequently have briefs arguing that certain of our controlling precedents have been
incorrectly decided. See, e.g., United States v. Mitchell, 484 F.3d 762, 776 (5th Cir. 2007).
This also necessarily follows from the fact that where a claim on appeal is predicated on a
change in the law following trial and before the decision on direct appeal, the change does
not result in reviewing the claim under Rule 52(a) but rather the claim is reviewed under
Rule 52(b) (at least if timely raised in the court of appeals) with the required plainness of
the error judged under the state of the law at the time the court of appeals acts. See, e.g.,
Johnson v. United States, 117 S. Ct. 1544, 1548-49 (1997).
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We assume, arguendo only, that the claims of Minor and Whitfield in this
respect are merely forfeited, rather than waived, so that they may be reviewed
for plain error under FED. R. CRIM. P. 52(b). See, e.g., United States v. Lewis, 492
F.3d 1219 (11 Cir. en banc, 2007) (reviewing under Rule 52(b) claim of double
jeopardy timely raised on appeal but not raised in the district court, finding no
error). In Yeager the Court stated (129 S.Ct. at 2366-67):
“. . . Ashe [v. Swenson] . . . held that the Double Jeopardy Clause
precludes the Government from relitigating any issue that was
necessarily decided by a jury’s acquittal in a prior trial. . . . Because
the only contested issue at the first trial was whether Ashe was one
of the robbers, we held that the jury’s verdict of acquittal
collaterally estopped the state from trying him for robbing a
different player during the same criminal episode . . . . To decipher
what a jury has necessarily decided, we held [in Ashe] that courts
should ‘examine the record of a prior proceeding, taking into account
the pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict
upon an issue other than that which the defendant seeks to foreclose
from consideration.’ Id. at 444, 90 S. Ct. 1189 (internal quotation
marks omitted). We explained that the inquiry ‘must be set in a
practical frame and viewed with an eye to all the circumstances of
the proceedings.’”
Yeager goes on to hold that the jury’s failure to reach a verdict on any count or
counts may not be considered in determining what the jury necessarily decided
by its acquittal on any other count. Id. at 2367.
It is likewise clear the defendant invoking Ashe has “the burden . . . to
demonstrate that the issue whose relitigation he seeks to foreclose was actually
decided in the first proceeding.” Dowling v. United States, 110 S. Ct. 668, 673
(1990).
Applying the foregoing principles from the Supreme Court’s opinions in
Yeager and Dowling, and reviewing the record of the prior trial, including the
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evidence (which included no testimony from either Minor or Whitfield), jury
charge, and argument of counsel, we conclude that it is certainly not clear or
obvious – as it must be even if the claim is not waived but merely forfeited – that
the jury at the first trial either by its acquittal of Whitfield on Count Five
(section 1343 wire fraud based on Radlauer’s August 27, 2002 wire transfer of
funds to to pay off Whitfield’s loan) necessarily found that Whitfield engaged in
no honest services deprivation scheme with Minor respecting the Marks case, or
that by its acquittal of Minor on Count Four (section 1341 mail fraud based on
Whitfield’s September 27, 2002 transmittal by public carrier of his note to
Radlauer) necessarily found that Minor engaged in no honest services
deprivation scheme with Whitfield respecting the Marks case.
The jury in the first trial was expressly instructed in both Counts Four
and Five that the mailing, carrier transmittal or wiring charged had to be
reasonably foreseeable to each particular defendant. That was not an
uncontested issue in either count. As to Whitfield’s acquittal on Count Five,
relating to the Radlauer August 27, 2002 wire transfer, Whitfield’s counsel in his
closing jury argument specifically urged that this was not reasonably foreseeable
to Whitfield.36 Moreover, neither Whitfield nor Minor has pointed us to any
specified direct evidence that Whitfield had any prior knowledge that such a
wire transfer was contemplated, or of facts that would have beyond reasonable
36
Counsel stated:
“With respect to the wire transfer * * * what evidence is there to indicate that
John Whitfield knew anything about any wire transfer? This is Count 5.
The wire transfer. I mean what evidence did you hear that ever indicated
that the wire system was used in anything – any dealings that John
Whitfield had with Paul Minor? Everything was either paid at the bank, in
person. There is no evidence to indicate that wire was foreseeable or any
payment of any note to anybody anywhere.”
Counsel also argued “[i]f you’ve got a scheme to defraud . . . it has got to be reasonably
foreseeable that something would be mailed.”
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dispute established that on or before August 27, 2002 such a wire transfer was
reasonably foreseeable to him. Similarly as to Minor’s acquittal on Count Four,
relating to the September 20, 2002 carrier transfer to Radlauer of Whitfield’s
promissory note, Minor’s counsel was at great pains to show by cross-
examination of Minor’s office manager, that the Whitfield note which she typed
at Minor’s direction and subsequently left in Minor’s mailbox, was not the same
document (or a xerox or similar copy) as the Whitfield note that Radlauer
received by carrier from Whitfield’s law firm (and although the notes were in
almost identical wording, they were in different type fonts, and that prepared by
Mintor’s office manager was for $119,000, while that received by Radlauer was
for $117,013.12). There is no evidence of how the note form typed by Minor’s
office manager got from Minor’s mailbox to Whitfield or his law firm. There is
no evidence of any oral or written communications between Whitfield and Minor
on this particular note or its transmittal. The jury may have reasonably
concluded that it was not established beyond a reasonable doubt that Whitfield
would reasonably foresee that some note other than what his office manager had
prepared would be mailed or transmitted by carrier to Radlauer.
Certainly no plain error (and indeed we believe no error at all) is shown
respecting these belated double jeopardy-collateral estoppel claims. Those
claims are accordingly rejected.
CONCLUSION
As to Paul Minor, we REVERSE his conviction for conspiracy to commit
federal program bribery under Count Two and his convictions for federal
program bribery under Counts Twelve and Fourteen. We AFFIRM his
convictions on all other counts. Because of our reversal as to Counts Two,
Twelve, and Fourteen, his sentences on all counts are VACATED and the cause
as to him is remanded for resentencing on all the remaining counts of conviction.
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As to John Whitfield, we REVERSE his conviction for federal program
bribery under Count Eleven. We AFFIRM his convictions on all other counts.
Because of our reversal as to Count Eleven, his sentences on all counts are
VACATED and the cause as to him is remanded for resentencing on all the
remaining counts of conviction.
As to Walter Teel, we REVERSE his conviction for conspiracy to commit
federal program bribery under Count Two and his conviction for federal program
bribery under Count Thirteen. We AFFIRM his convictions on all other counts.
Because of our reversal as to Counts Two and Thirteen, his sentences on all
counts are VACATED and the cause as to him is remanded for resentencing on
all the remaining counts of conviction.37
37
All outstanding motions not previously (or herein above) ruled on are hereby
denied as moot.
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