United States v. McNair

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ FILED

U.S. COURT OF APPEALS

Nos. 07-11476, 07-11644, ELEVENTH CIRCUIT

MAY 12, 2010

08-10428, 08-10433

JOHN LEY

________________________

CLERK

D. C. Docket Nos. 05-00544-CR-LSC-TMP

05-00061-CR-2-RBP-TMP

05-00542-CR-2-RDP-PWG

05-00545-CR-LSC-PWG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JEWELL C. “CHRIS” MCNAIR,

JACK W. SWANN,

BOBBY J. RAST,

DANIEL B. “DANNY” RAST,

RAST CONSTRUCTION, INC.,

FLOYD W. “PAT” DOUGHERTY,

F.W. DOUGHERTY ENGINEERING & ASSOCIATES, INC.,

GRADY R. “ROLAND” PUGH, SR., and

ROLAND PUGH CONSTRUCTION, INC.,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Alabama

_________________________

(May 12, 2010)

Before CARNES, HULL and ANDERSON, Circuit Judges.

HULL, Circuit Judge:

This consolidated appeal arises from five bribery and public corruption cases

relating to the $3 billion repair and rehabilitation of a sewer and wastewater

treatment system in Jefferson County, Alabama. A 127-count Second Superseding

Indictment (the “Indictment”) charged sixteen defendants (eleven individuals and

five corporate firms) with conspiracy to commit bribery, substantive offenses of

bribery, honest services mail fraud, mail fraud, and obstruction of justice. Nine

defendants appeal their convictions here. Three of those nine defendants appeal

their sentences.

Specifically, the nine defendant-appellants are: two former County officials,

three corporate contractors, and four individuals who owned these respective

contractors. The two defendant County officials were in charge of the sewer

program and received hundreds of thousands of dollars worth of bribes from the

defendant contractors. In many cases, the contractors disguised these payments by

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altering invoices or hiding costs within their accounting systems. In turn, the

defendant contractors obtained hundreds of millions of dollars worth of payments

on construction and engineering contracts with the County. The County officials

approved the contractors’ pay requests, change orders, time extensions, and/or

requests for field directives, all of which financially benefitted the defendant

contractors.

After review and oral argument, we conclude the evidence at the trials

overwhelmingly established the defendant-appellants’ guilt, and they have shown

no reversible error in the district courts’ rulings, pre-trial or in the trials, in the

cases consolidated on appeal. Thus, we affirm all of the defendant-appellants’

convictions except Roland Pugh Construction, Inc.’s conviction on Count 75,

which is barred by the statute of limitations. We also affirm Jewell C. “Chris”

McNair’s sentence in full. We affirm Jack W. Swann’s sentence in part but

remand for further proceedings as to the amount of the fine. As to the sentence of

Roland Pugh Construction, Inc., we (1) affirm the district court’s findings of fact

as supported by the record; and (2) conclude there was no error in the district

court’s calculations under the sentencing guidelines; but (3) in light of the reversal

of its Count 75 conviction, we vacate its sentence and remand for resentencing

without Count 75.

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I. BACKGROUND

A. Jefferson County Officials

The defendant County officials implicated in the bribery scandal are:

Defendant McNair: Jewell C. “Chris” McNair (“McNair”) was a Jefferson

County Commissioner. McNair was responsible for overseeing the operation of

the Jefferson County Environmental Services Division (“JCESD”), which included

the sewer system.1

Defendant Swann: Jack W. Swann (“Swann”) was the Director of the

JCESD.

Defendant Wilson: Ronald K. Wilson (“Wilson”) was Chief Civil Engineer

for the JCESD and served on the Product Review Committee (“PRC”).2 After

leaving the JCESD in 1999, Wilson formed his own firm, Civil Engineering

Design Services, Inc. (“CEDS”).

1

The repair and rehabilitation project, which is the subject of this appeal, was required

under the terms of a consent decree between Jefferson County and the U.S. Environmental

Protection Agency. The consent decree was entered into as a settlement of claims brought by the

U.S. Justice Department in 1994 against Jefferson County for violations of the Clean Water Act,

and it required Jefferson County to repair and upgrade dilapidated sewer lines and wastewater

treatment plants that were overflowing and leaking sewage into local watersheds. The JCESD

initially estimated the work would cost County ratepayers $1.2 to 1.5 billion over the next

decade. The actual costs were closer to $3 billion.

2

The PRC was a technical committee that reviewed materials, specified the products that

could be used on the sewer project, and qualified contractors for certain kinds of work on the

project. During the relevant time period, the PRC had between 10 and 11 members. Among

them were defendants Wilson and Barber, and co-conspirators Harry Chandler, Donald Ellis, and

Larry Creel.

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Defendant Barber: Clarence R. Barber (“Barber”) was Chief Construction

Maintenance Supervisor for the JCESD and served on the PRC.

B. Contractors

These defendant corporate firms and individuals had either construction or

engineering contracts with the JCESD and were implicated in the bribery scandal.

Pugh defendants: Roland Pugh Construction, Inc. (“PUGH”); Grady Roland

Pugh, Sr. (“Roland Pugh”), founder, board chairman, and 70% owner of PUGH;

and Joseph E. “Eddie” Yessick (“Yessick”), President and 10% owner of PUGH.

PUGH had $178 million in sewer construction contracts with Jefferson County

between August 1999 and January 2002. PUGH was a “dig-and-replace”

contractor.3

Rast defendants: Rast Construction, Inc. (“RAST”); Bobby J. Rast (“Bobby

Rast”), President and co-owner of RAST; and his brother Daniel B. Rast (“Danny

Rast”), Vice President and co-owner of RAST. RAST had about $100 million in

sewer construction contracts with Jefferson County during the same period. RAST

was another “dig-and-replace” contractor.

3

A “dig-and-replace” contractor traditionally digs up broken sewer pipes, replaces them,

and paves over the repair. Some dig-and-replace contractors have the capacity to perform

“cured-in-place” work. The “cured-in-place” process involves the relining of cracked pipes with

a cement product that cures inside the pipes and seals the cracks from within. None of the

defendants here performed cured-in-place work. However, PUGH and Defendant Rast

Construction, Inc. entered into joint ventures with contractors who could perform cured-in-place

work, as discussed later.

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Dougherty defendants: F. W. Dougherty Engineering & Associates, Inc.

(“FWDE”) and Floyd W. “Pat” Dougherty (“Dougherty”), President and owner.

FWDE received $11.4 million in no-bid engineering contracts with Jefferson

County during the same period.

USI defendants: US Infrastructure, Inc. (“USI”); Sohan Singh (“Singh”),

President of USI; and Edward Key (“Key”), Vice President of USI. USI received

about $50 million in engineering contracts with Jefferson County between 1999

and 2003.

C. Co-conspirators

Five other individual co-conspirators pled guilty and testified for the

government in one or more of the five trials:

Grady Pugh: Grady Roland Pugh, Jr. (“Grady Pugh”) was CEO and 10%

owner of PUGH. He is the defendant Roland Pugh’s son.

Chandler: Harry T. Chandler (“Chandler”) was Assistant Director of the

JCESD and served on the PRC.

Ellis: Donald R. Ellis (“Ellis”) was an engineer for the JCESD and Chairman

of the PRC.

Creel: Larry P. Creel (“Creel”) was a Maintenance Supervisor for the

JCESD and served on the PRC.

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Dawson: William H. Dawson (“Dawson”) was the owner of Dawson

Engineering, Inc. (“Dawson Engineering”), which received at least $20 million

worth of no-bid engineering contracts from Jefferson County.

While the Indictment alleges certain conduct by these five individuals as co-

conspirators, they are not named defendants in the Indictment at issue in this

appeal.

D. The Indictment

The Indictment contained 127 counts.4 Six of the counts charged a bribery

conspiracy. Specifically, Counts 1 (against McNair and the Pugh, Rast, and

Dougherty defendants), 32 (against McNair and the USI defendants), 50 (against

McNair and the USI defendants), 51 (against Swann and the Pugh, Rast, and

Dougherty defendants, except for Roland Pugh), 75 (against Wilson and PUGH),

and 78 (against Barber and the Pugh defendants) charged conspiracy to commit

bribery under 18 U.S.C. §§ 371 and 666.

Counts 2-31, 33-49, 52-74, 76-77, and 79-89 charged one or more

defendants with substantive bribery offenses (or aiding and abetting bribery) under

4

The original indictment was filed on February 7, 2005, and the Superseding Indictment

was filed on July 13, 2005. After the five co-conspirators listed above pled guilty over a period

of several months, the government submitted the Second Superseding Indictment on August 26,

2005, dropping the defendants who had pled guilty. The counts referenced in this opinion are as

numbered in the Second Superseding Indictment.

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18 U.S.C. § 666. For the most part, these substantive bribery offenses were the

overt acts charged in the conspiracy counts.

Counts 90-101 charged honest services mail fraud under 18 U.S.C. §§ 1341

and 1346 against defendants Swann, Yessick, and PUGH. Counts 102-121

charged honest services mail fraud under 18 U.S.C. §§ 1341 and 1346 against

defendants Swann, Wilson, CEDS, FWDE, and Dougherty. Counts 122-124

charged mail fraud under 18 U.S.C. § 1341 against the Dougherty defendants.

Counts 125-127 charged obstruction of justice against certain defendants under 18

U.S.C. § 1503.

Some of these counts were dismissed before trial, and other counts were

dismissed prior to jury deliberations. And some defendants, such as Roland Pugh,

were dismissed from some of the counts that went to the jury. This opinion

addresses only the counts that were actually submitted to the jury.

E. Five Trials

The 127-count Indictment was severed into five separate cases for trial:

McNair (05-061), Swann (05-544), Barber (05-542), Wilson (05-545), and USI

(05-543).5 The McNair trial involved bribes by the Pugh, Rast, and Dougherty

5

Grady Pugh, Chandler, Ellis, Dawson, and Creel testified for the government in the

McNair trial. Chandler, Ellis, and Wilson testified for the government in the Swann trial. Grady

Pugh, Chandler, and Yessick testified for the government in the Barber trial. Grady Pugh and

Chandler testified for the government in the Wilson trial. Chandler, Ellis, and Dawson testified

8

defendants primarily to McNair but also to Chandler and Ellis. The USI trial

involved bribes to McNair by the USI defendants. The other trials involved bribes

to Swann, Barber, and Wilson, respectively.

In the USI trial, defendants USI, Key, and Singh were convicted of, among

other things, conspiracy to commit bribery and substantive bribery offenses for

making payments to defendant Commissioner McNair and the JCESD’s Chandler

and Ellis. This Court affirmed defendants USI, Key, and Singh’s convictions and

sentences in United States v. US Infrastructure, 576 F.3d 1195 (11th Cir. 2009),

cert. denied, __ S. Ct. __, 78 U.S.L.W. 3540 (U.S. Mar. 22, 2010) (No. 09-967).

Defendant McNair entered a conditional guilty plea to Count 32 (conspiracy to

accept a $140,000 bribe from the USI defendants).6 McNair reserved the right to

appeal the district court’s denial of his motion to dismiss Count 32. McNair’s

appeal in the USI case has been consolidated with the present appeal.

F. Nine Parties to This Appeal

This present consolidated appeal involves not only defendant McNair’s

appeal in the USI case but also these defendants’ appeals in the other four trials:

(1) McNair trial: defendants McNair, PUGH, Roland Pugh, RAST, Bobby

for the government in the USI trial.

6

McNair’s motion to dismiss sought dismissal of Counts 32 and 50 (both counts of

conspiracy to commit bribery), arguing under “Wharton’s Rule” that a conspiracy cannot exist as

an offense separate from the substantive offense of bribery (charged in Counts 33-37).

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Rast, Danny Rast, FWDE, and Dougherty. Defendant Yessick (President of

PUGH) was convicted at trial and does not appeal.

(2) Swann trial: defendants Swann, PUGH, RAST, Bobby Rast, FWDE, and

Dougherty. Defendant Yessick was convicted at trial and does not appeal.

(3) Barber trial: defendant PUGH. Defendants Barber and Yessick pled

guilty and do not appeal.

(4) Wilson trial: defendant PUGH. Defendant Wilson was convicted at trial

and does not appeal.

Albeit from five separate cases, the defendant-appellants raise many of the

same issues. We discuss (1) the evidence in the McNair, Swann, Barber, and

Wilson trials, and (2) the issues commonly raised by the defendants, followed by

(3) certain issues pertaining to particular defendants.

II. THE McNAIR TRIAL (05-061)

The McNair trial, held from April 6 to 21, 2006, involved over $350,000 in

bribes the Pugh, Rast, and Dougherty defendants paid to Commissioner McNair

and $6,600 in bribes they paid to County employees Chandler and Ellis. The

government called 36 witnesses, including Chandler, Ellis, Dawson, Creel, and

Grady Pugh. The defense called 23 witnesses. No named defendant testified.

The government’s witnesses described in great detail the bribes to McNair,

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Chandler and Ellis, and how those three County officials financially helped the

Pugh, Rast, and Dougherty defendants in their contracts with and payments from

Jefferson County. Because the defendant contractors in the McNair trial claimed

they paid McNair only out of a long-time friendship and lacked corrupt intent, the

district court admitted certain evidence, under Federal Rule of Evidence 404(b),

about how these same defendants bribed Swann and other County employees in

order to show the defendants’ corrupt intent and common plan. Thus, our

recitation of evidence in the McNair trial covers bribes given not only to McNair

but also to Swann and other County employees.

A. McNair Helps Contractor-Defendants

Jefferson County was governed by five elected Commissioners, each of

whom had a different area of responsibility. Defendant McNair held office as a

County Commissioner from 1996 until his retirement in March 2001. McNair was

responsible for overseeing the JCESD, which included the sewer systems. McNair

had authority to approve pay requests from the sewer construction contractors, to

approve change orders7 increasing the contract price paid to those contractors, to

approve change orders modifying the contract terms in favor of those contractors,

to approve emergency payments to contractors, to select consulting engineers

7

Change orders are contract modifications in the Jefferson County Commission’s Agenda

items.

11

through a no-bid process, and to approve the engineers’ contracts and payments.

Although final approval required the vote of the entire Commission, there was no

evidence that the Commission questioned or disapproved of any pay request or

change order approved by McNair or any selection or award of a contract

recommended by McNair. McNair’s nickname among the contractors was “Big

Man.”

McNair approved payments (in the hundreds of millions of dollars) to the

Pugh, Rast, and Dougherty defendants (the “contractor-defendants”), approved

change orders (in the millions of dollars) benefitting PUGH and RAST, and

approved no-bid engineering contracts (in the millions of dollars) to FWDE, all

while these defendants were paying for materials and labor to expand and renovate

McNair’s photography studio. Each item requiring Commission approval, such as

contract awards or modifications, needed McNair to approve it first and then to put

it on the Commission’s agenda for further approval.8 The sewer construction

contracts were awarded through a sealed bid process and would go to the lowest

8

For example, the December 1999 Commission Agenda shows a modification adding

$1,081,621 (about 28% of the contract value) to a PUGH contract, and a $112,600 contract

award to FWDE. The January 2000 Agenda indicates a modification adding $489,133 to a

PUGH contract. The February 2000 Agendas indicate a modification adding $400,724 to a

RAST contract, a $721,132 contract award to FWDE, and a modification adding $1,377,267 to a

PUGH contract. The March 2000 Agenda indicates a $5,289,002 contract award to PUGH. The

April 2000 Agenda indicates contract awards of $994,640 and $348,103 to FWDE, a

modification adding $439,722 to a RAST contract, and a modification adding $850,264 to a

PUGH contract.

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bidder. But the prospective contractors had to satisfy technical standards set by the

PRC before they would be eligible to bid.

Once a new contract was awarded and in place, Chandler and other

supervisors, such as Ellis, could approve changed or additional work as “field

directives.” If a requested change exceeded the original contract amount, Chandler

and Ellis could recommend “change orders” (requests for additional funds), which

McNair would then approve and place on the Commission’s agenda, without

further competitive bidding. The JCESD also could award “emergency” work to

construction contractors without competitive bidding. For emergency jobs, Barber

typically selected the contractor, negotiated the price, and then sent the pay

requests to McNair, Swann, and Chandler for approval. Together, McNair, Swann,

and Chandler approved a variety of contracts for the sewer project.9

The construction contractors’ work was supervised by independent

consulting engineers, whose jobs were to make sure the contractors performed

according to specifications and to sign off on payments and requests for change

orders. This supervision was provided by engineering firms such as FWDE, USI,

9

For example, Chandler, Swann, and McNair approved a $1,168,788.02 payment to

PUGH for work done in January 2001. Chandler, Swann, and McNair approved a $2,652,820

payment to PUGH for work done in June 2000. Chandler, Swann, and McNair approved a

$1,000,000 payment to RAST in October 2000. Swann and McNair approved — in one day on

an emergency basis without Chandler’s or the County engineer’s usual approval — a $1,152,888

payment to RAST for work done in October 2000.

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and Dawson Engineering. The engineering consultant contracts were awarded

without bidding. Swann and Chandler selected engineering firms, negotiated their

contracts, and recommended them to McNair for final approval.

The County’s PRC initially decided to qualify only three contractors to do

“cured-in-place” work: W.L. Hailey (“Hailey”), Insituform, and Reynolds.

Because the traditional “dig-and-replace” work was grouped with “cured-in-place”

work for all the major construction contracts, this PRC decision effectively limited

the “big jobs” to only three bidders: a RAST-Hailey joint venture, a

PUGH-Insituform joint venture, and Reynolds, which did its own dig-and-replace

work. In late 1999, the PRC changed the criteria, making it more difficult for other

contractors to pre-qualify for “cured-in-place” work, and potentially delaying by

two years the qualification of otherwise qualified contractors.10

Contractor PUGH’s CEO Grady Pugh admitted to receiving a “general

benefit” from giving McNair “envelopes of cash,” in that “Jefferson County treated

us real well. We had an opportunity to do a tremendous amount of work there.

The work that we did there generated huge profits . . . [I]t took our company

[PUGH] from a normal struggling contracting company in [the] mid to late ‘90s, to

a thriving, wealthy, strong construction company.”

10

The PRC and its requirements are discussed more later in the Wilson trial section.

14

During the relevant period, PUGH dedicated about 70% of its work to the

Jefferson County sewer rehabilitation and received tens of millions of dollars in

revenue from that sewer work. In 1996 and 1997, at the sewer rehabilitation’s

outset, PUGH made gross profits of 10%, and as the project continued and

payments were made to JCESD officials, the company’s sewer rehabilitation

profits increased to 50% in 1999, 40% in 2000, and 45% in 2001, making PUGH

tens of millions of dollars each of these years.

RAST also received tens of millions of dollars in revenue per year from its

Jefferson County sewer work. And the engineering firms, including FWDE,

received revenue in millions of dollars per year from their work on the sewer

rehabilitation. McNair made the decision every time FWDE or Dawson

Engineering was selected as the outside consulting engineer and awarded a

professional service contract. After electrical contractor Gus Henson did some

work for McNair without charge, McNair had Swann arrange a County contract for

him, even though the County did not normally hire electrical engineers for sewer

work.

In total, from August 1999 to January 2002, Jefferson County paid $178

million to PUGH, $100 million to RAST, $11.4 million to FWDE, and $8 million

to Dawson Engineering.

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B. Bribes of McNair

McNair owned a small photography business called McNair Frame & Photo

Art, Inc. (“McNair’s studio”). Between 1999 and early 2002, McNair started a

major expansion and renovation of the studio, which would more than double its

size. McNair’s expansion included adding extras to the studio, such as an

apartment for his daughter, a second-story deck, external stairs, a “guard shack,”

and a security gate.

All contractor-defendants in this case generously contributed to the

renovation and expansion of McNair’s studio. In 1999, FWDE’s President

Dougherty sent Bill Bailey, an FWDE employee initially hired as an inspector for

County jobs, to work as the construction superintendent for the studio’s

renovation. FWDE paid Bailey for the approximately 18 months he spent working

at McNair’s studio. During that time, FWDE paid Bailey $74,240. Although some

of his time was charged to “administration,” FWDE President Dougherty charged

some of Bailey’s studio time to a JCESD sewer project. McNair was not charged

for Bailey’s work. As superintendent, FWDE’s Bailey oversaw construction at

McNair’s studio by numerous other contractors, including PUGH and RAST.11

11

As 404(b) evidence, the government showed that in addition to paying $74,240 to

Bailey, FWDE paid the salaries of its employees, Wayne Hendon and John Stanger, while they

acted as construction superintendents overseeing renovation of JCESD Director Swann’s home.

FWDE paid Hendon $94,090 and Stanger $28,839 for that work.

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RAST excavated for the expansion’s footings for McNair’s studio. In July

1999, PUGH ordered concrete and for four weeks had a four-man crew pour

concrete walls and do other work on the studio, paying the crew $11,709. PUGH’s

crew supervisor talked to McNair while the concrete work was in progress, but

McNair did not question why he was there or where he was from, nor did McNair

offer to pay for this work.

In late 1999, FWDE’s Bailey asked Barry Mosley of Mosley Construction to

do wood framing and other finish work at McNair’s studio. McNair initially paid

Mosley, first with a check and then with cash, but eventually McNair stopped

paying. Bobby Rast then told Bailey that “McNair was running out of funds” and

that RAST would begin paying Mosley directly. From July 2000 to December

2000, RAST wrote 20 checks totaling $52,990 to Mosley as his work at the studio

progressed, and, at Bobby Rast’s direction, coded these payments as expenses on a

JCESD sewer project. Either Bailey or someone from RAST’s office, such as

Danny Rast, brought Mosley the checks.

In January 2002, RAST gave Mosley two more checks totaling $7,200 for

work he and his crew did on the studio’s “guard shack,” a two-story, 12 x 12

building designed by defendant Dougherty, and built, in part, by defendants RAST

and FWDE. Bobby Rast caused these payments to be coded as expenses on the

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“Upper Valley Rehab” or Kilsby contract, a JCESD sewer project. For tax

purposes, all payments to Mosley were deducted as business expenses on sewer

projects. Mosley did no work on those projects. After a local newspaper reported

RAST’s construction work at JCESD Director Swann’s home, RAST amended its

tax returns for 1998-2000 and 2002 to eliminate these and other deductions. The

deductions, which totaled over $140,000, were based on expenditures for McNair’s

studio and Swann’s home that had been cost-coded to sewer projects and treated as

business expenses.

After the publicity, Bobby Rast told his bookkeeper in “effect that we really

didn’t need any document invoices in the files with Jack Swann’s or Chris

McNair’s shipping address on them.” The bookkeeper then located and discarded

several invoices related to work at McNair’s studio and Swann’s home.

RAST furnished the labor and PUGH furnished the materials to construct a

second-story deck for the rear of McNair’s studio. Bailey handwrote a list of

materials and ordered the necessary steel. When Besco Steel Supply (“Besco”)

delivered the steel, its delivery tickets identified PUGH and Yessick as its

customers and indicated some of the steel was for the Valley Creek Treatment

Plant, a JCESD sewer job on which PUGH was the contractor and FWDE the

consulting engineer. In September 2000, PUGH paid Besco and charged the

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JCESD for $3,773 worth of steel with FWDE’s approval, and RAST poured the

concrete deck and stairs, set the handrails, and built the steps.

Around September 2000, FWDE employee Dave Bechtel ordered two sets of

aluminum handrails for the studio deck and a staircase from Thompson

Fabricating, which was directed to bill PUGH. The $5,500 invoice for the first set

of handrails charged the work as performed on the Valley Creek Treatment Plant

and falsely indicated that the handrails were shipped there. In February 2001, an

$11,700 invoice for the second set of handrails referenced “CHRIS MC.” as the

customer, but also falsely indicated that the handrails were shipped to Valley Creek

when in fact they were shipped to McNair’s studio. PUGH paid both invoices and

billed the County for the first set of handrails after adding a markup and charges

for labor and equipment. RAST installed the handrails.

In May 2000, at McNair’s request to Roland Pugh, Grady Pugh flew

McNair’s daughter and FWDE’s Bailey on PUGH’s airplane to Georgia, where

they picked out carpet for McNair’s studio. Before take-off, Roland Pugh told his

son Grady Pugh that “McNair has called [again] and says that he’s broke and he

doesn’t have enough money to leave for the deposit on the carpet” and “[s]o, if you

would, write a check for the deposit.” Grady Pugh paid the deposit with a $4,820

PUGH check made out to the Mill Store and had it treated on PUGH’s books as an

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expense on the “last rehab contract.”12

FWDE’s Bailey hired subcontractor Clint Gilley to install the carpet at

McNair’s studio. In October 2000, FWDE’s Bailey called RAST to request checks

for subcontractor Gilley. After Bobby Rast was consulted, RAST gave Gilley two

checks totaling $5,301 for his work at McNair’s studio.

In addition to paying for materials and providing work crews, PUGH also

made other contributions to McNair’s studio. When the project began in 1999,

Roland Pugh told PUGH’s other three owners, Grady Pugh, Andy Pugh, and

Yessick, they had to give money to McNair because he was building a studio and,

as 10% owners of the PUGH company, they had to “kick in” their share. Grady

Pugh gave approximately $1,500 in cash to Roland Pugh’s secretary that time.13

12

The Indictment alleges as an overt act on Count 1: “On or about May 24, 2000,

Defendant ROLAND PUGH instructed Grady Pugh to fly an airplane owned by Defendant

PUGH, INC. to LaGrange, Georgia, to buy carpet and flooring material for the benefit of

Defendant McNAIR. . . . On or about May 24, 2000, Defendant ROLAND PUGH caused Grady

Pugh to pay $4,820 to The Mill Store, Inc. for carpet and tile for installation at McNair Studio

for the benefit of Defendant McNAIR.”

13

The government also presented evidence of cash allegedly given to McNair. Roland

Pugh collected money from the other owners to give to McNair. On July 18 and 19, 2000,

Roland Pugh, Grady Pugh, and Yessick wrote checks to cash (totaling $9,000) in proportion to

their ownership interests. Roland Pugh gave Grady Pugh an envelope of money and asked him

to give it to McNair. Grady Pugh took the envelope to the studio where he saw Bailey and told

him he was there to help McNair. Grady Pugh stated the money was “financial help” that

McNair needed at that time. Grady Pugh then met with McNair for a few minutes and left the

envelope with McNair.

When the studio needed an air conditioning system, McNair again called Roland Pugh

asking PUGH to pay for it. Roland Pugh told Grady Pugh that McNair needed $40,000, but that

“y’all don’t have to put up any money this time, I’m going to do it in a different way.” Roland

Pugh gave a $10,000 check dated December 22, 2000 to Grady Pugh’s wife, Genae Pugh, who

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McNair also wanted a security gate for the studio. In August 2000, Danny

Rast hired subcontractor Master Access Controls (“MAC”) to install an electronic

gate and agreed that RAST would provide the electrical conduit, wiring, and

concrete pad for the gate’s motor. MAC met with FWDE’s Bailey at McNair’s

studio site, installed the gate, and sent its invoices to the attention of Danny Rast.

RAST paid the subcontractor $5,866.92. McNair paid nothing.

Also in December 2000, at Danny Rast’s request, RAST gave Bailey &

Sons’ Bobcat Service, owned by Danny Bailey, a $5,500 check for landscaping at

McNair’s studio. However, RAST’s records indicated Danny Bailey was working

on a JCESD sewer project. Although Danny Bailey had done work for RAST

before, he did not send the invoice for the studio work through regular billing, as

he normally would, but instead sent it “Atten Dan Rast.”14

cashed it and gave the money to Roland Pugh. That same day, Roland Pugh wrote a $10,000

check to Angie Pugh (Andy Pugh’s wife) and a $9,750 check to cash. A week earlier Roland

Pugh had written a $9,000 check to cash. Around Christmas 2000, at Roland Pugh’s request,

Grady Pugh picked up another envelope containing cash from Roland Pugh’s secretary, went to

McNair’s house, spoke with him for a few minutes, and put the money down on a couch with

McNair watching.

It appears from the closing arguments that all of the above cash and checks relate to

Counts 4, 13 and 14 (on which the defendants were acquitted).

14

Huffman Electric was hired to do electrical work at McNair’s studio by FWDE but was

told to bill RAST. When Huffman sent an $11,252 invoice to RAST in November 1999 without

making it to the attention of Bobby or Danny Rast, RAST’s vice president, Roy Weaver,

responded that they “have no job at this location.” Huffman then began billing McNair directly.

At first McNair paid the bills, but he eventually fell behind in his payments and owed

approximately $45,000 by July 2000. Around this time, Grady Pugh allegedly made a delivery

of cash to McNair, and RAST took over paying for Mosley’s wood framing services.

21

In November 2000, McNair asked Dawson Engineering to contribute to the

studio’s renovation. After McNair called William Dawson, the founder of Dawson

Engineering, the two met at McNair’s studio. McNair handed Dawson a brochure

for an audiovisual system and told Dawson that, while McNair had “never asked

[Dawson] for anything before,” he needed to ask Dawson to “help [him] with

something.” McNair opened the brochure to a specific page, showed it to Dawson,

and indicated he wanted Dawson to pay for the equipment and its installation.

Dawson went to Holt Audio Video (“Holt”) and purchased the equipment for

$16,400. Dawson testified he would not have done this for McNair if McNair had

not been associated with the sewer rehabilitation process. When Dawson saw the

invoice indicated the bill was for Dawson Engineering but the shipment was for

McNair’s studio, he became “uncomfortable with the whole situation” and asked

Holt to alter the shipping information by putting a sticker over the McNair studio’s

address, which Holt did. Dawson later pled guilty to conspiring to commit bribery.

Work at the studio continued after Commissioner McNair retired in March

2001. FWDE’s Bailey hired Buchanan Plumbing and Sewer Service (“Buchanan”)

to plumb the “guard shack.” In November 2001, FWDE employees signed

Buchanan’s $1,775 in invoices and sent them to RAST, which paid them. RAST

recorded the payments as “Plumbing Work at Kilsby Circle,” a sewer project, even

22

though Buchanan never did any work there.

After McNair’s retirement, Roland Pugh told Grady Pugh “that GD [sic]

McNair has called again, and he wants us to do some work over in Arkansas” and

“surely this is the last time we’ll have to do anything for him since he’s out of

office.” Grady Pugh flew with McNair to Arkansas to look at the site and plans.

Following this visit, PUGH’s Yessick hired George Word, an Arkansas building

contractor, in August 2001 to build a 3000-square-foot retirement home for

McNair. Both PUGH and FWDE paid for its construction.15 PUGH’s checkbook

carried the notation “Gift per Eddie [Yessick]. No job.” After McNair’s

retirement, RAST also continued to perform work at McNair’s studio and paid

$8,135.78 for McNair and his wife to take a cruise to Alaska in September 2001.16

C. Bribes of Chandler and Ellis

The Pugh, Rast, and Dougherty defendants also gave, at no charge, goods,

15

After McNair’s retirement, PUGH paid George Word $44,192.75 in the first half of

October 2001, and, at Yessick’s instruction, internally charged the expense to miscellaneous

jobs/construction materials. McNair told George Word that FWDE would make the next

payment. On October 24, 2001, after FWDE’s bookkeeper Rick Brinson saw Dougherty

speaking with McNair in FWDE’s parking lot, Dougherty asked the bookkeeper to write a

$50,000 check to a construction company. About 20 to 30 minutes later, George Word’s

$50,000 invoice, dated a day earlier, arrived by fax. The bookkeeper wrote the check, gave it to

Dougherty, and made an extra copy of the paperwork and kept it at home. Upon being

subpoenaed for these records later, the bookkeeper searched FWDE’s records, but could not find

the invoice. The only copy he found was the extra one he kept at home.

16

After McNair’s retirement, on May 14 and 15, 2001, PUGH, FWDE, and Bobby Rast

each gave McNair a check for $5,000 (totaling $15,000). Bobby Rast’s check was for a

“retirement gift” and FWDE’s was for a “motor home.”

23

services, labor, materials, and other things of value to (1) JCESD Assistant

Director Chandler, and (2) JCESD Engineer and PRC Director Ellis. At a lunch,

PUGH’s President Yessick offered to landscape Chandler’s home. Chandler at

first refused, but weeks later Yessick offered again, and Chandler accepted. PUGH

provided crews and paid for the materials for the extensive landscaping, including

grading, drainage work, and new sod, as well as construction of a patio, walkway,

and retaining walls. Chandler paid nothing for that work.

In October 2001, Yessick arranged and paid for a $610 condo rental for the

Chandler family vacation at the Pelican Beach Resort in Destin, Florida.17

Chandler asked for, and PUGH delivered, a load of sand for Chandler’s house for

free.

In the spring of 2002, Chandler asked Bobby Rast to help with his expenses

for a trip to Europe to attend technical conferences. Ellis planned to attend too. At

RAST’s office, Bobby Rast gave Chandler an envelope containing $5,000 in cash

and told Chandler to split the money with Ellis. Chandler had expected $250 to

$500 and was “uncomfortable and thought about giving it back, but [he] didn’t.”

17

The government also presented evidence that in April 2000, PUGH’s Yessick invited

Chandler on a fishing trip to Bienville Plantation in Florida, where the trip was paid for by

PUGH. Grady Pugh arranged to have Yessick and Chandler fly to Florida in the PUGH

company’s airplane. The jury acquitted PUGH and Yessick on Count 70, which referenced this

trip.

24

Instead, Chandler “eventually gave half” to Ellis.18 The Dougherty defendants also

gave Chandler tickets to Disney World and a trip to San Antonio.

D. The Defense

For the most part, the defendants did not dispute that they provided, at no

charge, these goods, services, labor, materials, and other things of value to

Commissioner McNair.19 Instead, the defendants argued they lacked the “corrupt”

intent necessary for bribery and that the government had failed to prove the

required quid pro quo for the benefits provided to McNair. The defendants also

asserted they helped McNair based on their friendship with him or for goodwill. In

support, defense witnesses testified to McNair’s decades-long friendship with

Roland Pugh, Dougherty, and the Rast family, and described how the contractor-

defendants frequently performed work for McNair at no charge. The contractor-

defendants also contended their experience, skills, and business reputation were

strong enough so that they did not need to resort to bribery to win County

contracts.

The defense spent considerable time attacking the credibility of Grady Pugh,

18

Other JCESD employees also received cash from the contractors. Danny Rast gave

$1,500-$2,000 in cash to JCESD Field Supervisor Larry Creel, who sometimes awarded

emergency work. PUGH gave $500 in cash to Creel for airplane tickets after Creel asked for a

flight on PUGH’s company airplane.

19

Roland Pugh is the only defendant to dispute that he gave anything to McNair.

25

including inconsistencies in his testimony. The defense suggested he was lying out

of hatred for his father Roland Pugh and to obtain a favorable sentence

recommendation from the government.

The government countered the defendants’ corrupt-intent arguments by

offering 404(b) evidence of similar items of value the same contractors had

provided for Swann, Wilson, and Barber (who were not defendants in the McNair

trial). The government argued the large scale and overall pattern of these payments

were inconsistent with the defendants’ claims that they were favors undertaken

merely out of friendship for McNair. The government also presented evidence that

McNair made numerous unexplained cash deposits.20

E. Jury’s Verdicts

Before sending the case to the jury, the district court dismissed several

substantive counts that charged bribes to McNair after his retirement in March

2001, and struck the corresponding overt acts from the conspiracy count (Count 1),

reasoning that 18 U.S.C. § 666 (the bribery statute) could not apply when McNair

was no longer a public official.

In the McNair trial, the jury convicted defendants McNair, PUGH, Roland

20

In the McNair trial, the government did not explain the source of the cash deposits. But

in the USI case, the government showed these cash deposits corresponded with cash withdrawals

from USI, Singh and Key. See US Infrastructure, 576 F.3d at 1206.

26

Pugh, Yessick, RAST, Bobby Rast, Danny Rast, FWDE, and Dougherty on Count

1 of conspiring to bribe McNair. Count 1 alleged 54 overt acts originally. Several

overt acts were dismissed pre-trial, but Count 1, as submitted to the jury, charged

39 overt acts in furtherance of the conspiracy.

As to bribes by the Pugh defendants, the jury convicted defendant McNair

on these substantive bribery counts: 2 ($5,500 for hand railings) and 3 ($11,700 for

hand railings). The jury convicted defendant PUGH on Count 15 (same hand

railing facts as Counts 2 and 3). The jury convicted defendants PUGH and Yessick

on Count 71 ($610 for Chandler condominium rental).

As to bribes by the Rast defendants, the jury convicted defendant McNair on

these substantive bribery counts: 5 ($52,990 for carpentry work by Barry Mosley),

6 ($5,866 for security gate installation by Master Access Controls), 7 ($5,300 for

carpet installation by Clint Gilley), 8 ($5,500 for landscaping work by Bailey &

Sons), 9 (several thousand dollars for fabrication and construction of stairs), and 10

(several thousand dollars for concrete deck construction). The jury also convicted

defendants RAST and Bobby Rast on Counts 19-22 (same facts as Counts 5-8,

respectively), 72 ($2,500 cash to Chandler by RAST and Bobby Rast), and 87

($1,000 cash to Ellis by RAST and Bobby Rast). RAST was also convicted on

Counts 23 (same facts as Count 9) and 24 (same facts as Count 10). The jury

27

convicted defendant Danny Rast on Counts 19, 20, and 22 (same facts as Counts 5,

6 and 8).

Defendant McNair was also convicted on Counts 11 ($27,434 by the

Dougherty defendants for project management and supervision by Bailey) and 12

($16,400 by Dawson for installation of audio visual system). The jury convicted

defendants FWDE and Dougherty on Count 28 (same facts as Count 11).21

In summary, the jury convicted defendant McNair on the bribery conspiracy

count and ten substantive bribery counts. The jury convicted defendants PUGH,

Roland Pugh, and Yessick on the bribery conspiracy count; defendant PUGH on

two substantive bribery counts; and defendant Yessick on one substantive bribery

count. The jury convicted defendants RAST, Bobby Rast, and Danny Rast on the

bribery conspiracy count; defendant RAST on eight substantive bribery counts;

defendant Bobby Rast on six substantive bribery counts; and defendant Danny Rast

on three substantive bribery counts. The jury convicted defendants FWDE and

Dougherty on the bribery conspiracy count and on one substantive bribery count

21

In the McNair trial, the jury acquitted defendant McNair on Count 4 ($30,000 cash from

the Pugh defendants), defendants PUGH and Yessick on Count 13 ($20,000 cash to McNair) and

on Count 70 ($1,000 trip for Chandler to Bienville Plantation, Florida), and defendants PUGH

and Roland Pugh on Count 14 ($10,000 cash to McNair). The $30,000 in Count 4 appears to

consist of the cash in Counts 13 and 14.

The McNair jury also acquitted defendant Danny Rast on Count 21 ($5,300 bribe of

McNair for carpet installation through Clint Gilley), defendants RAST and Danny Rast on Count

89 ($1,000 cash to JCESD employee Larry Creel), and defendants RAST and Bobby Rast on

Count 126 (obstruction of justice in connection with withholding items from the grand jury).

28

each. All defendants but Yessick appeal all conviction counts.

III. THE SWANN TRIAL (05-544)

The Swann trial, held from September 19 to October 2, 2006, involved more

than $330,000 in bribes paid to County employee Swann by the Pugh, Rast and

Dougherty defendants. The government called 25 witnesses, including Wilson,

Chandler and Ellis. The defense called 20 witnesses, including Grady Pugh. No

named defendants testified except for Swann.

The government’s witnesses described in great detail the bribes to Swann

and how Swann financially helped the Pugh, Rast, and Dougherty defendants in

their contracts with and payments from Jefferson County. And to counter the

defendants’ lack-of-corrupt-intent defense, the government introduced 404(b)

evidence describing bribes that the same Pugh, Rast, and Dougherty defendants

gave to McNair, Barber, Wilson and Chandler.22

A. Swann Helps Contractor-Defendants

JCESD Director Jack Swann reported directly to Commissioner McNair. It

was Swann’s responsibility to implement the EPA consent decree, which included

recommending engineering firms to McNair and negotiating the scope and price of

22

For example, in the Swann trial, the government presented evidence about how RAST

bought Barber a piece of land. This evidence is outlined later in this opinion under the Barber

trial evidence. Defendant Barber pled guilty to this charge.

29

no-bid engineering contracts, such as with FWDE. Swann supervised the sewer

work and made recommendations to McNair for payment approvals and change

orders. Swann also was able to grant time extensions and field directives that

greatly benefitted RAST and PUGH.

For example, in May 1998, the JCESD awarded the Vestavia Trunk Sewer

Replacement project to PUGH. PUGH’s failure to meet the project’s May 17,

2000 completion date would trigger a liquidated damages clause, obligating PUGH

to pay $1,000 per day. In March 2000, PUGH was running far behind schedule on

this project and requested a 120-day extension to the May 17 completion date.

Swann initially denied PUGH’s request.

On June 13, 2000, PUGH renewed its request, this time for a 180-day

extension. On July 10 — five days after PUGH’s Yessick hired Guthrie

Landscaping (“Guthrie”) to landscape Swann’s property — Swann granted

PUGH’s request for a 180-day extension to the May 17 completion date. Swann’s

extension saved PUGH $180,000 in potential liquidated damages.

In July 2000, the JCESD awarded the Valley Creek Trunk Relief Tunnel

project (designed by FWDE) to RAST and its joint venture partner W.L. Hailey.

In December 2001, during the first phase of the project, RAST’s tunnel-boring

machine became stuck in the ground. An independent engineer concluded the

30

machine became stuck because RAST may have discounted certain information in

a geotechnical survey. And the JCESD’s supervising engineer faulted RAST for

using “the wrong machine.” Nevertheless, Swann authorized RAST to remove the

machine at a cost of $2.6 million to Jefferson County.

Further, Swann declined to invoke the performance bond against RAST,

which would have guaranteed the project’s completion at the original contract

price of $27.8 million. Instead, RAST won a re-bid for an additional contract

worth $23.8 million. Consequently, the County effectively paid RAST over $50

million for work RAST was obligated to perform under the original $27.8 million

contract.

Swann also approved a lucrative field directive that benefitted PUGH

($827,417) and three that benefitted RAST ($2,020,367). Although in the

County’s internal accounting system Swann recorded the County’s payments to the

RAST-Hailey joint venture for each of these field directives as payments for the

Valley Creek Tunnel Relief project, none of the field directives involved work on

that project. Swann also exercised great influence over the selection of engineers,

like FWDE.

B. Bribes of Swann

In 1998, Swann and his wife Nila purchased a house two doors down from

31

their own residence. The Swanns lived in their residence while they renovated

their new home. Between September 1998 and June 2002, the Swanns put over

$600,000 worth of additions and improvements into their new home. FWDE,

RAST, and PUGH provided Swann, at no charge, more than $330,000 in goods,

services, labor, and materials for that work. For certain improvements paid for by

FWDE, Swann admitted he did not reimburse FWDE or Dougherty. As they had

done for the McNair studio project, the contractor-defendants worked together on

Swann’s new home. While the work was going on, Swann periodically came over

to observe the work at the new home. While Swann was recommending and

approving JCESD actions worth millions of dollars, the contractor-defendants were

providing hundreds of thousands of dollars in materials and services to renovate

and expand Swann’s new home.

Specifically, in the fall of 1998, Dougherty sent FWDE supervisors Wayne

Hendon and Bill Bailey to meet with Swann and his wife about plans to remodel

their new home. Over the course of the three-year project, FWDE employees

continually supervised the remodeling of the new home. From about October 1999

to March 2001, FWDE paid employee John Stanger $28,839 for his work at

Swann’s home. During that time period, FWDE’s Hendon spent half of every

work day supervising other contractors at Swann’s home and billed his time as a

32

nonpaying job. FWDE paid Hendon $94,090 for his work at Swann’s home. In

the fall of 1998, FWDE hired subcontractor Dudley Davis for framing, costing

over $28,000. Dougherty visited the site periodically.

In the winter of 1999, Bobby Rast sent RAST superintendent Luke Cobb to

supervise RAST crews who did demolition work and poured concrete for Swann’s

new home. Bobby Rast had RAST employee Derek Houston serve as a point of

contact for RAST’s suppliers and subcontractors for Swann’s home and paid

Houston $6,300 for his work there. In 2000, RAST paid its employees $18,867.20

in miscellaneous labor costs for their work on Swann’s home and McNair’s studio.

RAST avoided using Swann’s name on invoices, delivery tickets, and internal

accounting reports, instead using his nickname, “Little Big Man.”

RAST also bought bricks and other materials, and paid different

subcontractors for installation of hardwood floors and stairs and exterior

brickwork, plumbing work, and painting. RAST paid $3,535 for flooring and

stairs installation that Don’s Carpet One performed at Swann’s new home in 2000

or 2001. In the fall of 1999, RAST paid $1,964 for brick and mortar work by

Alabama Brick Delivery. In the fall of 2000, RAST paid Kimro Painting &

Services, Inc. (“Kimro Painting”) $9,733 for painting work at Swann’s new home.

In May 2001, RAST paid $4,441.50 to Sherman International for concrete work.

33

The delivery ticket for ready-mix concrete RAST purchased from Sherman

International directed delivery to the Swann address but identified it as the “Rast

Residence.” In October 2001, RAST paid Brown Mechanical Contractors, Inc.

(“Brown Mechanical”) for $9,540 worth of plumbing work performed at Swann’s

new home. Bobby Rast had the payments to Brown Mechanical coded as expenses

to RAST’s Jefferson County contracts for “Annual Rehab” and “Minor Pump

Station.”

In the summer of 2000, PUGH began contributing to Swann’s new home

remodeling. PUGH’s President Yessick hired subcontractor Aquatic Gardens to

install a waterfall and koi pond at a cost of $7,422. Yessick told Aquatic Gardens

to send its invoices to PUGH and not mention Swann by name.

Yessick hired other subcontractors for various work after Swann claimed to

have overpaid for the remodeling. Yessick hired Guthrie to help landscape

Swann’s new home, and in July 2000 Guthrie gave an initial estimate of $40,000.

PUGH’s book entries and invoices for Guthrie’s work on Swann’s home were

never kept in Swann’s name, but always under some other code. Yessick had

PUGH’s accountant charge Guthrie’s expenses to “Metro Park Roadway,” a

Jefferson County job. By December 2001, PUGH had paid Guthrie $93,680 for its

landscaping work at the Swann home, which included $1,200 a month for ongoing

34

weekly yard maintenance.

In January 2002, PUGH’s President Yessick asked Guthrie to stop

submitting invoices to PUGH and instead PUGH advanced Guthrie $47,000 for

three years worth of landscaping and maintenance on Swann’s new home; and

Guthrie performed about $10,000 worth of work. Although PUGH’s manager of

accounts testified she filed Guthrie’s invoices regularly and that PUGH kept these

records for 5 to 7 years, the invoices were not found during the government’s

investigation.23 In December 2001, Yessick used a PUGH check to buy $1,000

worth of bookstore gift certificates for Swann.24

In August 2002, after Grady Pugh and Yessick heard rumors of a

government investigation, Guthrie was asked to stop working on Swann’s

property, even though there was a balance remaining on the advance Yessick had

given to Guthrie. At that time, Yessick directed his assistant to send an invoice to

Swann’s mother-in-law for $12,572 for tree removal and “remodeling work.” In

23

Count 101 ($47,000 check from Guthrie) was dismissed on the government’s motion

during the third day of trial. On that trial day, Paul Guthrie (the owner of Guthrie) testified that,

even though Guthrie received a $47,000 check from PUGH’s Yessick for Guthrie’s work at

Swann’s home, Guthrie to date had done about $10,000 worth of work on Swann’s home, not

$47,000. Swann was convicted on Count 52, which charges him with receiving approximately

$100,000 in work done by Guthrie.

24

The government also presented evidence that Bobby and Danny Rast used at least

$4,000 of RAST’s funds to pay for Swann’s expenses on two trips to England. Swann and the

Rast defendants were acquitted on Counts 59 (Swann accepted $3,015 trips to England and

Scotland) and 68 (Rast defendants paid Swann for those trips).

35

September 2002, Yessick instructed his assistant to create an invoice, this time to

Swann’s mother, for $46,684 of landscaping work. In November 2002, the

Swanns paid PUGH this amount with checks drawn from joint checking accounts

the Swanns had taken out with their mothers, after taking out two home equity

loans in each of their mothers’ names.25

C. The Defense

In the Swann trial, the defense basically was that the defendants lacked the

corrupt intent to commit bribery and acted at all times in good faith. The

contractor-defendants contended they performed work on Swann’s home out of

goodwill and without expecting anything in return. Swann argued he did not have

an intent to be influenced by the things the contractor-defendants gave him.

In addition, the defendants presented evidence showing that Nila Swann

(Swann’s wife) had an engineering background, acted as her own general

contractor, hired and supervised subcontractors, and initially paid the bills for the

work on the Swann home. Swann testified that Nila handled all of the couple’s

financial matters and that he assumed she was paying for the work. According to

Swann, Nila frequently changed her mind, was not a good manager, and disputed

the cost and scope of the work with the subcontractors. Dougherty and the Rast

25

The plan all along had been for the Swanns’ mothers to move into the old home after

the new home was built.

36

brothers were longtime friends of Nila and Jack Swann. Swann stated that

Dougherty and the Rast brothers stepped in only to offer advice and take over

supervision to make the work go more smoothly. The contractor-defendants

claimed that they paid several of these disputed bills to preserve their own business

relationships with the subcontractors and their expectation was that the Swanns

would eventually reimburse them. However, with the sole exception of PUGH’s

belated invoices to Swann for landscaping and remodeling work, there was no

evidence that the Swanns paid the contractor-defendants for the work at their new

home.

As to the conspiracy charge, the defendants also claimed that the

government had not presented sufficient evidence to show an unlawful agreement

between Swann and any of the contractor-defendants.

In the Swann trial, the government presented 404(b) evidence about similar

items of value the same contractor-defendants had provided to McNair for his

studio, their help with McNair’s home in Arkansas, and other benefits they

provided for McNair, Barber, and Chandler.

D. Jury’s Verdicts

The jury convicted defendants Swann, PUGH, Yessick, RAST, Bobby Rast,

FWDE, and Dougherty of conspiring to bribe Swann (Count 51).

37

The jury convicted Swann on these substantive bribery counts: 52 ($100,000

from PUGH through subcontractor Guthrie Landscaping), 53 ($7,422 from PUGH

through subcontractor Aquatic Gardens), and 54 ($1,000 in gift certificates to

Alabama Book Smith from PUGH). The jury convicted defendants PUGH and

Yessick on Counts 61-63 (same facts as 52-54, respectively).

The jury convicted defendants Swann, PUGH and Yessick on Counts 90-100

(honest services mail fraud involving PUGH’s paying $93,680 in checks to Guthrie

for landscaping work performed for Swann).

The jury also convicted defendant Swann on Counts 57 ($9,733 in painting

by Kimro Painting from RAST) and 58 ($8,940 in plumbing by Brown Mechanical

from RAST) and defendants RAST and Bobby Rast on Counts 66 and 67 (same

facts as Counts 57 and 58, respectively).26

The jury also convicted defendant Swann on Count 60 ($24,176 for

construction supervision by FWDE’s Stanger) and defendants FWDE and

26

In the Swann trial, the jury acquitted defendant Danny Rast on Count 51 (conspiracy to

bribe Swann), on Count 66 ($9,733 in painting work for Swann by Kimro Painting) and on

Count 67 ($8,940 in plumbing work for Swann by Brown Mechanical).

The jury also acquitted defendant Swann on Count 59 ($3,015 bribe received by Swann

from the Rast defendants in the form of England and Scotland trips); defendants RAST, Bobby

Rast, and Danny Rast on Count 68 ($3,015 bribe given to Swann in the form of England and

Scotland trips); and defendant PUGH on Count 125 (obstruction of justice).

38

Dougherty on Count 69 (same facts as Count 60).27

In summary, the jury convicted defendant Swann on the bribery conspiracy

count, six substantive bribery counts, and eleven honest services mail fraud counts.

The jury convicted defendants PUGH and Yessick on the bribery conspiracy count,

three substantive bribery counts, and eleven honest services mail fraud counts. The

jury convicted defendants RAST and Bobby Rast on the bribery conspiracy count

and two substantive bribery counts. The jury convicted FWDE and Dougherty on

the bribery conspiracy count and one substantive bribery count. Defendants

Swann, PUGH, RAST, Bobby Rast, FWDE, and Dougherty appeal all conviction

counts.

27

When the Indictment was severed into the five separate cases for trial, Counts 107-121

of the Indictment were scheduled to be tried in the Wilson trial (05-545). The government later

dismissed Counts 107-121 and re-filed them essentially as Counts 1-17 in a new indictment

docketed as case number 06-084. This case (06-084) was consolidated for trial with the Swann

trial (05-544).

The Swann jury heard evidence on these 17 counts of honest services mail fraud under 18

U.S.C. §§ 1341 and 1346. In November 1999, Wilson resigned from the JCESD and formed his

own engineering consulting firm, CEDS. With Swann’s help, Wilson immediately obtained two

no-bid engineering contracts ($483,000 and $350,000) from the County worth a total of

$833,000. To get around “revolving door” provisions in Alabama’s ethics law that prohibited

former employees from doing business with the County for two years, Wilson made

arrangements for his firm to operate as FWDE’s “subcontractor.” FWDE was awarded the

contracts. Even though Wilson’s firm performed the work, FWDE passed Wilson’s invoices on

to the County under FWDE’s own name. These 17 counts of honest services mail fraud related

to money paid to CEDS.

Wilson and CEDS pled guilty to one count each and are not defendant-appellants in the

Swann appeal. The Swann jury acquitted Swann, FWDE, and Dougherty on these 17 counts

involving money paid to CEDS through FWDE. This evidence was introduced only in the

Swann trial, not in the Wilson trial.

39

IV. THE WILSON TRIAL (05-545)

In the Wilson trial, held from June 1 to 13, 2006, defendants Wilson and

PUGH were charged with conspiring to commit bribery (Count 75). Defendant

Wilson was charged with accepting from PUGH a $4,500 bribe in the form of a

scholarship for his son to attend the University of Alabama at Birmingham

(“UAB”) (Count 76). The defense argued that the scholarship was not intended as

a bribe.

The government called 9 witnesses, including Chandler, Grady Pugh, and

Roland Pugh’s secretary Janice Kuykendall. The defense called 3 witnesses.

A. Wilson Helps PUGH

Defendant Wilson was the Chief Civil Engineer for the JCESD and served

on the PRC. As Chief Civil Engineer, Wilson was in charge of all sewer line work.

Wilson was also the project engineer on several construction contracts, including

some of PUGH’s. As project engineer, defendant Wilson approved all sewer

contractor pay requests, which were submitted monthly, before sending them on to

Chandler, the JCESD’s Assistant Director. Project engineers also approved

requests for extensions of time to complete contracts. Contractors were subject to

a penalty of $1,000 per day if they failed to complete a contract on time.

On July 26, 1999, PUGH submitted to USI — the outside consulting

40

engineer for the “Village East 3” contract — a request for a 175-day extension to

complete work on the project. The completion date was May 11, 1999. On July

27, 1999, USI forwarded the request to defendant Wilson. When PUGH requested

the 175-day extension on July 26, it was already 76 days overdue. PUGH was at

risk for a $76,000 penalty — $1,000 in liquidated damages for each of the 76 days.

On August 20, 1999, defendant Wilson faxed Grady Pugh a letter instructing

him to send $4,500 to UAB for Wilson’s son. On August 23, defendant Wilson

approved the extension. This saved PUGH not only the $76,000 penalty for the

delay from May 11 to July 26 but also $1,000 per day for each day until PUGH

completed the job. On August 24, 1999, PUGH sent a $4,500 check to UAB for

Wilson’s son.

In addition, defendant Wilson served on the PRC, which set technical

standards for constructions firms who bid on contracts for the County’s sewer

project. Some of the projects called for “cured-in-place” (“CIP”) or “trenchless”

techniques for replacing existing sewer lines. In the late 1990s, this was a

relatively new technology, and only a handful of contractors had the expertise to

do it properly. Like other municipalities, Jefferson County required contractors to

meet specified minimum requirements for prior experience before they were

permitted to bid on CIP work.

41

In September 1999, the PRC significantly tightened these requirements,

making it more difficult for new contractors to pre-qualify. However, the three

contractors who were already doing CIP work in Jefferson County were

grandfathered in and did not have to go through the pre-qualification process. Two

of those three CIP contractors were joint venture partners with RAST and PUGH.

Although the three contractors did compete against each other in a sealed bidding

process, Jefferson County’s qualification requirements cut down the number of

competitors and enabled these CIP contractors to charge Jefferson County higher

prices than they could charge other municipalities for similar work. When two

non-local competitors finally qualified to join the bidding in 2001, prices quickly

dropped from over $50 per linear foot to about $28.

The government also offered 404(b) evidence showing certain items of value

that PUGH provided for McNair, Chandler, and Barber, and that RAST provided

for Wilson,28 and the favorable decisions PUGH obtained from the JCESD. Grady

Pugh offered similar testimony, and, as in the McNair trial, the defense again

attempted to impeach Grady Pugh by pointing out inconsistencies in his testimony,

his hatred of his father (Roland Pugh), and his efforts to obtain a favorable

sentencing recommendation from the government.

28

RAST paid for Wilson to spend a week in London and a weekend in Paris with his wife.

42

B. Bribes of Wilson

Sometime in mid-1999, defendant Wilson complained to Grady Pugh over

lunch about the cost of college and that he might not be able to afford to send his

son Justin to UAB for the upcoming semester (fall 1999). Grady Pugh responded

that PUGH “had done a lot” for “colleges and education” and suggested PUGH

might “sponsor a scholarship,” but wanted to make sure “we couldn’t get in any

trouble for it.” Sometime in August 1999, Wilson called Grady Pugh to accept the

scholarship offer.

As noted above, on August 20, 1999, defendant Wilson used a JCESD fax

machine to send Grady Pugh a letter expressing his gratitude and instructing him to

send a $4,500 check to UAB to credit Wilson’s son’s account. PUGH sent the

check to UAB four days later. There was no evidence that the son ever sent PUGH

an application for the scholarship. Grady Pugh’s secretary typed the letter and

signed Grady Pugh’s name. Grady Pugh never met nor spoke with Wilson’s son

before sending the $4,500 check to UAB on August 24, 1999. The accompanying

letter simply asked UAB to credit the payment to Wilson’s son’s account and gave

no other instructions. Although PUGH had made charitable contributions to

schools and colleges, including UAB, it had never previously awarded a

scholarship to an individual student. Grady Pugh thought the money would go

43

toward “books and tuition” but could not remember exactly what Wilson had said

to him.

Grady Pugh was unaware that FWDE had already paid Wilson’s son’s

tuition and fees for the 1999-2000 school year.29 UAB applied PUGH’s

scholarship money to Wilson’s son’s account in four quarterly installments of

$1,125 per installment, as was its standard practice for scholarships when a donor

did not instruct otherwise. UAB took about one third of the PUGH money to cover

the son’s housing and other fees, and disbursed the remainder of the PUGH money

directly to the son each quarter. The installments were disbursed to the son in

September 1999, December 1999, March 2000 and June 2000. Wilson’s son

signed a receipt each time. Grady Pugh testified that he never did anything after

August 1999 to follow up on the “scholarship” and he did not know that UAB

would defer full payment into the following year. The government did not present

any evidence that Wilson was aware of UAB’s payment arrangements.

Grady Pugh explained his intent in giving the scholarship to Wilson’s son:

When you offer somebody something like that . . . you expect them to

help you if they can. And when I did that for [Wilson], I felt like if he

got a chance to help us, he would.

Grady Pugh explained that giving things of value to County employees provided

29

The government did not allege there was anything improper about the FWDE

scholarship.

44

PUGH with the “general benefit” of “hav[ing] preferential treatment and, you

know, if we had problems it would help resolve the problems. Numerous ways

that things could be made easier.”

C. Jury’s Verdicts

The jury convicted defendants Wilson and PUGH on Count 75 and

defendant Wilson on Count 76. Wilson has not appealed. PUGH appeals as to

Count 75.30

V. THE BARBER TRIAL (05-542)

In the Barber trial, held from January 8 to 17, 2007, defendants Barber,

PUGH, Roland Pugh, and Yessick were charged with conspiring to bribe Barber

by, among other things, PUGH’s paying and Barber’s accepting $47,927 in real

property and nearly $1,200 in trips to casinos and beaches (Count 78). Defendants

PUGH and Roland Pugh were also charged with bribing Barber by giving him that

$47,927 property (Count 83), and defendant PUGH was charged with paying for

these trips (Counts 84-86).31

Defendants Barber and Yessick pled guilty to Count 78. Only PUGH and

30

Count 77 charged PUGH with the substantive offense of bribing Wilson with the

scholarship, but was dismissed before trial on the government’s motion.

31

The trips were to Isle of Capri Casino, Vicksburg, Mississippi ($148), Beau Rivage

Resort & Casino, Biloxi, Mississippi ($546), and Phoenix III Condominiums, Gulf Shores,

Alabama ($481).

45

Roland Pugh went to trial. The government called 7 witnesses, including

Chandler, Grady Pugh and Yessick. The defense called 7 witnesses, including

Barber.

A. Barber Helps PUGH

Barber supervised the JCESD’s twenty-six job-site County inspectors.

Barber was responsible for hiring sewer contractors to do no-bid emergency work,

approving contractors’ paperwork, and certifying their expenses before sending the

expenses to JCESD Assistant Director Chandler.

In January 2000, Barber determined the sewer pipes in the Paradise Lake

subdivision should be replaced on an emergency basis instead of being repaired.

On January 7, Barber told City Inspector Hodges that Barber had chosen a

contractor who could do the job in about 45 days. PUGH’s President Yessick sent

Barber a letter, dated January 27, 2000, offering that PUGH could do the job for

about $1.2 million. That same day, Yessick also sent Hodges a letter, dated

January 27, 2000, stating that PUGH would be performing the job. Given that

emergency work contracts were limited to $50,000 or less, PUGH eventually

received a no-bid field directive in the amount of $857,000, on which PUGH made

a 50% profit. However, because Barber had classified the work as an emergency,

there was no contract for Paradise Lake on which to put the field directive. The

46

emergency work contract therefore was placed on the unrelated multi-million-

dollar Cahaba River project.

B. Bribes of Barber

Beginning in 1997 and continuing through 2001, PUGH’s President Yessick

caused PUGH to pay to send Barber on an annual beach resort or casino vacation

in locations including Orange Beach, Alabama and Biloxi and Vicksburg,

Mississippi. PUGH paid $148 for Barber’s stay in Vicksburg, $546 for his stay in

Biloxi, and $481 for his stay at the Phoenix III Condominiums in Orange Beach,

Alabama. PUGH recorded the payments for the trips to Orange Beach and Biloxi

in PUGH’s books as sewer “rehab” projects.

In the spring of 2000, Barber asked PUGH’s Yessick if he would find and

purchase a piece of property in McCalla, Alabama on which Barber could retire.

Yessick consulted a realtor for this purpose, visited several properties himself, and,

in November 2000, signed a contract to purchase land in the name of “Roland

Pugh” for $47,500. The next week, Yessick gave the realtor a check for $1,000,

signed by PUGH’s CFO Lorelei Heglas. In anticipation of the cost PUGH would

incur for the land purchase, Yessick instructed PUGH CFO Heglas to charge

$45,000 to the Paradise Lake project.

However, days before closing, Roland Pugh’s administrative assistant Janice

47

Kuykendall told Yessick that PUGH no longer intended to buy the land in PUGH’s

name but instead planned to give Barber a cashier’s check to buy the land in his

own name. PUGH assistant Kuykendall told Yessick to travel to Tuscaloosa to get

the check and then take back from the realtor all documents referring to PUGH.

PUGH’s Yessick got the check, which was made out to the settlement

attorney for $46,877, and on which the “NAME OF REMITTER” line was left

blank. Yessick then gave Barber the check. Barber closed on the land contract in

his own name on December 18, 2000. Yessick also gave Barber a cashier’s check

for $1,050 to replace the check he gave to the realtor. The realtor prepared papers

to refund PUGH’s deposit.

In September 2002, a newspaper article revealed an investigation into PUGH

and Barber. Six months later, over a seven-week period, Barber sent PUGH a

series of checks amounting to $46,877. Yet Barber paid no interest, and there was

no evidence of any document indicating a loan.

At trial Yessick testified that he paid the charged bribes in the hope that

Barber, who supervised the JCESD’s job-site inspectors, would assist if PUGH

were to have a problem with an inspector being “irrational.” Counsel for PUGH

and Roland Pugh argued that they did not provide things to Barber with the intent

48

to influence him.32 The government presented 404(b) evidence showing that

PUGH’s Yessick paid for Chandler to go on a fishing vacation, that Grady Pugh

bought a carpet for McNair, that Grady Pugh made cash payments to McNair, and

that PUGH worked on McNair’s home in Arkansas.

C. Jury’s Verdicts

The jury convicted PUGH on Counts 78 (bribery conspiracy), 83 ($47,927

in real property), and 84-86 (trips). Roland Pugh was acquitted on Counts 78 and

83, the only counts against him in the Barber trial. PUGH appeals all conviction

counts.

VI. QUID PRO QUO ISSUES

All defendant-appellants argue that their bribery convictions under 18

U.S.C. § 66633 must be vacated because the Indictment failed to allege, and the

government failed to prove, the contractor-defendants gave specific benefits to

County employees in exchange for, and with the intent that, the employees perform

32

Defendant Roland Pugh called Barber to testify that he (Barber) never met Roland Pugh

until after the relevant time period and that Barber did not have an intent to be influenced by the

trips that PUGH bought for him.

33

The defendant-appellants’ § 666 convictions are: (1) McNair, Counts 1-3, 5-12, 32; (2)

Swann, Counts 51-54, 57, 58, 60; (3) PUGH, Counts 1, 15, 51, 61-63, 71, 75, 78, 83-86; (4)

Roland Pugh, Count 1; (5) RAST, Counts 1, 19-24, 51, 66, 67, 72, 87; (6) Bobby Rast, Counts 1,

19-22, 51, 66, 67, 72, 87; (7) Danny Rast, Counts 1, 19, 20, 22; (8) FWDE, Counts 1, 28, 51, 69;

and (9) Dougherty, Counts 1, 28, 51, 69.

49

a specific official act, termed a quid pro quo.34 The defendant-appellants also

argue the district court erred, at a minimum, by refusing to charge the jury that the

government must prove a specific quid pro quo. We begin by reviewing the

relevant parts of § 666.35

A. 18 U.S.C. § 666

Section 666 proscribes theft and bribery in connection with programs of

local governments receiving federal funds.36 Section 666(a)(1)(B) criminalizes a

local government employee’s “corruptly” soliciting or accepting a bribe:

(a) Whoever . . .

34

Black’s Law Dictionary defines quid pro quo as follows: “An action or thing that is

exchanged for another action or thing of more or less equal value; a substitute.” Black’s Law

Dictionary 1367 (9th ed. 2009). Defendants argue the government must prove a specific or

identifiable thing of value was exchanged for a specific or identifiable official act.

35

The interpretation of a statute is a question of law we review de novo. United States v.

Searcy, 418 F.3d 1193, 1195 (11th Cir. 2005); United States v. Mazarky, 499 F.3d 1246, 1248

(11th Cir. 2007). Whether an indictment is sufficient is also a question of law reviewed de novo.

United States v. Steele, 178 F.3d 1230, 1233 (11th Cir. 1999). “An indictment is sufficient if it:

(1) presents the essential elements of the charged offense, (2) notifies the accused of the charges

to be defended against, and (3) enables the accused to rely upon a judgment under the indictment

as a bar against double jeopardy for any subsequent prosecution for the same offense.” Id. at

1233-34 (quotation marks omitted).

36

A predicate to a § 666 offense is that the defendant must be an agent of an

“organization, government, or agency [that] receives, in any one 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(b). It is undisputed that

Jefferson County received the requisite amount of federal funds and that McNair, Swann,

Wilson, Barber, Chandler, Ellis, and Creel were employees and thus agents of Jefferson County.

50

(1) being an agent[37 ] of [a] local . . . 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

. . . government, or agency involving anything of value of

$5,000 or more; or

shall be fined . . . , imprisoned not more than 10 years, or both.

18 U.S.C. § 666(a)(1)(B). Defendants McNair, Swann, Wilson and Barber, as

Jefferson County employees, violated § 666(a)(1)(B) if: (1) they solicited or

accepted anything of value; (2) with the corrupt intent to be influenced or

rewarded; (3) in connection with any business, transaction, or series of transactions

of Jefferson County involving anything of value of $5,000 or more.38 Id. The

37

As to “agent,” the district court in the McNair trial charged the jury: “The term ‘agent’

means a person authorized to act on behalf of a local government and includes an employee,

officer, manager or representative of a local government. Jefferson County, Alabama is a local

government of Alabama.” In the Swann, Barber, and Wilson trials, the district court charged the

jury: “The term ‘agent’ as relevant to this case means any employee, officer, director, manager

or representative of a local government. Jefferson County, Alabama, is a local government of

Alabama.”

38

The $5,000 in § 666(a)(1)(B) and (a)(2) refers to the value of the “business, transaction,

or series of transactions,” not the value of the bribe. See United States v. Zimmermann, 509

F.3d 920, 927 (8th Cir. 2007) (concluding a benefit of more than $5,000 received for less than

$5,000 in bribes was sufficient for a § 666(a)(1)(B) conviction); see also Salinas v. United

States, 522 U.S. 52, 57, 118 S. Ct. 469, 473 (1997) (“Subject to the $5,000 threshold for the

business or transaction in question, the statute forbids acceptance of a bribe by a covered official

. . . .”); United States v. Castro, 89 F.3d 1443, 1454 (11th Cir. 1996) (describing in dicta the

$5,000 element in § 666(a)(2) as “in connection with any business transaction [sic] or series of

transactions”); but see United States v. Abbey, 560 F.3d 513, 521 (6th Cir.) (stating in dicta that

“§ 666 contains . . . a requirement that the illegal gift or bribe be worth over $5,000”), cert.

denied, 130 S. Ct. 739 (2009). Where the bribe-giver receives an intangible benefit, some courts

51

counts in the Indictment as to McNair and Swann track the language of the statute.

Section 666(a)(2) also criminalizes “corruptly” offering or giving a bribe to

a local government employee:

(a) Whoever . . .

....

(2) corruptly gives, offers, or agrees to give anything of value to

any person, with intent to influence or reward an agent of [a] . . .

local . . . 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 . . . , imprisoned not more than 10 years, or both.

Id. § 666(a)(2). The contractor-defendants — PUGH, Roland Pugh, RAST, Bobby

Rast, Danny Rast, FWDE, and Dougherty — violated § 666(a)(2) if: (1) they gave

to a County employee anything of value; (2) with the corrupt intent to influence or

reward them; (3) in connection with any business, transaction, or series of

transactions of Jefferson County involving anything of value of $5,000 or more.

Id. The counts in the Indictment as to these contractor-defendants also track the

language of § 666(a)(2).

have used the bribe amount as a proxy to stand for the value of the business or transaction. See

United States v. Marmolejo, 89 F.3d 1185, 1194 (5th Cir. 1996) (using, under § 666(a)(1)(B), the

more than $5,000 paid to sheriff to determine the value of conjugal visits received by prisoner);

United States v. Fernandes, 272 F.3d 938, 944 (7th Cir. 2001) (using the value of bribes to

prosecutor, under § 666(a)(1)(B), where prosecutor received bribes in exchange for his

expunging the bribe-givers’ DUI convictions). Here, the parties do not dispute that the $5,000

level was met.

52

It is well established in this Circuit that an indictment is sufficient if it tracks

the language of the statute and provides a statement of facts that gives notice of the

offense to the accused. See United States v. Jordan, 582 F.3d 1239, 1246 (11th

Cir. 2009); United States v. Walker, 490 F.3d 1282, 1296 (11th Cir. 2007); United

States v. Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006); United States v. Ndiaye,

434 F.3d 1270, 1299 (11th Cir. 2006). By listing the items of value received or

given by the defendants, each count of the Indictment provides sufficient facts and

circumstances to give adequate notice of the charges to be defended against. Thus,

we readily determine the Indictment itself was not defective for failure to allege a

specific quid pro quo.

B. Paradies and US Infrastructure Decisions

Nonetheless, this does not resolve whether the language in § 666(a)(1)(B) or

(a)(2) effectively requires the government to prove a specific quid pro quo to

obtain a § 666 conviction. This question has been before this Court twice before

but only under plain error review, and even then, we did not squarely answer it.

See United States v. US Infrastructure, 576 F.3d at 1212-14; United States v.

Paradies, 98 F.3d 1266, 1289 (11th Cir. 1996).

In Paradies, the defendant claimed that the district court erred in failing to

charge the jury that a quid pro quo was an element required to convict under § 666

53

Id. at 1289. This Court did not decide if quid pro quo was an element but

concluded there was no reversible jury charge error because the jury charge tracked

the statutory language of § 666 and the defendant did not object to the charge. Id.

The Paradies Court also rejected a challenge to the sufficiency of the

evidence. Id. The Paradies Court stated: “the evidence at trial was sufficient for a

jury to find that Jackson [the official] accepted payments for his votes and his

influence upon the City Council and the administration,” and “[s]uch a finding

would satisfy any quid pro quo requirement under the statute.” Id. In other words,

Paradies concluded that even if § 666 requires a quid pro quo, that requirement is

satisfied by showing a series of payments intended generally to influence the

official’s decisions.

Subsequently, our United States v. US Infrastructure decision involved an

appeal from the fifth trial (the USI trial, 05-543) that arose out of the Indictment

here. US Infrastructure, 576 F.3d at 1202-03. The defendants in US Infrastructure

argued the jury charges on the § 666 counts were erroneous because they did not

include their proposed instruction that the jury must find a specific quid pro quo to

convict under § 666. Id. at 1213. This Court concluded that the district court “did

not commit plain error by refusing [defendants’] quid pro quo [jury] instruction.”

Id. at 1214. As its sole basis for this conclusion, US Infrastructure stated this

54

Court had already rejected this argument in two prior cases: “This Court has

rejected the argument that the government must ‘show a direct quid pro quo

relationship between [the defendants] and an agent of the agency receiving federal

funds.’” US Infrastructure, 576 F.3d at 1214 (quoting United States v. Castro, 89

F.3d 1443, 1454 (11th Cir. 1996), and citing Paradies, 98 F.3d at 1289). However,

as shown above, Paradies did not actually make a holding to that effect. Neither

did United States v. Castro.39 Nonetheless, US Infrastructure itself holds a specific

quid pro quo is not required for a § 666 conviction. Because US Infrastructure was

only plain error review, we now make the same holding but under de novo review.

We begin with the statutory language itself.40 Importantly, § 666(a)(1)(B)

and (a)(2) do not contain the Latin phrase quid pro quo. Nor do those sections

39

In Castro, the issue was whether § 666(a)(2) required that the bribe-givers intended to

enter into a direct exchange with an agent of an entity receiving the federal funds, or if it was

sufficient that they offered the bribe to a third-person middleman with the intent to influence that

agent by having that middleman authorize that agent to issue payments to the defendants.

Castro, 89 F.3d at 1453-54. The Castro Court concluded that “influence” under § 666 could be

exercised indirectly and that it was sufficient that the defendants intended to influence the agent

by causing a middleman to authorize the agent to issue payments. Id. Although in reaching this

conclusion the Castro Court stated, “[w]e reject appellants’ suggestion that the government had

to show a direct quid pro quo relationship between [the defendants] and an agent of the agency

receiving federal funds,” id., Castro was addressing whether there was a “directness”

requirement between the bribe-giver and the agent and did not answer the question before us

here.

40

“When construing a criminal statute, [this Court] begin[s] with the plain language;

where ‘the language Congress chose to express its intent is clear and unambiguous, that is as far

as we go to ascertain its intent because we must presume that Congress said what it meant and

meant what it said.’” United States v. Browne, 505 F.3d 1229, 1250 (11th Cir. 2007) (quoting

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc)).

55

contain language such as “in exchange for an official act” or “in return for an

official act.” In short, nothing in the plain language of § 666(a)(1)(B) nor

§ 666(a)(2) requires that a specific payment be solicited, received, or given in

exchange for a specific official act. To accept the defendants’ argument would

permit a person to pay a significant sum to a County employee intending the

payment to produce a future, as yet unidentified favor without violating § 666.

The requirement of a “corrupt” intent in § 666 does narrow the conduct that

violates § 666 but does not impose a specific quid pro quo requirement. In all the

trials consolidated in this appeal, the district court’s jury charge, with slight

variations, defined “corruptly” as follows: “An act is done ‘corruptly’ if it is

performed voluntarily, deliberately and dishonestly for the purpose of either

accomplishing an unlawful end or result or of accomplishing some otherwise

lawful end or lawful result by an[y] unlawful method or means.” It is acting

“corruptly” — dishonestly seeking an illegal goal or a legal goal illegally — that

separates permissible from criminal. The addition of a corrupt mens rea avoids

prosecution for acceptable business practices.41

41

We do not read the definitional language of “corrupt” to impose a quid pro quo

requirement. In any event, the district court charged that definition. It also has been suggested

that § 666’s language — a thing of value given with corrupt intent to influence — effectively

constitutes a quid pro quo in that the payment is made for influence. This at best would be

“quid pro quo light.” Even if one views § 666 this way, the district court charged the language

of the § 666 statute.

56

For all of these reasons, we now expressly hold there is no requirement in

§ 666(a)(1)(B) or (a)(2) that the government allege or prove an intent that a

specific payment was solicited, received, or given in exchange for a specific

official act, termed a quid pro quo.

As to the defendant County employees, the government must show only

what § 666(a)(1)(B) says: that a County employee “corruptly” accepted “anything

of value” with the intent “to be influenced or rewarded in connection with any

business, transaction, or series of transactions” of the County. And as to the

contractor-defendants, the government must show only what § 666(a)(2) says: that

the defendant “corruptly” gave “anything of value” to a County employee with the

intent “to influence or reward” that person “in connection with any business,

transaction, or series of transactions” of the County.

To be sure, many § 666 bribery cases will involve an identifiable and

particularized official act, but that is not required to convict. Simply put, the

government is not required to tie or directly link a benefit or payment to a specific

official act by that County employee. The intent that must be proven is an intent to

corruptly influence or to be influenced “in connection with any business” or

“transaction,” not an intent to engage in any specific quid pro quo.42

42

The defendant-appellants rely on United States v. Siegelman, 561 F.3d 1215 (11th Cir.

2009), petition for cert. filed, 78 U.S.L.W. 3083 (U.S. Aug. 10, 2009) (No. 09-167), 78

57

C. Other Circuits

In concluding § 666 does not require a specific quid pro quo, we align

ourselves with the Sixth and Seventh Circuits. See United States v. Abbey, 560

F.3d 513, 520 (6th Cir.), cert. denied, 130 S. Ct. 739 (2009) (stating “the text says

nothing of a quid pro quo requirement to sustain a conviction” and “while a quid

pro quo of money for a specific legislative act is sufficient to violate

[§ 666(a)(1)(B) or (a)(2)], it is not necessary”) (quotation marks omitted); United

States v. Gee, 432 F.3d 713, 714-15 (7th Cir. 2005) (holding that “[a] quid pro quo

of money for a specific legislative act” is not necessary under § 666(a)(1)(B) and

that an exchange of money for the official’s “influence” was enough); United

States v. Agostino, 132 F.3d 1183, 1190 (7th Cir. 1997) (“We decline to import an

U.S.L.W. 3090 (U.S. Aug. 10, 2009) (No. 09-182), and United States v. Massey, 89 F.3d 1433

(11th Cir. 1996), but neither case answers the question here. In Siegelman, the district court

gave a quid pro quo instruction in response to the defendant’s request. The district court

instructed the jury that they could not convict unless “the defendant and official agree that the

official will take specific action in exchange for the thing of value.” Siegelman, 56 F.3d at 1225.

This Court stated “[s]o, whether or not a quid pro quo instruction was legally required, such an

instruction was given,” and “[t]herefore assuming a quid pro quo instruction was required in this

case, we find no reversible error.” Id. at 1225, 1227.

In Massey, “[t]he jury convicted [attorney] Massey of one count of bribery in violation of

18 U.S.C. § 666(a)(2) finding that Massey purchased [Judge] Sepe’s lunches at Buccione in

exchange for court appointments.” Massey, 89 F.3d at 1439. This Court rejected Massey’s

claim that the government was required to produce direct evidence of a verbal or written

agreement to this effect and stated “inferences drawn from relevant and competent

circumstantial evidence” were sufficient. Id. (quotation marks omitted). The quid pro quo issue

here was not raised or discussed in Massey. The fact that the evidence of a specific exchange

was sufficient to sustain the § 666(a)(2) bribery conviction in Massey does not mean one is

required to obtain a § 666(a)(2) conviction here.

58

additional, specific quid pro quo requirement into the elements of § 666(a)(2).”);

but see United States v. Jennings, 160 F.3d 1006, 1014 (4th Cir. 1998) (concluding

the “corrupt intent” element in § 666 requires the government to prove a quid pro

quo, but stating the “quid pro quo requirement is satisfied so long as the evidence

shows a ‘course of conduct of favors and gifts flowing to a public official in

exchange for a pattern of official actions favorable to the donor’” and “the intended

exchange in bribery can be ‘this for these’ or ‘these for these,’ not just ‘this for

that’” (citations omitted)).

The Second Circuit’s decision in United States v. Ganim, 510 F.3d 134 (2d

Cir. 2007), also supports our analysis to some extent.43 The defendant “Ganim’s

challenges to the jury charge primarily relate[d] to a single issue: namely, whether

proof of a government official’s promise to perform a future, but unspecified,

official act is sufficient to demonstrate the requisite quid pro quo for a conviction”

under § 666(a)(1)(B). Id. at 141-42. Although accepting a quid pro quo

requirement for a bribery conviction, the Second Circuit rejected Ganim’s claim

43

The defendant in Ganim was convicted of these “bribery-related crimes”: “(1) extortion

in violation of the Hobbs Act, 18 U.S.C. § 1951; (2) ‘honest services mail fraud’ in violation of

18 U.S.C. §§ 1341 & 1346; (3) federal programs bribery in violation of 18 U.S.C. § 666(a)(1)(b)

[sic]; and (4) bribe receiving in violation of Connecticut General Statutes section 53a-148

(collectively, the ‘bribery-related crimes’).” Ganim, 510 F.3d at 141. The Ganim opinion first

analyzed the quid pro quo issue collectively as to the bribery-related crimes. Id. at 141-42. It

later discussed the jury charges under an “Extortion” subheading, but much of that discussion

related to all bribery-related crimes in the case. Id. at 142-47. Because Ganim discussed the

bribery-related crimes collectively, it did not focus on the language of § 666(a)(1)(B).

59

that “a direct link must exist between a benefit received and a specifically

identified official act.” Id. at 142. The Second Circuit held “that the requisite quid

pro quo for the crimes at issue [which included § 666(a)(1)(B)] may be satisfied

upon a showing that a government official received a benefit in exchange for his

promise to perform official acts or to perform such acts as the opportunities arise.”

Id. (emphasis added). The Second Circuit added that “so long as the jury finds that

an official accepted gifts in exchange for a promise to perform 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.”

Id. at 147.

The Second Circuit also explained that “requiring a jury to find a quid pro

quo . . . ensures that a particular payment is made in exchange for a commitment to

perform official acts to benefit the payor in the future,” and “[o]nce the quid pro

quo has been established, however, the specific transactions comprising the illegal

scheme need not match up this for that.” Id. at 147. The Second Circuit’s analysis

lies somewhere beyond a no-quid pro quo requirement, as adopted by the Sixth,

Seventh, and now the Eleventh Circuits, and the Fourth Circuit’s requirement.

While the Second Circuit requires a quid pro quo, that requirement is satisfied by a

quid (thing of value) in exchange for a promise to perform an unidentified, official

60

act at some point in the future. Id. at 142-47. In other words, in the Second Circuit

the quo need not be specific or even identifiable at the time of the quid, and to that

extent the Second Circuit arguably supports our conclusion. And to some extent,

confusion reigns in this area because courts often use the term quid pro quo to

describe an exchange other than a particular item of value for a particular action.

D. Sun-Diamond and § 201

Because there is no support for the defendant-appellants’ quid pro quo

argument in the text of § 666, they rely on how the Supreme Court interpreted a

different criminal statute, 18 U.S.C. § 201, in United States v. Sun-Diamond

Growers of California, 526 U.S. 398, 119 S. Ct. 1402 (1999). However, Sun-

Diamond does not address § 666, and there are significant differences in the text of

the two statutes (§§ 201 and 666).

The defendant Sun-Diamond was a trade association convicted of providing

“illegal gratuities” under 18 U.S.C. § 201(c)(1)(A) for having given tickets, meals,

and other items to the federal Secretary of Agriculture. Id. at 401, 119 S. Ct. at

1404-05. Section 201(c)’s illegal gratuity provision prohibited Sun-Diamond

from: “giv[ing] . . . anything of value to any public official . . . for or because of

any official act performed or to be performed by such public official . . . .” 18

61

U.S.C. § 201(c)(1)(A) (emphasis added).44 In Sun-Diamond, the district court

charged the jury it could convict if it found “Sun-Diamond provided [the

Secretary] with unauthorized compensation simply because he held public office,”

and that “[t]he government need not prove that the alleged gratuity was linked to a

specific or identifiable act or any act at all.” Id. at 403, 119 S. Ct. at 1405

(emphasis added). The “point in controversy” was that the jury instructions

suggested that an illegal gratuity “did not require any connection between

[defendant’s] intent and a specific official act.” Id. at 405, 119 S. Ct. at 1406.

The Supreme Court in Sun-Diamond concluded that § 201(c) did require a

link between the gratuity and a specific “official act” because the statutory text

prohibited gratuities given or received “for or because of any official act performed

or to be performed” and then defined “official act” as “any decision or action on

any question, matter, cause, suit, proceeding or controversy . . . .” Id. at 406, 119

S. Ct. at 1407 (quoting §§ 201(c)(1)(A) and § 201(a)(3)). And it was specifically

this text of the illegal gratuity statute — “for or because of any official act” — that

the Supreme Court in Sun-Diamond found to be “pregnant with the requirement

that some particular official act be identified and proved.” Id. at 406, 119 S. Ct. at

1407 (emphasis added). In stark contrast, none of these phrases are used in

44

There is no threshold monetary requirement in §§ 201(b) or 201(c)(1)(A).

62

§§ 666(a)(1)(B) or 666(a)(2).

We recognize that the Supreme Court in Sun-Diamond also distinguished

between a § 201(b) bribery crime and a § 201(c) illegal gratuity crime. Id. at 404-

05, 119 S. Ct. at 1406. The Supreme Court pointed out that bribery in § 201(b)

“requires a showing that something of value was corruptly given, offered, or

promised to a public official (as to the giver) or corruptly demanded, sought,

received, accepted, or agreed to be received or accepted by a public official (as to

the recipient) with intent, inter alia, ‘to influence any official act’ (giver) or in

return for ‘being influenced in the performance of any official act’ (recipient).” Id.

at 404, 119 S. Ct. at 1406 (quoting 18 U.S.C. § 201(b)). The Supreme Court

explained that “[t]he distinguishing feature of each crime is its intent element.” Id.

at 404, 119 S. Ct. at 1406. The Supreme Court explained further that in § 201:

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.

Id. at 404-05, 119 S. Ct. at 1406 (emphasis added).45 The Supreme Court also

45

A bribe under § 201(b) is punishable by up to 15 years’ imprisonment, while the lesser

crime of illegal gratuity under § 201(c) is punishable by up to 2 years’ imprisonment. 18 U.S.C.

§ 201(b), (c).

63

stated: “The District Court’s instructions in this case, in differentiating between a

bribe and an illegal gratuity, correctly noted that only a bribe requires proof of a

quid pro quo.” Id. at 405, 119 S. Ct. at 1406.

Although § 201(b) requires that a bribe be given or received to influence an

“official act” or “in return for” an “official act,” § 666 sweeps more broadly than

either §§ 201(b) or (c). Section 666 requires only that money be given with intent

to influence or reward a government agent “in connection with any business,

transaction, or series of transactions.” 18 U.S.C. § 666(a)(1)(B) & (a)(2). Section

666 does not say “official act” but says “any business, transaction, or series of

transactions.” Id. Section 666 does not say “in return for” or “because of” but says

“in connection with.” Id.

More importantly, the Supreme Court in Sun-Diamond was concerned with

accidentally criminalizing legal gratuities under § 201(c), such as giving a ball cap,

a sports jersey, or token gift to the Secretary of Agriculture “based on his official

position and not linked to an identifiable act.” Id. at 406-07, 119 S. Ct. at 1407;

see Ganim, 510 F.3d at 146 (“Undergirding the [Supreme] Court’s decision in Sun-

Diamond was a need to distinguish legal gratuities (given to curry favor of an

official’s position) from illegal gratuities (given because of a specific act).”). That

concern is diminished here because § 666 contains a corrupt intent requirement. In

64

any event, as reasoned by the Second Circuit, “there is good reason to limit

Sun-Diamond’s holding to the statute at issue in that case, as it was the very text of

the illegal gratuity statute — ‘for or because of any official act’ — that led the

Court to its conclusion that a direct nexus was required to sustain a conviction

under § 201(c)(1)(A).” Ganim, 510 F.3d at 146. “Nor is there any principled

reason to extend Sun-Diamond’s holding beyond the illegal gratuity context.” Id.

E. Rule of Lenity

We also reject defendant-appellants’ argument that the rule of lenity requires

us to read a specific quid pro quo requirement into § 666. The rule of lenity may

apply in a number of different circumstances. For example, “[t]he rule of lenity is

applied when a broad construction of a criminal statute would ‘criminalize a broad

range of apparently innocent conduct.’” United States v. Svete, 556 F.3d 1157,

1169 (11th Cir. 2009) (en banc) (quoting Liparota v. United States, 471 U.S. 419,

426, 105 S. Ct. 2084, 2088 (1985)), cert. denied, __ S. Ct. __, 78 U.S.L.W. 3546

(U.S. Mar. 22, 2010) (No. 09-7576). However, “[t]he simple existence of some

statutory ambiguity . . . is not sufficient to warrant application of that rule, for most

statutes are ambiguous to some degree.” United States v. Muscarello, 524 U.S.

125, 138, 118 S. Ct. 1911, 1919 (1998). The mere possibility of a narrower

statutory construction by itself does not make the rule of lenity applicable. Svete,

65

556 F.3d at 1169. Application of the rule requires a “grievous ambiguity.”

Muscarello, 524 U.S. at 138-39, 118 S. Ct. at 1919 (“The rule of lenity applies only

if, ‘after seizing everything from which aid can be derived,’ . . . we can make ‘no

more than a guess as to what Congress intended.’”) (citation omitted).

The rule of lenity does not apply here because defendant-appellants fail to

identify a “grievous ambiguity” in § 666(a)(1)(B) or (a)(2), or to show that the

statutory language criminalizes innocent behavior. Section 666(a)(1)(B) and (a)(2)

criminalize only those acts done “corruptly,” and, indeed, § 666 provides a defense

for “bona fide salary, wages, fees, or other compensation paid, or expenses paid or

reimbursed, in the usual course of business.” 18 U.S.C. § 666(c).

F. Defendants’ Proposed Jury Charges

In the McNair, Swann, Barber, and Wilson trials, all defendant-appellants

requested jury charges that included a quid pro quo requirement.46

46

For example, in the McNair trial, PUGH requested this instruction:

In order for you to find defendant [PUGH] guilty, you must find beyond a reasonable

doubt that [PUGH] gave something of value to Defendant McNair with the specific

intent of obtaining a quid pro quo, that is, that [PUGH] gave the item of value with

the specific intent to improperly cause Defendant McNair to commit a specific act

in favor of [PUGH], or with the specific intent of illegally rewarding Defendant

McNair for having previously committed such an act. In other words, the United

States must show that [PUGH] provided the item of value either (1) with the

expectation that Defendant McNair would improperly provide something specific in

return or (2) for the purpose of rewarding McNair for something improper that

Defendant McNair had previously done.

In the Swann trial, Bobby Rast, for example, requested this instruction:

[Y]ou must find beyond a reasonable doubt that Bobby Rast gave something of value

to Defendant Swann with the specific corrupt intent of obtaining a quid pro quo, that

66

In the McNair trial, the district court rejected the proposed quid pro quo

instructions, gave the Eleventh Circuit’s pattern jury instructions for § 666 as to

corruptly giving bribes, telling the jury:

As I’ve said, the defendants, other than Jewell C. “Chris” McNair, are

charged in various counts of violating a portion of Title 18, Section 666,

which makes it a federal crime or offense for anyone to corruptly give,

offer or agree to give anything of value to anyone who is an agent of a

local government receiving significant benefits under a federal assistance

program intending to reward or influence that agent in connection with

any business, transaction, or series of transactions of such local

government involving anything of value of $5,000 or more.

....

Fifth: And this is another thing that the government would have to prove

beyond a reasonable doubt.

That each such gift, offer or agreement to give, that by each of those

gifts, offer or agreement to give, the Defendant [] corruptly intended to

reward or influence Jewell C. “Chris” McNair in connection with a

transaction, or series of transactions, with Jefferson County, Alabama,

which transaction or series of transactions involved something of value

of $5,000 or more.

Sixth: That in doing so, the Defendant [] acted corruptly.

An act is done “corruptly” if it is performed voluntarily, deliberately, and

dishonestly, for the purpose of either accomplishing an unlawful end or

result or of accomplishing some otherwise lawful end or lawful result by

is, that Bobby Rast gave the item of value with the specific corrupt intent to

improperly influence Defendant Swann to commit a specific official act in favor of

Bobby Rast, or with the specific corrupt intent of illegally rewarding Defendant

Swann for having previously committed such an act. In other words, the United

States must show that Bobby Rast corruptly provided the item of value either (1)

with the expectation that Defendant Swann would improperly provide some official

specific act or acts in return or (2) for the purpose of rewarding Jack W. Swann for

some specific improper official act or acts that Defendant Swann had previously

done.

67

an unlawful method or means.47

The district court also gave the pattern § 666 jury charge, with slight variations, as

to corruptly receiving bribes. The judges in the subsequent trials (Swann,48

Barber,49 and Wilson50 ) agreed with the district

47

See Eleventh Circuit Pattern Jury Instructions (Criminal Cases) at 180-81 (Offense

Instruction 24) (2003). The district court instructed the jury the government must prove all

elements of a § 666 crime, such as that McNair had to be an agent and the County had to receive

over $10,000 in federal funds. We quote in the text only the part of the pattern charge about the

corrupt intent element.

48

In the Swann trial, the district court instructed the jury as to corruptly accepting bribes:

As to [the § 666 substantive bribery] counts the defendant Jack W. Swann can be

found guilty of [§ 666 bribery] only if all the following facts are proved beyond a

reasonable doubt.

....

The fifth element which is common to all of those counts as the first four were, that

. . . by such acceptance or agreements, the defendant Jack W. Swann intended as to

the count under consideration to be influenced or rewarded in connection with a

transaction or series of transactions of Jefferson County, Alabama which transactions

or series of transactions involve something of value of $5,000 or more.

And six, that in so doing the defendant Jack W. Swann acted corruptly.

An act is done corruptly if it is performed voluntarily and deliberately and

dishonestly for the purpose of either accomplishing an unlawful end or result or of

accomplishing some otherwise lawful end or lawful result by any unlawful method

or means.

The court gave a similar pattern § 666 jury charge as to corruptly giving bribes.

49

In the Barber trial, the district court instructed the jury as to only PUGH’s corruptly

giving bribes because Barber, the acceptor, pled guilty:

The defendant Roland Pugh Construction, Inc., can be found guilty of the offense

charging a violation of [§ 666(a)(2)] only if all the following facts are proved beyond

a reasonable doubt:

....

Fifth, that by giving, offering, or agreeing to give things of value to Clarence R.

Barber, defendant Roland Pugh Construction, Inc., intended to influence or reward

Clarence R. Barber in connection with any business transaction or series of

transactions which involve something of $5,000 or more.

And, sixth, that in doing so, the defendant Roland Pugh Construction, Inc., acted

corruptly.

68

court’s ruling in the McNair trial and gave jury instructions that did not include

defendant-appellants’ requested quid pro quo instructions.51

Given our conclusion that § 666(a)(1)(B) and (2) do not require proof of a

specific quid pro quo, defendant-appellants’ proposed jury instructions containing

that requirement were incorrect statements of law. Thus, the district courts did not

....

An act is done corruptly if it is performed voluntarily, deliberately, and

dishonestly for the purpose of either accomplishing an unlawful end or result, or

of accomplishing some otherwise lawful end or result by any unlawful method or

means.

50

Because in the Wilson case only PUGH appeals, we quote the “corruptly giving” part of

the court’s jury charge:

The purpose of the plan alleged by the government in the indictment was also for the

defendant, Pugh Incorporated, through Grady R. Pugh, Jr., to corruptly give, offer,

and agree to give things of value to defendant Ronald K. Wilson with the intent of

influencing and rewarding him for supporting their interests in connection with the

J.C.E.S.D. sewer rehabilitation construction program in violation of [18 U.S.C.

§ 666(a)(2)].

....

Title 18 of the United States Code section 666(a)(2) makes it a federal crime or

offense for any person to corruptly give, offer, or agree to give anything of value to

any person with the intent to influence or reward an agent of a local government or

local governmental agency receiving significant benefits under a federal assistance

program, in connection with any business, transaction or series of transactions of

such local government or government agency involving anything of value of $5,000

or more.

....

An act is done corruptly if it is performed voluntarily, deliberately, and

dishonestly for the purpose of either accomplishing an unlawful end or result or

of accomplishing some otherwise lawful result by any unlawful method or means.

51

“In considering the failure of a district court to give a requested instruction, the

omission is error only if the requested instruction is correct, not adequately covered by the

charge given, and involves a point so important that failure to give the instruction seriously

impaired the party’s ability to present an effective case.” Svete, 556 F.3d at 1161 (quotation

marks omitted). The district court’s refusal to give a requested instruction is reviewed for abuse

of discretion. Id.

69

abuse their discretion in refusing them. See US Infrastructure, 576 F.3d at 1213

(determining omission of a specific quid pro quo requirement in § 666 jury

instruction was not plain error); Paradies, 98 F.3d at 1289 (same).

In the McNair trial, all defendant-appellants also requested that the jury be

instructed that if a thing of value was given out of friendship or merely to foster

goodwill and not to corruptly influence or reward, then a not-guilty verdict is

required. After that request, the district court in the McNair trial supplemented the

pattern instructions with this:

Section 666 . . . does not prohibit all gifts by or to a public official, does

not prohibit all receipts -- does not prohibit receipt of all gifts by or to a

public official, but only gifts received with the corrupt intent to be

influenced or rewarded by that governmental official in connection with

a business or transaction or series of transactions of that governmental

entity involving $5,000 or more.[52]

After the defendant-appellants insisted the district court specifically identify

friendship and goodwill gifts as legal gratuities, the court responded “if it’s corrupt

and dishonest, it’s not for good will, is it?” The district court explained that giving

defendant-appellants’ instruction would “carr[y] with it some sort of suggestion

52

In the Swann, Barber, and Wilson trials, PUGH also requested the same jury charge.

The Rast and Pugh defendants either requested this jury instruction or adopted PUGH’s request,

in the Swann trial. And in the Swann, Barber, and Wilson trials, the district court gave similar

supplemental jury charges expressly advising the jury that § 666 does not prohibit all gifts to a

public official, but only those gifts with the corrupt intent to influence or reward specified

government officials in connection with the business or transaction or series of transactions of

that governmental entity.

70

that I’m adopting that idea that that’s what these payments were.” This exchange

then took place:

THE COURT: What if it’s good will and corrupt?

[ROLAND PUGH’S COUNSEL]: It can’t be.

THE COURT: Okay. That’s your answer.

A finding that a gift was made or accepted with corrupt intent necessarily excludes

friendship and good will gifts. There is no reversible error in the court’s charge in

this regard.53

VII. SUFFICIENCY OF THE EVIDENCE

A. Conspiracy and Corrupt Intent

All defendant-appellants challenge the sufficiency of the evidence to support

their convictions on various counts.54 Defendants’ primary arguments are the

government failed to prove a conspiracy among the defendants (as to Counts 1, 51,

53

We also find no merit to defendant-appellants’ claims on appeal as to any other

proposed jury instructions because they were either incorrect, too argumentative or flawed in

some way, not necessary, or already adequately covered by the court’s charge as a whole. In

particular, we conclude the court’s charge adequately covered defendants’ theory of defense that

the payments were gifts made out of friendship or to foster good will and adequately charged the

jury on the honest services mail fraud counts (90-100) as discussed later.

54

“This Circuit reviews the sufficiency of the evidence de novo, examining the evidence

in the light most favorable to the government and resolving all reasonable inferences and

credibility issues in favor of the guilty verdicts.” US Infrastructure, 576 F.3d at 1203. We “will

not overturn a conviction on the grounds of insufficient evidence unless no rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” United States

v. Wright, 392 F.3d 1269, 1273 (11th Cir. 2004) (quotation marks omitted).

71

75, and 78) or any corrupt intent as to all the bribery counts.55

To sustain the conspiracy convictions, the government must prove (1) “the

existence of an agreement to achieve an unlawful objective, here, giving things of

value” to County employees with the corrupt intent to influence or reward them;

(2) “the defendant[s’] knowing and voluntary participation in the conspiracy;” and

(3) “an overt act in furtherance of the conspiracy.” US Infrastructure, 576 F.3d at

1203; see also United States v. Jennings, 599 F.3d 1241, 1250-51 (11th Cir. 2010).

Defendants argue the government failed to present any evidence of an agreement

among them.

The problem for defendants is direct evidence of an agreement is

unnecessary; the existence of the agreement and a defendant’s participation in the

conspiracy may be proven entirely from circumstantial evidence. Id.; United

States v. Massey, 89 F.3d 1433, 1439 (11th Cir. 1996). “A defendant may be

found guilty of conspiracy if the evidence demonstrates he knew the ‘essential

objective’ of the conspiracy, even if he did not know all its details or played only a

55

Defendants PUGH, Roland Pugh, Yessick, RAST, Bobby Rast, Danny Rast, FWDE,

and Dougherty were convicted on Count 1 for participating in a conspiracy to bribe defendant

McNair. Defendants PUGH, Yessick, RAST, Bobby Rast, FWDE, and Dougherty were

convicted on Count 51 of participating in a conspiracy to bribe defendant Swann. Defendants

PUGH and Wilson were convicted on Count 75 of participating in a conspiracy (between PUGH,

Grady Pugh, and Wilson) to bribe Wilson. Defendant PUGH was convicted on Count 78 of

participating in a conspiracy (between PUGH, Roland Pugh, Barber and Yessick) to bribe

Barber.

72

minor role in the overall scheme.” United States v. Guerra, 293 F.3d 1279, 1285

(11th Cir. 2002). The government need not show “each defendant had direct

contact with each of the other alleged co-conspirators.” Id. “It is not necessary for

the government to prove that a defendant knew every detail or that he participated

in every stage of the conspiracy.” United States v. Jones, 913 F.2d 1552, 1557

(11th Cir. 1990). “For a wheel conspiracy to exist those people who form the

wheel’s spokes must have been aware of each other and must do something in

furtherance of some single, illegal enterprise.” United States v. Fernandez, 892

F.2d 976, 986 (11th Cir. 1989) (quotation marks omitted). “[A] common purpose

or plan may be inferred from a development and collocation of circumstances.”

US Infrastructure, 576 F.3d at 1205 (quotation marks omitted).

Extensive witness and documentary evidence firmly established that the

things of value described in the conviction counts were given by the contractor-

defendants and accepted by McNair, Swann, Barber, Wilson, and other County

employees. The defendants in the McNair and Swann trials mainly dispute

whether the government proved they acted (1) with corrupt intent (versus for

friendship), and (2) in agreement (versus independently). The government

presented more than sufficient evidence of both corrupt intent and a conspiracy

agreement.

73

First, ample evidence showed that the contractor-defendants worked together

on McNair’s studio and Swann’s home and that they did so with a common

purpose of providing sizable benefits to influence McNair and Swann in the billion

dollar sewer rehabilitation program. There was no evidence of gifts to these

“friends” before the sewer projects began. Instead, the gifts to McNair and Swann

and other County employees were made during the same time period of the sewer

projects. The large sums — both in bribes and sewer payments — indicate a

common scheme of all defendant-appellants to receive County sewer money

through illegal means. The jury was free to disbelieve the defendants’ claims of

gifts for friendship and to find corrupt intent to influence McNair and Swann in

connection with the County’s massive sewer payments to the contractor-

defendants. The juries could readily believe the gifts worth hundreds of thousands

of dollars to McNair and Swann after the sewer work began were actually bribes

intended to make sure the contractors profited excessively from the work. In fact,

the evidence recounted above showed pervasive and entrenched corruption.

Second, the evidence of how the contractor-defendants divided up and

coordinated their work on the same personal projects for McNair (his studio) and

Swann (his home) during the same time frame is strong evidence of a conspiracy.

For example, FWDE’s Bailey supervised the construction of McNair’s studio

74

while PUGH and RAST provided labor and materials. RAST furnished the labor

to build the deck and PUGH furnished the materials. RAST excavated for the

footings, and PUGH ordered the concrete and poured concrete walls. FWDE paid

Mosley Construction for the wood framing initially, and then RAST began paying

Mosley. FWDE ordered the aluminum handrails, PUGH paid for them, and RAST

installed them. The same pattern of dividing up the work was followed for the

Swann home. For example, an FWDE employee supervised the work at Swann’s

home. PUGH’s Yessick hired a company to install a koi pond for Swann, and

PUGH listed Danny Rast as a point of contact.56

Third, the extent to which the parties went to conceal their bribes is powerful

evidence of their corrupt intent. For example, evidence in the McNair trial showed

FWDE employed Bailey as a full-time construction superintendent for the McNair

studio renovation and reported Bailey’s time as purportedly performed on a JCESD

sewer project. FWDE concealed a $50,000 payment Dougherty made to

subcontractor George Word Construction for building McNair’s Arkansas

retirement home.57 FWDE has no record of the transaction at all. The only

56

In addition, after McNair’s retirement, PUGH, FWDE, and Bobby Rast each gave

McNair a check for the same amount — $5,000 — all within a two-day period.

57

Earlier, PUGH had paid Word $44,192.75 in the first half of October 2001, and, per

Yessick’s instruction, internally charged the expense to miscellaneous jobs/construction

materials. McNair told George Word that FWDE would make the next payment.

75

existing record of this transaction was made by a bookkeeper, who copied the

invoice and check and kept them at home because of his suspicions. FWDE also

supplied a construction superintendent, Hendon, for Swann’s home remodel. For

nearly two years, Hendon was on FWDE’s payroll but actually spent half of every

workday at Swann’s home. FWDE’s Stanger replaced Hendon for an additional

nine months. Dougherty was aware of this work at Swann’s home. FWDE paid a

subcontractor over $28,000 — with checks signed by Dougherty — to frame the

addition to Swann’s home.

Likewise, RAST paid nearly $77,000 for materials and subcontractors for

McNair’s studio. RAST also supplied significant amounts of labor for McNair’s

studio, including excavating for the footings and constructing its deck and metal

steps. RAST hid these expenses by coding them to JCESD projects.

After a newspaper article revealed RAST’s work on Swann’s home, Bobby

Rast told his bookkeeper that they “didn’t need any document invoices in the files

with Jack Swann’s or Chris McNair’s shipping address on them,” causing her to

discard these invoices. Before the article, RAST had treated its payments to

McNair and Swann as business expenses, deducting them on its tax returns. After

the article, RAST amended several years’ returns to eliminate more than $140,000

76

of those deductions.58

Similarly, RAST crews performed demolition work and poured concrete for

the basement, walls, stairs, and elevator pit at Swann’s home. RAST also spent

more than $28,000 purchasing concrete and bricks and paying subcontractors to

repair the plumbing, paint Swann’s home, and install hardwood floors and stairs.

As with McNair, RAST concealed its work for Swann, in particular avoiding the

use of Swann’s name on invoices, delivery tickets, and accounting reports, and

coding the work and expenses either to miscellaneous or JCESD projects.

PUGH also concealed its work on McNair’s studio. For example, when

Besco delivered steel to McNair’s studio, Besco’s delivery tickets identified PUGH

and Yessick as its customer and indicated that some of the steel was for the Valley

Creek Treatment Plant, a JCESD sewer job on which PUGH was the contractor

and FWDE the consulting engineer.

Defendants claim they could not have intended to corruptly influence

McNair because his authority was purely “ministerial,” since he only ratified what

JCESD officials below him (such as Swann) had already approved. Given

58

Sufficient evidence also supports the Rast defendants’ convictions for bribing Chandler

and Ellis. First, Chandler asked Bobby Rast for money to attend technical conferences that Ellis

was also planning to attend. Instead of giving Chandler a check for $250-$500 as Chandler

expected, Bobby Rast gave Chandler an envelope containing $5,000 cash and told Chandler to

split it with Ellis.

77

McNair’s ultimate authority and responsibility, a jury could infer McNair became a

“rubber-stamp” for the defendants’ pay requests, field directives, and contract

modifications that crossed his desk because of the large sums in goods and services

he received from the contractor-defendants. And because he was responsible for

placing sewer items on the County Commission’s weekly agenda, McNair

controlled every sewer matter requiring Commission approval.59

B. PUGH’s Challenges to Counts 75 and 78

PUGH challenges the sufficiency of the evidence as to its bribery conspiracy

convictions on Count 75 (the Wilson scholarship) and Count 78 (land and

vacations for Barber). However, ample evidence supports both convictions.

The evidence established that when Grady Pugh gave Wilson’s son the

scholarship, he expected Wilson to return the favor. Grady Pugh testified that

when he provided the Wilson scholarship, he “felt like if [Wilson] got a chance to

59

Defendants also contend the government failed to prove any specific payment (or work

on McNair’s studio or Swann’s home) was given or done in exchange for a specific official act

by McNair or Swann. Because a specific quid pro quo is not an element of a § 666(a)(1)(B) or

(a)(2) crime, there was necessarily no failure of proof as to that element.

Alternatively, even assuming these § 666 crimes require, as the Second Circuit concluded

in Ganim, that the government prove payments or such work were given or done in return for a

promise of as yet unidentified future conduct favorable to the contractor-defendants in their

County sewer projects, the evidence overwhelmingly established such facts and thus any error in

the jury charge was harmless. And even under the Fourth Circuit’s approach in Jennings, which

requires a “course of conduct of favors and gifts flowing to a public official in exchange for a

pattern of official actions favorable to the donor,” the evidence here was sufficient, and thus any

jury charge error was harmless. Jennings, 160 F.3d at 1014.

78

help us and return the favor, he would.” Only three days after Wilson faxed Grady

Pugh information as to where PUGH should send the scholarship check — and the

day before Grady Pugh sent it — Wilson approved PUGH’s request for a time

extension that had been sitting on Wilson’s desk for four weeks. When PUGH

submitted its extension request, PUGH was already exposed to liability of $76,000

in liquidated damages. The amount of exposure exceeded $100,000 by the time

Wilson actually granted PUGH’s request.

The evidence also supports the verdict that PUGH and Yessick conspired to

bribe Barber. Barber oversaw all of the JCESD inspectors and awarded the no-bid

emergency work contracts. In 1997, 1998, 1999, and 2001, PUGH paid for

Barber’s vacations, but hid the payments in the company’s books. PUGH readily

agreed to Barber’s June 2000 request to buy him a lot for a retirement home.

PUGH’s Yessick contracted for the lot in Roland Pugh’s name but charged

$45,000 to the Paradise Lake project to pay for it. Then, just before the closing,

PUGH instead gave Barber a cashier’s check to buy the lot in his own name. The

remitter’s name was left blank on that check. Yessick was told to retrieve all

evidence that PUGH was ever involved. This required the realtor to fabricate a

fictitious house sale to refund the original $1,000 deposit.

Moreover, just months before Barber solicited PUGH for the purchase of the

79

lot, Barber designated the Paradise Lake project as an emergency. Because the

cost of the project — $827,417.75 — greatly exceeded Barber’s $50,000

emergency work approval limit, and because there was no Paradise Lake contract

on which to grant a field directive, the work was performed as a field directive on

the unrelated multimillion dollar Cahaba River project. PUGH netted a profit of

more than $400,000.

PUGH argues the Wilson scholarship and Barber land transaction are not

bribery conspiracies, but merely “buyer-seller” transactions. PUGH relies

primarily on two drug cases, United States v. Mercer, 165 F.3d 1331, 1335 (11th

Cir. 1999) (cash for drugs), and United States v. Dekle, 165 F.3d 826, 830-31 (11th

Cir. 1999) (sex for drugs), for the proposition that there is no conspiracy where

there is merely a “buy-sell transaction” without an “agreement to join together to

accomplish a criminal objective beyond that already being accomplished by the

transaction.” Mercer, 165 F.3d at 1335 (quotation marks omitted). PUGH argues

that there was nothing agreed upon with Wilson or Barber outside of the one gift or

one buy-sell transaction. The drug cases of Mercer and Dekle are materially

different from § 666 bribery conspiracy cases. In a drug deal, once the sale is

complete, there is no further criminal objective. In § 666 cases, once the gift is

made, the defendant typically intends to corruptly influence the County employee’s

80

future actions. See United States v. Tilton, 610 F.2d 302, 307 (5th Cir. 1980)60

(bribee conspired with briber in part because of common goal of increasing their

personal wealth). In § 666 cases, the defendants share both an anticipation of

future action and a common goal of increasing their wealth illegally.61

C. Swann and PUGH’s Challenges to Counts 90-100

In the Swann trial, Swann, PUGH, and Yessick were convicted of eleven

counts (90-100) of honest services mail fraud under §§ 1341 and 1346. The

convictions involve Swann’s receiving landscaping services worth $140,000 from

PUGH and Yessick. On appeal, Swann and PUGH claim the evidence was

insufficient to support their convictions.62

To establish a violation of § 1341, the government must show the defendant

“(1) intentionally participates in a scheme or artifice to defraud another of money

or property, and (2) uses or ‘causes’ the use of the mails . . . for the purpose of

executing the scheme or artifice.” United States v. Ward, 486 F.3d 1212, 1222

60

This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,

1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).

61

To the extent defendant-appellants make sufficiency of the evidence arguments as to

any other § 666 conviction counts, we reject them as without merit.

62

Yessick does not appeal. On appeal, Swann and PUGH do not challenge the

constitutionality of the honest services statute. Instead, Swann raises two claims: (1)

insufficient evidence to sustain his §§ 1341, 1346 convictions, and (2) the district court erred by

refusing to give a “good faith” instruction to the jury. PUGH adopted Swann’s claim of

insufficient evidence.

81

(11th Cir. 2007).63

Section 1346 adds “honest services” language to the § 1341 offense,

providing that “the term ‘scheme or artifice to defraud’ includes a scheme or

artifice to deprive another of the intangible right of honest services.” 18 U.S.C.

§ 1346. “To prove ‘honest services’ mail fraud, the Government must show that

the accused intentionally participated in a scheme or artifice to deprive the persons

or entity to which the defendant owed a fiduciary duty of the intangible right of

honest services, and used the United States mails to carry out that scheme or

artifice.” United States v. Browne, 505 F.3d 1229, 1265 (11th Cir. 2007). When a

public official “secretly makes his decision based on his own personal interests —

as when an official accepts a bribe or personally benefits from an undisclosed

conflict of interest — the official has defrauded the public of his honest services.”

United States v. Lopez-Lukis, 102 F.3d 1164, 1169 (11th Cir. 1997).

Here, Swann received approximately $100,000 in landscaping and lawn

63

Section 1341 provides in pertinent part:

Whoever, having devised or intending to devise any scheme or artifice to defraud,

. . . places in any post office or authorized depository for mail matter, any matter or

thing whatever to be sent or delivered by the Postal Service, or deposits or causes to

be deposited any matter or thing whatever to be sent or delivered by any private or

commercial interstate carrier, or takes or receives therefrom, any such matter or

thing, or knowingly causes to be delivered by mail or such carrier according to the

direction thereon, or at the place at which it is directed to be delivered by the person

to whom it is addressed, any such matter or thing, shall be fined under this title or

imprisoned not more than 20 years, or both.

18 U.S.C. § 1341.

82

maintenance from a company (PUGH) that he had the power to favor in the sewer

rehabilitation program. In the summer of 2000, after Swann told PUGH’s Yessick

he had overspent in remodeling his house, Yessick hired Guthrie Landscaping to

landscape Swann’s two properties. By December 2001, PUGH had paid Guthrie

more than $93,000, including $1,200 per month in 2001 for lawn maintenance. In

January 2002, Yessick asked Guthrie to stop submitting invoices to PUGH and

instead advanced Guthrie $47,000 for three years of landscaping and maintenance.

PUGH paid a total of approximately $140,000 to Guthrie for landscaping work for

the Swanns.64

Although Swann contends there was “no bribe” and none of this was “done

in secrecy,” the evidence shows PUGH and Swann took steps to conceal any

record of the services provided to Swann. Guthrie mailed its invoices to PUGH

and, at Yessick’s request, identified the work by job number only. Yessick

directed PUGH’s controller to charge the expense to the Metro Park Roadway, a

County job. Guthrie’s invoices were never found in PUGH’s files.

After Swann and Yessick learned of the investigation, Guthrie was abruptly

asked to stop working at Swann’s home, even though there was a balance

64

In addition to the substantive bribery counts against Swann (Count 52) and PUGH

(Count 61) for these landscaping services, both defendants were convicted of separate counts

(Counts 90-100) of honest services mail fraud for payments PUGH made by mail to Guthrie.

83

remaining on its $47,000 advance. In August and September 2002, approximately

two years after hiring Guthrie, Yessick directed his assistant to create invoices to

Swann’s mother and mother-in-law for landscaping, tree removal, and “remodeling

work.” The Swanns then took out home equity loans in the names of their

mothers, and wrote two checks to PUGH totaling approximately $59,000 on joint

accounts they held with their mothers. Yessick gave these checks directly to

PUGH’s controller, telling her they were partial payment for $105,000 in

landscaping work PUGH had done, which work he had previously directed her to

record as “miscellaneous AR.” Yessick told the controller to credit the $59,000 in

checks to PUGH as “miscellaneous income” and “to write off” the approximately

$46,000 that remained.

Swann contends that PUGH merely located the landscaping contractor and

that he always intended to reimburse PUGH for payments to Guthrie. However,

PUGH and Swann concealed the landscaping arrangement. The concealment itself

is strong evidence that Swann accepted these services not as a loan, but as a bribe.

See United States v. Hunt, 521 F.3d 636, 646-47 (6th Cir. 2008), cert. denied, 129

S. Ct. 2157 (2009); United States v. Dial, 757 F.2d 163, 170 (7th Cir. 1985).

Swann also claims he was unable to, and did not, assist PUGH in any way.

Yet, five days after PUGH’s President Yessick hired Guthrie to landscape Swann’s

84

two properties, Swann granted a 180-day extension for PUGH’s joint venture on

the Vestavia Trunk project. That extension saved PUGH’s joint venture $180,000

in potential liquidated damages. Two months earlier, Swann had denied a 120-day

extension request on the same project, noting that timely completion of the project

was “a requirement of the specifications.” And in 2000, Swann approved a

$827,417.75 field directive for PUGH’s Paradise Lake project and caused it to be

charged to the unrelated Cahaba River project. As noted earlier, Barber had

designated the project as an emergency, and then Swann later approved this field

directive.

The evidence fully supports the jury’s guilty verdict on Counts 90-100 as to

Swann and PUGH.65

D. Roland Pugh’s Arguments

Roland Pugh challenges the sufficiency of the evidence to support his

conviction for conspiracy to commit bribery of McNair (Count 1). Roland Pugh

65

Swann also claims the district court erred by refusing his proposed jury instruction that

good faith is a complete defense to mail fraud. The district court instructed the jury that to

convict, it must find beyond a reasonable doubt that defendants “knowingly devised or

participated in a scheme to fraudulently deprive the public of an intangible right of honest

services” and did so willfully with intent to defraud. The court defined “intent to defraud” as “to

act knowingly and with the specific intent to deceive someone.” Because a finding of specific

intent to defraud necessarily excludes a finding of good faith, Swann’s requested instruction was

“substantially covered by other instructions that were delivered,” and Swann has shown no error

in the refusal to give his requested good faith charge. United States v. Opdahl, 930 F.2d 1530,

1533 (11th Cir. 1991) (quotation marks omitted).

85

also argues the government failed to prove a “wheel” or “hub and spoke”

conspiracy because there was no evidence he knew the Rast and Dougherty

defendants (the other “spokes”) were bribing McNair (the “hub”).

This ignores the fact that Roland Pugh directed Grady Pugh to fly McNair’s

daughter and FWDE’s superintendent Bill Bailey (who was overseeing

construction at McNair’s studio) on the PUGH company airplane to Georgia to

pick out carpet for McNair’s studio. Before take-off, Roland Pugh told Grady

Pugh that “McNair has called now and says that he’s broke and he doesn’t have

enough money to leave for the deposit on the carpet. So, if you would, write a

check for the deposit.” Grady Pugh paid the deposit with a $4,820 PUGH check

and had it treated on the company’s books as an expense on the “last rehab

contract.”66

Roland Pugh also gave McNair money in connection with the project to

develop McNair’s studio. When the project began, Roland Pugh told PUGH’s

other three owners, Grady Pugh, Andy Pugh, and Yessick, that they had to give

money to McNair because he was building a studio and, as ten percent owners,

they had to “kick in” their ten percent. Grady Pugh gave approximately $1,500 in

66

Grady Pugh’s testimony in this regard was corroborated by Bill Bailey’s testimony.

86

cash to Roland Pugh’s secretary that time to give to McNair.67

On another occasion, Roland Pugh collected money from the three other

PUGH owners to give to McNair for his studio. On July 18 and 19, 2000, three of

them wrote checks to cash in proportion to their ownership interests. (Roland

Pugh: $7,000, Andy Pugh: $1,000, Yessick: $1,000). Roland Pugh gave Grady

Pugh an envelope of money and asked him to give it to McNair. Grady Pugh took

it to McNair’s studio where he saw FWDE’s Bailey and told Bailey he (Grady

Pugh) was there to help McNair, and that it was “financial help” that McNair

needed at that time. Grady Pugh then visited with McNair for a few minutes and

set the envelope down between the seats of the van they were in as McNair

watched. After McNair retired, Roland Pugh complained to Grady Pugh about

McNair’s demand for help building a retirement home, saying that “surely this is

the last time we’ll have to do anything for him since he’s out of office.”68

67

We reject Roland Pugh’s claim that his conspiracy conviction falls outside of the statute

of limitations because no member of the “Pugh spoke” committed an overt act after August 26,

2000. The Rast and Dougherty defendants took actions in furtherance of the conspiracy well

within the statute of limitations. “[A]n individual conspirator need not participate in the overt

act in furtherance of the conspiracy. Once a conspiracy is established, and an individual is

linked to that conspiracy, an overt act committed by any conspirator is sufficient.” United States

v. Thomas, 8 F.3d 1552, 1560 n.21 (11th Cir. 1993). Because Roland Pugh had joined the

conspiracy to bribe McNair and because that conspiracy continued into the statute of limitations

period, Roland Pugh’s conviction stands even if he took no actions within that period. The

district court properly instructed the jury that it could convict Roland Pugh if any co-conspirator

committed an act after August 26, 2000.

68

Roland Pugh cites the drug case of United States v. Mercer, 165 F.3d at 1335-36, for

the proposition that there is no conspiracy where there is merely a “buy-sell transaction.” As

87

Later, after McNair asked Roland Pugh to pay for the studio’s $40,000 air

conditioning system, Roland Pugh gathered funds by writing checks to his

daughters-in-law and to cash. Once again, Grady Pugh delivered an envelope of

cash to McNair, this time at his house.

As a result, there was sufficient evidence for the jury to convict Roland Pugh

and to find that he was aware of at least some of the other co-conspirators, such as

FWDE and FWDE’s Bailey, given that they were working on separate parts of a

larger project. Accordingly, we reject Roland Pugh’s sufficiency of the evidence

challenge to his conviction on Count 1.

The cases Roland Pugh relies on are inapposite. In United States v.

Chandler, 388 F.3d 796, 807-08 (11th Cir. 2004), the “hub” of the conspiracy

ensured “there was no connection whatsoever between the various spokes,” and the

spokes “knew nothing about each other.” The evidence here shows that Roland

Pugh was aware not only of PUGH, Yessick, and Grady Pugh’s involvement in the

McNair project, but also that of the Dougherty and Rast defendants’ involvement.

For the same reason, United States v. Glinton, 154 F.3d 1245 (11th Cir. 1998), is

not on point. Id. at 1251 n.5 (concluding “hub and spoke” conspiracy must have

explained earlier, Mercer is materially different from § 666 bribery conspiracy cases. In any

event, Roland Pugh’s argument lacks merit as to Count 1 because there is ample evidence that

persons other than Roland Pugh and McNair were involved in the transactions in the bribery

conspiracy.

88

“some interaction between those conspirators who form the spokes of the wheel as

to at least one common illegal object”) (quotation marks omitted).

E. McNair’s Arguments Regarding Dawson

The evidence at the McNair trial showed McNair’s conviction for accepting

a bribe from Dawson is adequately supported. Dawson’s firm received millions of

dollars in no-bid engineering contracts from McNair, and the vast majority of

Dawson’s work was on JCESD contracts. McNair solicited the studio’s $16,400

audio-video system from Dawson. Dawson “was uncomfortable with the whole

situation” and would not have agreed if McNair was not part of the sewer

rehabilitation process, so he had the store conceal the delivery address on the

invoice.

VIII. 404(B) EVIDENCE

All defendant-appellants challenge the admission of other bad acts evidence

under Federal Rule of Evidence 404(b).69 Specifically, they contend the district

courts erred by admitting, for example, Swann-bribe evidence in the McNair trial

and McNair-bribe evidence in the Swann trial.

69

A district court’s evidentiary rulings under Federal Rule of Evidence 404(b) are

reviewed only for “a clear abuse of discretion.” US Infrastructure, 576 F.3d at 1208. “[T]his

Court ‘will not hold that the district court abused its discretion where it reached the correct result

even if it did so for the wrong reason.’” Id. (quoting United States v. Samaniego, 345 F.3d 1280,

1283 (11th Cir. 2003)).

89

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident . . . .

Fed. R. Evid. 404(b). This Court uses a three-part test to determine whether other

bad acts are admissible under Rule 404(b):

First, the evidence must be relevant to an issue other than the defendant's

character; Second, the act must be established by sufficient proof to

permit a jury finding that the defendant committed the extrinsic act;

Third, the probative value of the evidence must not be substantially

outweighed by its undue prejudice . . . .

United States v. Matthews, 431 F.3d 1296, 1310-11 (11th Cir. 2005) (quotation

marks omitted). “[I]n every conspiracy case, a not guilty plea renders the

defendant’s intent a material issue. Evidence of such extrinsic evidence as may be

probative of a defendant’s state of mind is admissible unless the defendant

affirmatively takes the issue of intent out of the case.” Id. at 1311 (alterations and

internal quotation marks omitted).

Moreover, Rule 404(b) does not exclude evidence that is “inextricably

intertwined” with evidence of the charged offense. United States v. Wright, 392

F.3d 1269, 1276 (11th Cir. 2004); United States v. Aleman, 592 F.2d 881, 885 (5th

Cir. 1979). Rule 404(b) does not exclude evidence that is “linked in time and

90

circumstances with the charged crime” or that “forms an integral and natural part

of an account of the crime to complete the story of the crime for the jury.” Wright,

392 F.3d at 1276 (quotations omitted); United States v. Edouard, 485 F.3d 1324,

1344 (11th Cir. 2007).

We conclude the contested evidence was admissible for three reasons. First,

the evidence was inextricably intertwined with evidence of the charged bribery

offenses. Second, even if not inextricably intertwined, this evidence was relevant

to show corrupt intent and admissible under 404(b). Defendant-appellants

expressly argued they lacked corrupt intent and gave gifts to McNair and Swann

out of friendship and good will.70 Evidence that the contractor-defendants gave

things of value to Swann in McNair’s trial and to McNair in Swann’s trial was

highly probative of the contractor-defendants’ intent. See Edouard, 485 F.3d at

1345 (concluding extrinsic evidence is relevant “where the state of mind required

for the charged and extrinsic offenses is the same”). Moreover, evidence of similar

conduct that occurs during the same time period has “heightened” probative value.

Jones, 913 F.2d at 1566. Indeed, the district court judge, in the McNair trial,

explained in a pre-trial order:

70

Roland Pugh does not stress lack of corrupt intent because he claims he was not

involved at all in any gift. Other than Roland Pugh, defendants do not argue things of value

were not given by them to County officials, but they claim they were gifts, not bribes.

91

While the jury might conceivably find that the defendant felt such a

strong sense of friendship with McNair that they would give him

substantial gifts or make him substantial loans, the fact that they gave

alleged “gifts” or made “loans” to others involved with the same or

similar projects would certainly be relevant to the issues of “motive” and

“intent.” It could also bear on “plan” . . . [and i]f the projects are the

same or similar, they may well be a part of the same “series of

transactions.” . . . [W]hat might arguably be a “gift” to one person

becomes less likely a gift if the “gifts” are widespread to others involved

with the same or similar projects.[71]

Similarly in the Swann trial, another district court judge found that this sort of

evidence of intent is “exactly what 404(b) testimony is here for.”

Third, the evidence was admissible under 404(b) to show the contractor-

defendants’ common plan and motive. Specifically, the evidence showed a

common plan of bribing County officials controlling the sewer projects by

providing them with work on their personal homes or businesses and working

together to do so during the same time frame of the sewer projects. For example,

in the McNair trial, evidence showed — just as FWDE’s Bailey was supervising,

and RAST and PUGH were providing labor and materials for the McNair studio

expansion — FWDE’s Stanger was supervising and using a RAST credit card to

purchase materials for Swann’s separate home renovation. Similarly, in the Swann

trial, the evidence showed that RAST sent Luke Cobb to pour a concrete

71

The McNair judge stated in a subsequent order, “[t]he offenses were similar and

temporally close. The 404(b) evidence was clearly appropriate to meet the government’s

requirement to prove intent.”

92

foundation for McNair’s studio, just as he had done for the expansion of Swann’s

home, and that PUGH had provided Chandler with landscaping, just as it did for

Swann. Indeed, the evidence recounted at length above gives repeated examples of

how the 404(b) evidence was relevant to show both corrupt intent and a common

plan and motive.

Furthermore, the district courts in both the McNair and Swann trials gave

limiting instructions for the 404(b) evidence several times during the trials. See

United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993) (concluding

prejudice could be mitigated by giving a cautionary instruction on the limited use

of such evidence). In the McNair trial, for example, after testimony of

Dougherty’s contributions to Swann’s remodeling, the court instructed in part:

This evidence is being allowed for the limited purpose, with respect to

Mr. Dougherty, as to what Mr. Dougherty’s intent may have been at the

time that he may have made payments, or contributions, or gifts, to Mr.

McNair. Not that Mr. McNair is charged with receiving anything in

connection with Mr. Swann’s house.

But the evidence is allowed for the purpose of your considering that if

Mr. Dougherty was making some sort of payments, or contributions, or

gifts, on behalf of Mr. McNair; and if he was also making some sort of

gifts, or payments, or contributions on behalf of Mr. Swann, you can

consider that combination with regard to your determination, which will

be a necessary determination for you to make, as to what Mr. Dougherty

and his company’s intent was, and the nature of that intent, whether it be

corrupt or otherwise, at the time he made gifts, or contributions, or

payments, on behalf of Mr. McNair.

93

In the Swann trial, the court gave similar limiting instructions several times.72

And the jury acquitted some defendants on some counts while convicting

them on others. This further demonstrates the jury was not confused and could

segregate the 404(b) evidence from other evidence. United States v. Prosperi, 201

F.3d 1335, 1346 (11th Cir. 2000) (“A discriminating acquittal also can signal that

the jury was able to sift through the evidence properly.”); United States v. Coy, 19

F.3d 629, 635 (11th Cir. 1994) (concluding that a split verdict demonstrates

“absence of confusion” for 404(b) purposes).73

72

In the Barber and Wilson

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