United States v. Anthony Burfoot

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4266
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY L. BURFOOT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Henry Coke Morgan, Jr., Senior District Judge. (2:16-cr-00006-HCM-DEM-1)
Argued: May 8, 2018 Decided: August 8, 2018
Before GREGORY, Chief Judge, and KEENAN and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in which Chief Judge
Gregory and Judge Keenan joined.
ARGUED: Andrew Michael Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellant.
Uzo Enyinnaya Asonye, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria,
Virginia, Melissa E. O’Boyle, Assistant United States Attorney, Katherine Lee Martin,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Norfolk, Virginia, for Appellee.
DIAZ, Circuit Judge:
After a five-week jury trial, Anthony L. Burfoot was convicted of wire fraud,
extortion under color of official right, conspiracy to commit such offenses, and two counts
of perjury. The wire fraud, extortion, and conspiracy charges stem from Burfoot’s
solicitation of bribes from local real estate developers while serving on the city council in
Norfolk, Virginia. And he was charged with perjury following his testimony in another
trial in which he denied soliciting or accepting bribes. As we explain, we reject the issues
raised by Burfoot’s appeal and affirm the district court’s judgment.
I.
In 2002, Burfoot was elected to serve on the Norfolk City Council. Around the
same time, Burfoot’s childhood acquaintance Curtis Etheridge (“Curtis”) formed a
development and construction company called Tivest. Although Burfoot didn’t invest
financially in Tivest, he was a “silent partner” in the enterprise. J.A. 950. According to
Curtis, Burfoot promised to “set the table up” for Tivest by providing it with tax-funded
construction projects in Norfolk. J.A. 801. Between 2004 and 2005, Curtis provided
Burfoot with various perks, including $20,000 to $30,000 worth of home improvements at
no charge. Curtis also frequently paid for Burfoot’s meals, trips, and entertainment.
In early 2005, Curtis was convicted of making a false 911 call and impersonating a
police officer while at a nightclub. After the local newspaper reported that Burfoot had
been with Curtis at the club that evening, Burfoot decided to distance himself from Tivest.
He met with Curtis and another Tivest principal, Recardo Lewis, to discuss his role in the
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company. Curtis’s brother, Dwight Etheridge (“Dwight”), was also at the meeting.
Burfoot told them that he wanted Dwight to “buy him out” of his interest in Tivest for
$250,000. J.A. 953. In exchange, Burfoot would ensure the City awarded Tivest a large
construction contract for a development project known as the Broad Creek Villas, which
he said would include $600,000 of taxpayer funding for infrastructure. The Broad Creek
Villas project, a mixed-use development located in Burfoot’s ward, was going to be the
“cash cow” for Tivest’s future earnings. J.A. 837.
Lewis pushed back against Burfoot’s buyout demand, pointing out that Burfoot
hadn’t actually invested any of his own money in the company. In response, Burfoot
threatened to award the Broad Creek Villas project to another construction company. He
also stated that there were other construction companies he could get things done with. As
a result, the Etheridge brothers capitulated and, two days later, Dwight made an initial cash
payment of $30,000 to Burfoot.
Over the next six years, Burfoot demanded and received hundreds of thousands of
dollars in cash and gifts from Curtis and Dwight, including free home renovations, free
meals and entertainment, use of Dwight’s Porsche, and a free Mercedes concealed by a
sham loan. Dwight ultimately became CEO of Tivest and Burfoot’s primary source of cash
and gifts. He met with Burfoot more than seventy times to hand off cash in various
amounts, usually under $10,000.
Burfoot in turn voted to approve ordinances that awarded construction projects to
Tivest or benefitted the company in other ways. In 2008, for example, Burfoot cast votes
to ensure that the Broad Creek Villas project proceeded, and, on July 22, 2008, voted to
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award the project to Tivest. Phone records show that Burfoot and Dwight spoke over the
phone sixteen times that day. The ordinance awarding the project to Tivest granted the
company a large plot of city-owned land for a nominal $10. It also provided Tivest with
$200,000 in infrastructure support and a $5 million loan for construction.
Burfoot also cast votes in support of Tivest’s MidTown Office Tower project, a
proposed six-story office building that Tivest wanted to build on city-owned land. In
November 2008, Burfoot voted to award Tivest the MidTown project, conveying a large
parcel of land valued at $990,800 for no cost and $1 million in city funds to make
improvements to the property. A week before the vote, Dwight—at Burfoot’s direction—
made a $1,000 payment on Burfoot’s car loan and forged Burfoot’s signature to conceal
the source of the payment. Dwight also promised to give Burfoot a portion of the funds
obtained from the MidTown project construction loan as well as a personal office on the
top floor of the MidTown Office Tower.
In early 2011, the city council was poised to vote on an ordinance that would ensure
Tivest could properly finance the MidTown project. Burfoot was serving as Norfolk’s
Chief Deputy Treasurer at the time, in addition to his role on the city council. Several days
before the vote, on Saturday, February 12, the city council held a town hall meeting where
citizens critical of the MidTown project alleged that Tivest was delinquent in paying its
city taxes. After the meeting, Burfoot, afraid of losing the upcoming vote to finance the
MidTown project, instructed Dwight to pay Tivest’s taxes “as soon as the door opened up”
on Monday. J.A. 1134. Burfoot also called one of his employees in the Treasurer’s office,
Wendy Petchel, and told her to prepare the paper work for Dwight to pay Tivest’s taxes.
4
Early Monday morning, Dwight and Burfoot spoke over the phone, and then Dwight
headed down to the City Treasurer’s office where he and Burfoot discussed the tax
payment. Burfoot then directed Dwight to see Petchel to make the payment. Petchel
provided Dwight with an itemized breakdown of Tivest’s delinquent taxes, which exceeded
$20,000. Dwight wrote a check for a portion of the overdue taxes and used his sister’s
American Express credit card to pay the remaining $10,000 owed. Taxpayers typically
weren’t permitted to use another person’s credit card to pay taxes, and a supervisor, like
Petchel, would have had to approve that type of payment. Right after Dwight made the
payment, he returned to Burfoot’s office and told him the taxes were paid. Burfoot later
directed Petchel to provide misleading information to the media regarding the timing of
the tax payment.
The next day, Burfoot voted in favor of the ordinance to finance Tivest’s MidTown
project, which passed on a 5-3 vote. One city council member testified that he wouldn’t
have cast his vote in favor of the ordinance if Tivest had been delinquent on its taxes. But
this big win for Burfoot and Tivest was short lived. A week later, the City announced it
wouldn’t move forward with the MidTown project because the anchor tenant couldn’t
confirm its participation. At this point, Dwight was out of money so Burfoot and Dwight
parted ways.
Burfoot’s relationship with Tivest wasn’t his only quid pro quo relationship with a
local developer. Shortly after Burfoot was elected to city council in 2002, he met restaurant
owner and real estate developer Ronald Boone. Burfoot asked for and received thousands
of dollars in cash payments from Boone, as well as regular access to Boone’s beach house
5
in Kitty Hawk, North Carolina. In exchange, Burfoot cast votes to support Boone’s
business interests.
Burfoot established a similar relationship with Thomas Arney, another local
developer. Arney had recently developed a condominium project known as Widgeon
Pointe, which was financed by the Bank of the Commonwealth (the “BOC”). Tammy
Sansbury, the mother of Burfoot’s twin daughters, worked at the BOC and wanted to buy
a Widgeon Pointe condominium, but she didn’t have the money for the down payment. In
May 2009, Burfoot asked Arney to give Sansbury $25,000 so that she could purchase the
condominium. In exchange, Burfoot promised to get Arney the city council votes he
needed to open his proposed gentlemen’s club. The two men shook on the agreement.
Although the city council never approved the gentlemen’s club, Arney gave
Sansbury the $25,000 and sold her a condominium unit in exchange for Burfoot’s promise
to support Arney’s other business interests. Burfoot followed through on his promise,
voting and lobbying for ordinances that allowed Arney to open a new bar and use an
oversized sign to advertise it.
Federal investigators eventually turned their attention to Arney’s corrupt
relationship with BOC executives and insiders. Arney began cooperating with federal
agents and told them about his $25,000 payment to Sansbury (a BOC employee) in
exchange for Burfoot’s votes. He pleaded guilty and testified in a federal criminal trial
(the “Woodard trial”) against four BOC executives and Dwight from Tivest, who were all
being tried on various charges of bank fraud and improper use of bank funds. After Arney
testified about his bribery scheme with Burfoot, a BOC executive subpoenaed Burfoot as
6
a witness. On the witness stand at the Woodard trial, Burfoot denied ever asking Arney to
give Sansbury $25,000. Burfoot also denied ever soliciting or accepting anything of value
in exchange for an official act.
A grand jury ultimately charged Burfoot in an eight-count indictment with (1)
conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 1349; (2)
honest-services wire fraud, in violation of 18 U.S.C. § 1343; (3) conspiracy to obtain
property under color of official right (“Hobbs Act extortion”), in violation of 18 U.S.C.
§ 1951; (4) Hobbs Act extortion, in violation of 18 U.S.C. § 1951; and (5) four counts of
perjury, in violation of 18 U.S.C. § 1623. After a five-week trial, a jury found Burfoot
guilty on six of the eight counts, while acquitting him on two of the perjury counts. The
district court denied Burfoot’s post-trial motions for a judgment of acquittal or a new trial
and sentenced Burfoot to six years in prison.
II.
On appeal, Burfoot contends that the district court erred in denying his Federal Rule
of Criminal Procedure 29 motions for a judgment of acquittal where he challenged the
sufficiency of the evidence for all six counts of conviction and argued that the substantive
Hobbs Act extortion count was defective. He also argues that the district court erred in
denying his Federal Rule of Criminal Procedure 33 motions for a new trial on the basis of
inadmissible testimony, newly discovered evidence, and the jury’s failure to fully
deliberate. We address these issues in turn.
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A.
Under Rule 29, “the court on the defendant’s motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed.
R. Crim. P. 29. We review de novo a district court’s denial of a Rule 29 motion. United
States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005). We must sustain a guilty verdict if,
viewing the evidence in the light most favorable to the prosecution, the verdict is supported
by substantial evidence. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996).
Substantial evidence is that which “a reasonable finder of fact could accept as adequate
and sufficient to support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
Id. We don’t consider the credibility of witnesses and must assume the jury resolved all
contradictions in testimony in the government’s favor. Id.
Burfoot argues that the district court should have acquitted him on all counts. He
claims: (1) there was insufficient evidence to support the four convictions arising from his
alleged bribery schemes because the evidence only established that he engaged in a conflict
of interest; (2) there was insufficient evidence to support the honest-services wire fraud
convictions because Dwight’s use of an interstate wire transfer to pay Tivest’s delinquent
taxes was unforeseeable and required by law; (3) the substantive conviction of Hobbs Act
extortion was duplicitous, time barred, and constructively amended; and (4) there was
insufficient evidence of materiality to support his perjury convictions.
1. Insufficient Evidence of Bribery
Burfoot contends the evidence failed to show he engaged in bribery, and that such
evidence is necessary to sustain his convictions under counts one and two (conspiracy to
8
commit wire fraud and wire fraud) and counts three and four (conspiracy to commit Hobbs
Act extortion and Hobbs Act extortion). According to Burfoot, the evidence showed only
that he improperly voted on city council matters in which he had an undisclosed financial
interest. We disagree.
To begin, the jury clearly found that Burfoot engaged in bribery. The jury
instructions for counts one and two required the jury to find that the offenses were
committed “through bribery” and the instructions for counts three and four required the
jury to find that Burfoot knew he would obtain a thing of value in return for an official act.
J.A. 4408, 4415‒19. Further, substantial evidence supports the jury’s finding of bribery.
For example, Dwight, Curtis, and Lewis all testified as to their agreement to give Burfoot
$250,000 in exchange for Burfoot’s efforts to award Tivest the Broad Creek Villas project.
A reasonable jury could find such an agreement to constitute a bribe. Dwight also testified
to a quid pro quo relationship with Burfoot that went “over and beyond the $250,000.”
J.A. 995. And multiple witnesses, bank and phone records, and evidence of other financial
transactions support the jury’s finding of bribery.
2. Insufficient Evidence of Honest-Services Wire Fraud
Burfoot next argues that the evidence is insufficient to support his convictions for
wire fraud and conspiracy to commit wire fraud. Wire fraud under 18 U.S.C. § 1343
requires evidence showing that the defendant (1) devised or intended to devise a scheme
to defraud and (2) used or caused the use of wire communications in furtherance of that
scheme. United States v. Wynn, 684 F.3d 473, 477 (4th Cir. 2012). A wire communication
is in furtherance of a scheme to defraud if it’s a “step in the plot” or “incident to an essential
9
part of the scheme.” Schmuck v. United States, 489 U.S. 705, 710‒11 (1989) (internal
quotation marks omitted); see also S. Atl. Ltd. P’ship of Tenn. v. Riese, 284 F.3d 518, 531‒
32 (4th Cir. 2002) (applying Schmuck to wire fraud offense). One “causes” the use of a
wire communication when one acts with knowledge that such use “will follow in the
ordinary course of business” or where such use “can reasonably be foreseen, even though
not actually intended.” United States v. Pierce, 400 F.3d 176, 180 (4th Cir. 2005) (internal
quotation marks omitted).
Conspiracy to commit wire fraud under 18 U.S.C. § 1349 requires a jury to find that
(1) two or more persons agreed to commit wire fraud and (2) the defendant willfully joined
the conspiracy with the intent to further its unlawful purpose. See United States v.
Chittenden, 848 F.3d 188, 195 (4th Cir. 2017) (vacated on other grounds).
Burfoot argues that the evidence is insufficient to support either conviction because
he didn’t know—and couldn’t reasonably foresee—that Dwight would use an interstate
wire transfer to pay Tivest’s delinquent taxes. Dwight testified, however, that Burfoot
demanded he pay Tivest’s $20,000 tax delinquency. The only question then is whether the
way Dwight made the payment was reasonably foreseeable.
The government offered testimony and evidence about Burfoot’s familiarity with
the Treasurer’s office (he was, in fact, the Chief Deputy Treasurer) and how the office
routinely accepted credit card payments for tax obligations. Furthermore, the weekend
before the vote to finance the MidTown Project, Dwight and Burfoot had numerous
telephone conversations about Tivest’s delinquent taxes and the need pay them before the
vote. Dwight met with Burfoot in person at the Treasurer’s office Monday morning before
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the wire transfer, and Burfoot asked Dwight if he had the money to pay the taxes. Burfoot
also sent Dwight to an office employee, Petchel, to make the payment. Dwight then took
the invoices to Burfoot’s office where Burfoot confirmed that the tax delinquency was fully
paid. Given all this evidence, a reasonable jury could conclude that it was reasonably
foreseeable that Dwight would use an interstate wire transfer in response to Burfoot’s
demand that he quickly pay Tivest’s delinquent taxes.
Next, Burfoot argues the wire transfer used to pay Tivest’s delinquent taxes wasn’t
in furtherance of a scheme to defraud because state and local laws required that the taxes
be paid. For this proposition, Burfoot relies on Parr v. United States, in which members
of a school board misappropriated and embezzled school district funds. 363 U.S. 370, 381
(1960). The board members had been convicted of mail fraud on the theory that they
mailed out tax notices but then used taxpayers’ money in unlawful ways. Id. at 378‒81.
The Court reversed their convictions, holding that the board members’ mailing of tax
notices couldn’t constitute mail fraud because state law required such mailings. Id. at 391.
Burfoot reasons that he, as Chief Deputy Treasurer, was likewise legally obligated to
collect Tivest’s delinquent taxes and Dwight was legally obligated to pay. Therefore, he
concludes, the tax payment couldn’t have constituted wire fraud.
However, Parr is inapposite. While the school board members in Parr were legally
required to mail tax notices, Burfoot wasn’t legally required to demand that Dwight
immediately pay Tivest’s delinquent taxes via an interstate wire transfer. Further, unlike
the mailed notices in Parr, Dwight’s interstate wire transfer was part of Burfoot and
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Tivest’s fraudulent scheme. The Supreme Court’s more recent decision in Schmuck v.
United States helps explain this point of distinction.
In Schmuck, a used-car distributor’s mailing of car-title registration forms served as
the basis of his mail fraud conviction. 489 U.S. at 712. Even though state law required car
dealers to submit such forms, the Court reasoned that such mailings could still form the
basis of the mail fraud conviction because they were part of the execution of the fraudulent
scheme. Id. The Court distinguished Parr, noting that the mailings of tax notices “would
have been made regardless of the defendants’ fraudulent scheme.” Id. at 713 n.7. “The
relevant question at all times,” said the Court, “is whether the mailing is part of the
execution of the scheme as conceived by the perpetrator at the time.” Id. at 715; see also
United States v. Grubb, 11 F.3d 426, 435 (4th Cir. 1993) (upholding mail fraud conviction
based on mailing of employee retirement premiums in compliance with County
Commission’s legal duty because, unlike the tax notices in Parr, they were “grounded
wholly on an illegal scheme to defraud”).
In this case, substantial evidence supports the jury’s finding that the use of an
interstate wire transfer to pay Tivest’s delinquent taxes was part of the scheme to defraud.
The payment was critical to secure city council support for the MidTown project, which
was central to the bribery scheme involving Burfoot and Tivest. The bribery scheme—not
state law—dictated the timing of the payment and manner in which it was made. Thus, we
conclude that the district court correctly denied Burfoot’s Rule 29 motion to acquit him of
wire fraud.
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3. Defective Substantive Count of Hobbs Act Extortion
Burfoot argues that the district court should have acquitted him of Hobbs Act
extortion (count four) because (i) the charge was duplicitous and encompassed conduct
outside the applicable limitations period and (ii) the district court constructively amended
the charge in its instructions to the jury. We reject these arguments.
i. Duplicitous and Time-Barred
An indictment is duplicitous if it “charges two offenses in one count.” United States
v. Robinson, 855 F.3d 265, 269 (4th Cir. 2017). A duplicitous indictment creates “the risk
that a jury divided on two different offenses could nonetheless convict for the improperly
fused double count.” United States v. Robinson, 627 F.3d 941, 957 (4th Cir. 2010). “Such
a jury would not unanimously agree on the offense that the defendant committed, violating
the defendant’s Sixth Amendment right to a unanimous verdict.” Robinson, 855 F.3d at
269‒70. Additionally, “[w]hen an indictment impermissibly joins separate offenses that
occurred at different times, prosecution of the earlier acts may be barred by the statute of
limitations.” United States v. Smith, 373 F.3d 561, 563 (4th Cir. 2004).
However, “two or more acts, each of which would constitute an offense standing
alone . . . may instead be charged in a single count if those acts could be characterized as
part of a single, continuing scheme.” United States v. Kamalu, 298 F. App’x 251, 254 (4th
Cir. 2008) (unpublished) (quoting United States v. Shorter, 809 F.2d 54, 56 (D.C. Cir.
1987)); see also United States v. Singer, 782 F.3d 270, 276 (6th Cir. 2015); United States
v. Mancuso, 718 F.3d 780, 792 (9th Cir. 2013); United States v. Olmeda, 461 F.3d 271,
281 (2d Cir. 2006); United States v. Davis, 471 F.3d 783, 790–91 (7th Cir. 2006); United
13
States v. Jaynes, 75 F.3d 1493, 1502 (10th Cir. 1996). And even if a count is duplicitous,
it “is not to be dismissed unless it causes prejudice to the defendant.” Kamalu, 298 F.
App’x at 254 (citing United States v. Sturdivant, 244 F.3d 71, 75 (2d Cir. 2011)).
Burfoot asserts that a single Hobbs Act violation occurs the moment interstate
commerce is affected by a public official’s receipt of a thing of value with the requisite
knowledge that it was given in return for an official action. He argues that count four of
the indictment charges him with obtaining multiple things of value in return for various
official acts. As a result, he says, count four charges him with multiple offenses. And
because each act of extortion should be a separate count, he claims that all acts of extortion
that occurred before January 7, 2011, are time-barred under the five-year statute of
limitations for extortion offenses. See 18 U.S.C. § 3282(a).
The district court rejected this argument on the basis that Burfoot’s extortion was a
“continuing scheme” and that the jury made a specific finding that an act in furtherance of
this scheme occurred within the limitations period. We agree. Count four charges Burfoot
with obtaining “approximately $50,000 and other things of value” from Tivest and its three
principals, under color of official right, from October 2008 through February 2011.
Further, count four incorporates paragraphs 1 through 95 of the indictment’s general
allegations, which describe an ongoing extortion scheme in which Tivest continuously
made cash payments in exchange for Burfoot’s votes. We are satisfied that count four
characterizes Tivest’s various payments to Burfoot as part of a continuous scheme.
Furthermore, count four doesn’t implicate any of the policy concerns that underlie
the doctrine against duplicitous charges. We see no risk of double jeopardy or a non-
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unanimous jury verdict. Characterizing Tivest’s many payments to Burfoot over the years
as part of a continuous extortion scheme also avoids “unnecessarily complex and confusing
allegations and the concomitant prejudice to the defendant of charging him with scores of
substantive counts arising out of the scheme.” Singer, 782 F.3d at 276 (internal quotation
marks and alteration omitted).
Finally, count four didn’t charge Burfoot for time-barred conduct because it alleges
a continuous scheme of extortion and Burfoot committed acts in furtherance of that scheme
within the five-year limitations period. Although we’ve yet to address the question, several
circuits have held that Hobbs Act extortion may be charged as a continuing offense and
that the statute of limitations is no bar if the scheme continues into the five-year limitations
period. See United States v. Forszt, 655 F.2d 101, 104 (7th Cir. 1981) (“Hobbs Act
extortion is also a continuing offense so that no statute of limitations problem exists where,
as here, there is a single continuous plan of extortion embracing multiple payments over a
period of years.”); United States v. Bucci, 839 F.2d 825, 829‒30 (1st Cir. 1988) (upholding
Hobbs Act conviction where scheme began outside, but ended within, limitations period);
United States v. Provenzano, 334 F.2d 678, 687 (3d Cir. 1964) (same).
Much like in Forszt, Bucci, and Provenzano, Tivest’s payments to Burfoot were
“the consummation of [an] extortionate scheme which was a single and unified one,”
Provenzano, 334 F.2d at 685, and the scheme stretched into the applicable five-year
limitations period. In fact, the district court specifically instructed the jury that, with
respect to count four, “the government must prove beyond a reasonable doubt that at least
one act which is a part of the offense occurred subsequent to January the 7th, 2011.” J.A.
15
4415. The jury found Burfoot committed an act in furtherance of the extortion scheme
with Tivest after January 7, 2011, and thus appropriately convicted him of Hobbs Act
extortion.
ii. Constructive Amendment
Burfoot also argues that the district court’s jury instructions constructively amended
count four in violation of Burfoot’s Fifth Amendment rights. The Fifth Amendment
“guarantees that a criminal defendant will be tried only on charges in a grand jury
indictment,” so “only the grand jury may broaden or alter the charges.” United States v.
Randall, 171 F.3d 195, 203 (4th Cir. 1999) (internal quotation marks omitted). A
constructive amendment—also referred to as a fatal variance—occurs when the court
“broadens the possible bases for conviction beyond those presented by the grand jury.”
United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994). In other words, there’s a
constructive amendment when the indictment is effectively altered “to change the elements
of the offense charged, such that the defendant is actually convicted of a crime other than
that charged in the indictment.” Randall, 171 F.3d at 203 (internal quotation marks
omitted).
Count four of the indictment alleges, in part, that Burfoot “obtained approximately
$50,000 and other things of value.” J.A. 61. During its deliberations, the jury asked, with
respect to count four, whether it needed to find that Burfoot obtained $50,000 in cash in
addition to something of value, or just that he obtained something of value and cash
equating, in total, to $50,000. The district court first recounted the elements of the offense,
but when the jury requested additional guidance, the court instructed as follows:
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[T]he Government must prove that the defendant received something of
value. The Government does not have to prove what that amount of value
was or doesn’t have to quantify it. They have to prove that he received
something of value.
J.A. 4656.
The court’s clarifying instructions didn’t constructively amend count four because
obtaining a specific amount of money, like $50,000, isn’t an element of Hobbs Act
extortion—only “obtain[ing] a thing of value” is. J.A. 4417; see also Evans v. United
States, 504 U.S. 255, 259–60, 260 n.4 (1992). Also, when an indictment charges an offense
in the conjunctive, but either prong is a sufficient basis for conviction, a district court may
instruct the jury in the disjunctive, telling it to return a guilty verdict if either prong is met.
See Robinson, 627 F.3d at 958; United States v. Perry, 560 F.3d 246, 256 (4th Cir. 2009).
We therefore reject Burfoot’s argument. *
4. Insufficient Evidence of Perjury
Finally, Burfoot argues that the district court should have acquitted him of perjury
because the government failed to prove that his false statements made under oath were
material. A person is guilty of perjury under 18 U.S.C. § 1623 if he knowingly makes a
false, material declaration under oath in a proceeding before any court of the United States.
United States v. Wilkinson, 137 F.3d 214, 224 (4th Cir. 1998). A declaration is material
“if it has a natural tendency to influence, or is capable of influencing” the judge or jury.
*
Burfoot also argues that the district court’s constructive amendment of count four
justifies a new trial under Rule 33, but because there was no constructive amendment, this
argument too fails.
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United States v. Littleton, 76 F.3d 614, 618 (4th Cir. 1996). “It is irrelevant whether the
false statement actually influenced or affected the decision-making process.” United States
v. Sarihifard, 155 F.3d 301, 306 (4th Cir. 1998). Finally, “the jury, not the court, must
decide the issue of materiality.” United States v. Gaudin, 515 U.S. 506, 524 (1995).
At the Woodard trial, Burfoot denied ever asking Arney to give Sansbury $25,000
to purchase a condominium in exchange for favorable votes on the Norfolk City Council.
He also denied ever soliciting or receiving anything of value in exchange for an official
act. Burfoot alleges that these statements, even if false, weren’t material to the trial because
the Woodard indictment didn’t allege Arney’s exchange with Burfoot or Burfoot’s other
quid pro quo arrangements as part of a charged offense.
This argument holds no weight. First, the Woodard indictment charged the BOC
executives with conspiracy to commit bank fraud, and Arney’s exchange with Burfoot was
evidence of this conspiracy. The government alleged that the conspiracy involved
“troubled borrowers perform[ing] favors for Bank insiders in exchange for preferential
treatment.” United States v. Woodard, No. 2:12cr105, 2013 WL 4478065, at *2 (E.D. Va.
Aug. 16, 2013). The Burfoot‒Arney exchange was an example of Arney (a borrower)
performing a favor for Sansbury (a Bank insider). “[T]he government is permitted to
present evidence of acts committed in furtherance of the conspiracy even though they are
not all specifically described in the indictment.” United States v. Janati, 374 F.3d 263, 270
(4th Cir. 2004).
Second, Burfoot’s testimony contradicted Arney’s testimony and thus could have
influenced Arney’s credibility as a witness. And because Arney was a key witness in the
18
Woodard trial, false declarations diminishing his credibility could have influenced the
jury’s decision. See United States v. Friedhaber, 856 F.2d 640, 642 (4th Cir. 1988)
(holding testimony is material when it enhances or impeaches credibility of key witnesses).
Thus, there was substantial evidence supporting Burfoot’s perjury convictions.
B.
We turn now to Burfoot’s contention that the district court erred in denying his Rule
33 motions for a new trial. Burfoot moved for a new trial based on (1) inadmissible
testimony, (2) newly discovered evidence, and (3) the jury’s failure to fully deliberate.
Under Rule 33, a district court “may vacate any judgment and grant a new trial if the
interest of justice so requires.” Fed. R. Crim. P. 33. A trial court “should exercise its
discretion to award a new trial sparingly,” and a jury verdict is not to be overturned except
in the rare circumstance when the evidence “weighs heavily” against it. United States v.
Perry, 335 F.3d 316, 320 (4th Cir. 2003) (internal quotation marks omitted). We review a
trial court’s denial of a Rule 33 motion for an abuse of discretion. Id.
1. Inadmissible Testimony
Burfoot argues that the district court erred in denying his motion for a new trial
based on the court’s failure to grant a mistrial following City Councilman Tommy
Smigiel’s inadmissible opinion and hearsay testimony. At trial, on direct examination, the
prosecution questioned Smigiel about Burfoot’s corrupt relationship with local developer
Boone. Smigiel testified:
[T]here has always been a perception, since I have been on council, that
Ronnie Boone and the Boone family have been able to get whatever they
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want, and it doesn’t matter that they aren’t following the same rules as
everybody else.
J.A. 2157. Burfoot’s counsel immediately objected to the statement as inadmissible
opinion and hearsay testimony and moved for a mistrial, or at least, a curative instruction.
The court denied the motion for a mistrial, but gave the following curative
instruction:
Ladies and gentlemen, a witness who does not qualify as an expert witness
is not generally allowed to give opinions, and for somebody to say that his
perception is that in this case that Ronnie Boone got special treatment, is not
proper testimony because that’s an opinion. So perception cannot be the
basis for evidence that Boone got special treatment. That’s just not
competent evidence, and you should disregard it.
J.A. 2158‒59.
We review a district court’s evidentiary rulings for abuse of discretion, and such
rulings are subject to harmless error review under Federal Rule of Criminal Procedure 52.
United States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997). Under Rule 52, any error that
doesn’t affect substantial rights is harmless and must be disregarded. See United States v.
Heater, 63 F.3d 311, 325 (4th Cir. 1995). An error is harmless if we can say “with fair
assurance, after pondering all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the error.” Id. (internal
quotation marks omitted). Put another way, an error is harmless if it’s “highly probable
that [it] did not affect the judgment.” United States v. Nyman, 649 F.2d 208, 212 (4th Cir.
1980) (internal quotation marks omitted). The decisive factors to consider are “the
closeness of the case, the centrality of the issue affected by the error, and the steps taken
to mitigate the effects of the error.” Id. (internal quotation marks omitted). Before granting
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a mistrial, “the court should always consider whether the giving of a curative instruction
or some alternative less drastic than a mistrial is appropriate.” United States v. Martin, 756
F.2d 323, 328 (4th Cir. 1985).
Burfoot insists that Smigiel’s inadmissible statement warranted a mistrial, but
there’s no reasonable possibility that Smigiel’s testimony affected the jury’s verdict. First,
many local developers, including Boone himself, testified about their quid pro quo
arrangements with Burfoot. Smigiel’s remark about Boone was, at best, a drop in a bucket
overflowing with evidence. Second, Burfoot’s relationship with Boone didn’t serve as an
independent basis for any of the charges; it was primarily offered as Rule 404(b) evidence
of other wrongs. Nor did the inadmissible statement impugn Burfoot’s character or
conduct. Finally, the district court properly mitigated any potential effects of Smigiel’s
statement by instructing the jury to disregard it. We therefore reject Burfoot’s request for
a new trial on this basis.
2. Newly Discovered Evidence
Next, Burfoot claims the district court should have granted his Rule 33 motion based
on newly discovered evidence. To warrant a new trial on this ground, a defendant must
demonstrate: (1) the evidence is newly discovered; (2) he has been diligent in uncovering
it; (3) the evidence isn’t merely cumulative or impeaching; (4) the evidence is material to
the issues involved; and (5) the evidence would probably produce an acquittal. United
States v. Lighty, 616 F.3d 321, 374 (4th Cir. 2010).
Burfoot moved for a new trial based on two forms of “newly discovered evidence.”
First, he claims there’s new evidence that Boone—a key government witness—suffers
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from cognitive impairments that could have affected his memory of events and thus his
competency as a witness. Burfoot relies on a transcript of Boone’s sentencing hearing, at
which Boone’s counsel claimed that Boone had cognitive difficulties, had suffered a minor
stroke, and was being evaluated for early onset dementia. Second, Burfoot says there’s
new evidence that a government witness, Paul Riddick, provided Dwight with a job and
$100 when Dwight was released from prison. According to Burfoot, this new evidence
demonstrates Riddick’s bias towards Dwight and suggests that Riddick only testified to
buttress Dwight’s false testimony against Burfoot.
The district court denied Burfoot’s Rule 33 motion because the new evidence was
merely cumulative and impeaching, immaterial to the issues at trial, and wouldn’t result in
an acquittal. The court explained that it didn’t perceive Boone to be suffering from any
cognitive deficit when he testified against Burfoot. It also noted that the defense had ample
opportunity to impeach Boone based on his poor memory, and did, in fact, exhaustively
probe Boone’s recollection. Furthermore, the court reasoned there was nothing new to be
learned from Riddick supporting Dwight upon his release from prison, for it was well
known at the time of the trial that Riddick and Dwight were allies.
Finally, the district court concluded that even if this new evidence was accepted as
true, it wouldn’t change the verdict because there was an “overwhelming amount of witness
testimony and exhibits that corroborated beyond a reasonable doubt that [Burfoot] engaged
in a quid-pro-quo scheme to trade political influence and votes for favors, cash, and other
items of value.” J.A. 7512. We agree with the district court’s analysis and find no abuse
of discretion in its judgment.
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3. Jury’s Failure to Fully Deliberate
Finally, Burfoot argues that the jury didn’t fully deliberate or follow the instructions
to “consider all the evidence in the case” because it deliberated for only four hours and
forty-nine minutes. But juries are presumed to follow the judge’s instructions, including
the instruction to fully deliberate. See Richardson v. Marsh, 481 U.S. 200, 206 (1987).
And the mere length of a jury’s deliberation doesn’t refute that presumption. See United
States v. Aguilera, 625 F.3d 482, 487 (8th Cir. 2010) (“[B]rief jury deliberation alone is
not a sufficient basis for a new trial.”); Wilburn v. Eastman Kodak Co., 180 F.3d 475, 476
(2d Cir. 1999) (“A jury is not required to deliberate for any set length of time. Brief
deliberation, by itself, does not show that the jury failed to give full, conscientious or
impartial consideration to the evidence.”); United States v. Cunningham, 108 F.3d 120,
123–24 (7th Cir. 1997) (“But the time it takes the jury to decide is not the relevant factor.
The weight of the evidence is.”); Guaranty Serv. Corp. v. Am. Employers’ Ins. Co., 893
F.2d 725, 729 (5th Cir. 1990) (“If the evidence is sufficient to support the verdict, the length
of time the jury deliberates is immaterial.”); Kearns v. Keystone Shipping Co., 863 F.2d
177, 182 (1st Cir. 1988) (same); Wall v. United States, 384 F.2d 758, 762 (10th Cir. 1967)
(same).
The jury here deliberated for nearly five hours and acquitted Burfoot on two counts.
Nothing suggests it rubber-stamped the prosecution’s case. Thus, the district court was
right to deny Burfoot’s motion for a new trial based on the length of the jury’s deliberations.
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III.
For the reasons given, the district court’s judgment is
AFFIRMED.
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