Petition for Writ of Certiorari — Joel Iverson Gilbert, Petitioner v. United States

APPENDIX

1a

APPENDIX A

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-14654

D.C. Docket No. 2:17-cr-00419-AKK-TMP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LYNN ROBERSON,

JOEL IVERSON GILBERT,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Alabama

(May 27, 2021)

Before WILSON and BRANCH, Circuit Judges, and

RESTANI,* Judge.

RESTANI, Judge:

*

The Honorable Jane A. Restani, United States Judge, U.S.

Court of International Trade, sitting by designation.

2a

The case involves the Defendants-Appellants’

concealed payments of hundreds of thousands of

dollars to an Alabama Representative through his

charitable foundation in exchange for “advocacy” and

“community outreach” intended to undermine the

Environmental Protection Agency’s (“EPA”) efforts to

clean up a Superfund site. The Defendants-Appellants

were convicted of bribery under 18 U.S.C. § 666(a)(2),

among other charges, following a month-long trial

with

numerous

witnesses,

including

the

Representative himself, and hundreds of exhibits.

Defendants-Appellants claim, inter alia, that the

convictions should be overturned because no

reasonable jury could find that the Representative

committed an “official act,” an element required of a

different flavor of federal bribery – 18 U.S.C. § 201.

The court concludes that the district court was correct

not to equate these two federal statutes and that the

Appellants’ remaining arguments regarding the jury

instructions and the district court’s decision not to

sever the Appellants’ trial are unavailing. The

judgments of conviction are affirmed.

BACKGROUND

Joel Gilbert (“Gilbert”), a partner at Balch &

Bingham LLP (“Balch”), and David Roberson

(“Roberson”), a lobbyist and Vice-President of

Governmental Affairs at Drummond Company

(“Drummond”), appeal their guilty verdicts following

a joint jury trial for conspiracy, 18 U.S.C. § 371;

bribery (aiding and abetting), id. at §§ 2, 666(a)(2);

3a

honest services wire fraud (aiding and abetting), id. at

§§ 2, 1343, 1346; and money laundering conspiracy, id.

at § 1956(h). Gilbert and Roberson were involved in a

scheme to thwart the EPA’s efforts to expand the

geographical area of the 35th Avenue Superfund site

(“35th Avenue site”) and the EPA’s proposed addition

of the site to the National Priorities List (“NPL”) by

paying Alabama Representative Oliver Robinson

(“Representative Robinson”) to act counter to these

efforts.1 In particular, the government highlighted

three actions by Representative Robinson as violative

of 18 U.S.C. § 666: (1) Representative Robinson

attended a local EPA meeting with talking points

about the Superfund site and its potential expansion,

prepared by Gilbert, (2) Representative Robinson

requested to attend and spoke at a meeting of the

Alabama Environmental Management Commission

(“AEMC”) to promote Drummond’s position against

the EPA, and (3) Representative Robinson voted a

resolution out of the Alabama House of

Representative’s Rules Committee, which was drafted

by Gilbert, opposing the EPA’s activities in Alabama.

The 35th Avenue site is in North Birmingham,

Alabama. Prior to the events at issue, the EPA

established the 35th Avenue site and found the Walter

Coke Company responsible for the pollution. In 2013,

however, the EPA sent letters to five companies,

including ABC Coke, a subsidiary of Drummond,

naming those five companies as additional potentially

1 Representative Robinson pleaded guilty to bribery, conspiracy

to commit bribery, and honest services wire fraud, among other

offenses, for his involvement in the scheme.

4a

responsible parties (“PRP”) for the site’s soil

contamination. In 2014, following a petition by a local

environmental group, the Greater Birmingham

Alliance to Stop Pollution (“GASP”), EPA Region 4 in

Atlanta began to consider whether the site should be

expanded into nearby Tarrant, where ABC Coke is

located. The EPA also proposed adding the 35th

Avenue site to the National Priorities List (“NPL”),

which would allow access to additional federal funds

for the cleanup.

To add a site to the NPL, the EPA was required

to reach an agreement with the State of Alabama to

assure the provision of “all future maintenance of the

removal and remedial actions” for the site, “assure the

availability of a hazardous waste disposal facility,”

and pay for, or otherwise assure payment of, ten

percent of the cost of the cleanup. See 42 U.S.C. §

9604(c)(3). The Alabama Governor at that time,

Robert Bentley, delegated the decision on whether to

reach an agreement with the EPA to the Alabama

Department

of

Environmental

Management

(“ADEM”). Although ADEM was the initial

decisionmaker on this issue, the AEMC, a body that

hears regulatory appeals from ADEM, selects the

director of ADEM, implements applicable rules and

regulations, and can make recommendations to

ADEM, held a hearing attended by the ADEM

director. Ultimately, the Alabama Legislature would

be required to appropriate any money allocated from

the State, if the site was to be listed on the NPL. See

42 U.S.C. § 9604(c)(3).

5a

Drummond, through Roberson, undertook efforts to

hamper the EPA’s attempts to expand the site, add it

to the NPL, and find ABC Coke responsible for the

cleanup costs. These efforts included retaining Balch,

and its partner Gilbert, to represent ABC Coke. Using

Roberson’s preexisting lobbying relationship with

Representative Robinson, Gilbert and Roberson

enlisted him to help run a “community outreach

program” aimed at garnering public support for

Drummond’s position.2 In February 2015, Gilbert and

Representative Robinson signed an agreement, which

established a consulting relationship between Balch

and the Oliver Robinson Foundation Inc. (“the

Foundation” or “Robinson Foundation”),3 retroactively

effective to December 1, 2014, when Representative

Robinson first met with the EPA.4 The Foundation

2 Representative Robinson testified that he did not fulfill, or even

attempt to fulfill, many of the designated outreach efforts listed

in the outreach proposal he submitted to Appellants.

3 Alliance for Jobs and the Economy (“AJE”) was incorporated in

March 2015. AJE was headed by Roberson, who decided whether

to pay Representative Robinson from AJE or Drummond funds

that were then routed through Balch before being paid to the

Foundation. AJE charged hefty annual membership fees to

prominent industries in the area. AJE members testified that

they were unaware that Representative Robinson or the

Foundation were being compensated through AJE. In fact,

Gilbert testified that all the donations and membership fees went

to paying the Foundation.

In the September 2015, Robinson’s Foundation started a

community outreach campaign called “Get Smart Tarrant.” This

program, run by Representative Robinson’s daughter, focused its

efforts on portraying the EPA involvement in Birmingham as bad

for the local economy and scientifically unreliable. The work

4

6a

Contract, which appears to be largely boilerplate,

required Representative Robinson to abide by all

applicable laws and ethical rules. As indicated above,

three actions undertaken by Representative

Robinson, however, resulted in Roberson and Gilbert’s

indictment on federal charges.

First, in December 2014, Representative

Robinson attended an EPA meeting about its “Make a

Visible Difference” campaign with talking points

prepared by Gilbert about the 35th Avenue site. Prior

to the meeting, Representative Robinson informed

Gilbert that he would be meeting with the EPA, which

led to Gilbert contacting Roberson, who then approved

the request for $7,000 a month for the Foundation, all

in the span of a few short hours. Although some of the

comments Representative Robinson made at the

meeting were seemingly innocuous, others at best

displayed a pro-business stance and at worst

telegraphed to the EPA that the local business

community, and potentially local government, were

ready to stymie the EPA’s 35th Avenue site efforts.5

continued until May 2016 and was funded by Balch, which was

reimbursed by AJE or Drummond as decided by Roberson.

5 For instance, several of the questions read as follows:

2. EPA has already made the area a superfund

site. Why does EPA want it on the National

Priorities List (NPL)? What benefit is there in

placing it on the NPL?

3. It is my understanding that to put the site on

the NPL the state must agree. I’ve seen media

reports that the state does not agree and is going

7a

Without informing the EPA officials, Representation

Robinson recorded audio of the meeting on his iPhone

and then sent a copy to Gilbert who forwarded it to

Roberson.6

Second, Representative Robinson spoke at a

public meeting of the AEMC after Gilbert drafted a

letter on his behalf requesting permission to speak.

Representative Robinson then met with Roberson and

Gilbert to discuss the meeting and strategize. The

Foundation Contract was signed on February 16,

2015, a few days before the meeting. Representative

Robinson then attended the AEMC meeting as a local

representative and spoke to the AEMC and an

audience including the director of the ADEM, Lance

LeFleur (“LeFleur”). Representative Robinson

expressed concern regarding the EPA’s efforts in his

legislative district and sought “answers from [the

to fight it. Why? What are the impacts of the

state not agreeing?

4. From what I understand this all started with

Walter Coke contaminating the area and they

were cleaning it up. If so, why isn’t EPA just

making them finish the job?

5. From what I understand, EPA has identified

several other companies it is going after right

now to help with the cleanup. Why is there a need

to try to bring in all these other companies into

this? Seems like the only thing this will do is slow

down the clean up because of litigation between

all these companies about who is really

responsible and them also fighting EPA. Is that

not accurate?

6 The roughly thirty-minute recording was played in open court.

8a

AEMC] – or the ADEM.” Representative Robinson

remarked that he did not think expansion of the 35th

Avenue site was supported by scientific evidence, that

he did not think the area should be listed as a

Superfund site or on the NPL, and that finding

additional companies liable for the cleanup would

harm residents given the “decades of litigation that

will occur.” At no point did Representative Robinson

disclose his affiliation with Drummond, Balch, or the

Appellants. Following the meeting, at the behest of

Roberson, Representative Robinson sent LeFleur a

letter drafted by Gilbert asking for information

regarding LeFleur’s communications with the EPA

and other public officials about the 35th Avenue site.

Third, in May 2015, Representative Robinson

helped vote a resolution out of the House Rules

Committee, drafted by Gilbert, entitled “Urging

Increased Oversight of and Opposition to the EPA’s

Activities in Alabama” (“SJR-97”).7 As indicated by

Gilbert’s timesheets, he met with Roberson and

Representative Robinson the same day that he drafted

the resolution. The resolution described EPA action in

the area, in particular regarding the 35th Avenue site,

stated that the EPA was operating on the basis of

faulty science and was working against ADEM, urged

the EPA to reconsider its actions, and asked that

ADEM and the Alabama Attorney General “combat

7 Roberson disputes whether Representative Robinson voted on

the measure. The measure passed by voice vote, so there is no

written record of the vote, but Representative Robinson admitted

during the trial that he voted on the measure.

9a

the EPA’s overreach.” The Resolution eventually

passed both houses of the Legislature and was signed

by the Governor.

Representative Robinson pleaded guilty to his

role in the scheme and testified to the events outlined

above at Roberson and Gilbert’s trial. Representative

Robinson’s testimony, along with other evidence, led

the jury to convict Roberson and Gilbert on all counts.8

JURISDICTION & STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 of

an appeal of a final judgment of conviction. The court

reviews de novo the sufficiency of the evidence, see

United States v. Garcia, 405 F.3d 1260, 1269 (11th

Cir. 2005) (citation omitted), and “interpret[s] the

facts in the light most favorable to the government.”

United States v. Blankenship, 382 F.3d 1110, 1116

(11th Cir. 2004) (citation omitted). We review de novo

whether jury instructions misstated the law or misled

the jury. See United States v. Baston, 818 F.3d 651,

660 (11th Cir. 2016). The district court’s refusal to

sever a case is reviewed for abuse of discretion. See

United States v. Browne, 505 F.3d 1229, 1268 (11th

Cir. 2007).

DISCUSSION

8 Appellants were convicted for Count 1: conspiracy, 18 U.S.C. §

371; Count 2: bribery (aiding and abetting), id. at §§ 2, 666(a)(2);

Counts 3, 4, and 5: honest services wire fraud (aiding and

abetting), id. at §§ 2, 1343, 1346; and Count 6: money laundering

conspiracy, id. at § 1956(h).

10a

I.

Sufficiency of the Evidence

Appellants argue9 that under the standard set

forth in McDonnell v. United States, ––– U.S. ––––,

136 S. Ct. 2355, 195 L.Ed.2d 639 (2016), the actions

taken by Representative Robinson to promote

Drummond’s position on the EPA issue do not

constitute “official acts” and thus do not satisfy 18

U.S.C. § 666(a)(2)’s requirement that acts be taken “as

an agent of Alabama in connection with ‘business’ of

the State.” At base, they argue that bribery under §

666 requires an official act as is required for bribery

under 18 U.S.C. § 201, the statute at issue in

McDonnell. According to Appellants, most of the

actions undertaken by Representative Robinson were

either not official acts or cannot be connected to

Appellants.

Appellants additionally claim that because it is

unknown which acts the jury relied upon in convicting

Gilbert and Roberson, a new trial is required to ensure

that the jury did not convict for legal behavior.

Appellants contend that Representative Robinson is

not an agent of Alabama for the purposes of 18 U.S.C.

§ 666, because he had no authority over the executive

agencies AEMC and ADEM. Finally, Appellants

Appellants have adopted portions of each other’s briefs. For

ease of reference, the opinion refers to such arguments as being

made by Appellants and only specifies an individual Appellant

when he alone is making an argument.

9

11a

counter the government’s “retainer” theory10 of

culpability as unsupported and legally flawed in the

wake of McCormick v. United States, 500 U.S. 257,

111 S.Ct. 1807, 114 L.Ed.2d 307 (1991) and United

States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011)

(per curiam).

The phrase “official act” is not in 18 U.S.C. §

666, which criminalizes “[t]heft or bribery concerning

programs receiving Federal funds” and reads:

(a)

Whoever, if the circumstance

described in subsection (b) of this section

exists—

...

(2) corruptly gives, offers, or

agrees to give anything of value to any

person, with intent to influence or

reward an agent of an organization or of

a State, local or Indian tribal

government, or any agency thereof, in

connection

with

any

business,

transaction, or series of transactions of

such organization, government, or

agency involving anything of value of

$5,000 or more;

10 The “retainer,” “as opportunities arise,” or “stream of benefits”

theory of bribery, occurs when a person bribes an individual or

entity in exchange for a continuing course of conduct. See United

States v. Ganim, 510 F.3d 134, 147–49 (2d Cir. 2007) (detailing

a bribery scheme based on an ongoing course of conduct); see also

United States v. Lopez-Cotto, 884 F.3d 1, 8 (1st Cir. 2018) (same).

12a

shall be fined under this title,

imprisoned not more than 10 years, or

both.

(b)

The circumstance referred to in

subsection (a) of this section is that the

organization, government, or agency

receives, in any one 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. Appellants urge the court to read into

this statute the “official act” requirement from 18

U.S.C. § 201,11 a different federal bribery law covering

11 Like section 666, section 201 penalizes both giving bribes and

accepting bribes and the relevant subsection regarding giving

bribes says:

(b) Whoever—

(1) directly or indirectly, corruptly gives,

offers or promises anything of value to any public

official or person who has been selected to be a

public official, or offers or promises any public

official or any person who has been selected to be

a public official to give anything of value to any

other person or entity, with intent—

(A) to influence any official act; or

(B) to influence such public

official or person who has been selected

to be a public official to commit or aid in

committing, or collude in, or allow, any

fraud, or make opportunity for the

commission of any fraud, on the United

States; or

13a

“[b]ribery of public officials and witnesses[.]” 18

U.S.C. § 201. We have previously held that 18 U.S.C.

§ 666 has no such requirement and is distinguishable

from 18 U.S.C. § 201:

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 (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 §§

666(a)(1)(B) or 666(a)(2).

(C) to induce such public official

or such person who has been selected to

be a public official to do or omit to do any

act in violation of the lawful duty of such

official or person;

18 U.S.C. § 201(b)(1) (emphasis added).

14a

United States v. McNair, 605 F.3d 1152, 1190 (11th

Cir. 2010). The question is whether McNair remains

good law after McDonnell.

McDonnell involved an application of 18 U.S.C.

§ 201 to certain actions by the former governor of

Virginia. See 136 S. Ct. at 2361. The Supreme Court

held that an “official act” under § 201(a)(3)12 requires

a jury to “identify a ‘question, matter, cause, suit,

proceeding or controversy’ involving the formal

exercise of governmental power.” Id. at 2374 (quoting

18 U.S.C. § 201(a)(3)). The Court vacated and

remanded McDonnell’s conviction because the jury

instructions did not comport with this definition of

“official act.” See id. at 2375.

The only Circuit Courts of Appeals to directly

consider the issue in published cases post- McDonnell,

the Second and Sixth, have not imported an “official

12 “[T]he term ‘official act’ means any decision or action on any

question, matter, cause, suit, proceeding or controversy, which

may at any time be pending, or which may by law be brought

before any public official, in such official’s official capacity, or in

such official’s place of trust or profit.” 18 U.S.C. § 201(a)(3). In

McDonnell, the parties agreed to “define honest services fraud

with reference to the federal bribery statute, 18 U.S.C. § 201.”

See 136 S. Ct. at 2365. Roberson argues that because the honest

services statute does not use “official act,” either, it is sensible to

extend the official act requirement to section 666. This

misunderstands the procedural posture in McDonnell and,

without statutory support, improperly attempts to require an

“official act” for federal bribery laws generally.

15a

act” requirement into section 666. See United States

v. Ng Lap Seng, 934 F.3d 110, 134 (2d Cir. 2019)

(holding that “ McDonnell’s ‘official act’ standard does

not pertain to bribery as proscribed by § 666”); United

States v. Porter, 886 F.3d 562, 565–66 (6th Cir. 2018)

(holding that “[i]n McDonnell, the Supreme Court

limited the interpretation of the term ‘official act’ as it

appears in § 201, an entirely different statute than [§

666]”); cf. United States v. Maggio, 862 F.3d 642, 646

n.8 (8th Cir. 2017) (stating with regard to a separate

issue, McDonnell “had nothing to do with § 666”). In

considering the purpose of section 666 to protect “the

integrity of entities receiving substantial sums of

federal funds” and the statute’s “expansive,

unqualified language,” the court has repeatedly

rejected statutory constructions aimed at narrowing

section 666’s scope. United States v. Keen, 676 F.3d

981, 990–91 (11th Cir. 2012) (internal quotation and

citations omitted) (collecting cases in which the court

has rejected attempts to narrow the scope of section

666). Consistent with the views of our sister Circuits,

we hold that McDonnell does not disturb this court’s

holding in McNair and we do not read into section 666

limitations unsupported by the language of the

statute.13

13

The district court considered and dismissed concerns that

part-time legislators, which exist in many states and may be

required to supplement their income, may not have clear notice

on what differentiates permissible paid advocacy work versus

bribery. Although Alabama allows certain public officials to

represent private interests in certain proceedings, provided they

disclose their affiliation, see Ala. Code § 36-25-10, legislators are

prohibited from representing entities, at least before executive

16a

Turning to the statute and facts at issue, there

was sufficient evidence to convict Roberson and

Gilbert under 18 U.S.C. § 666(a)(2). The statute

provides that any person who (1) “corruptly gives,

offers, or agrees to give anything of value to any

person, with intent to influence or reward[,]” (2) “an

agent of an organization or of a State, local or Indian

tribal government, or any agency thereof,” (3) “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[,]” when (4) the “organization, government, or

agency 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[,]” is guilty of

bribery. 18 U.S.C. §§ 666(a)(2), (b). The parties

stipulated that the fourth requirement was met, the

others are evaluated in turn.

The first element requires that the jury find

that Roberson and Gilbert each acted with a corrupt

state of mind in paying the Foundation. Although

departments and agencies see id. § 36-25-1.1. Further,

Representative Robinson was contractually prohibited from

disclosing and, in fact, never disclosed his affiliation with

Drummond. Finally, 18 U.S.C. § 666(a)(1)(B) requires that an

agent act “corruptly” to face liability. This scienter requirement

serves as a backstop against convicting legislators who do not

realize their conduct may cross sometimes obscure legal lines.

17a

Gilbert testified14 that he did not enter into a contract

with Representative Robinson corruptly, given the

vast paper trail and the testimony of Representative

Robinson, the jury had sufficient evidence to find that

Roberson and Gilbert were corruptly engaging

Representative Robinson. The jury was free to

disbelieve Gilbert’s testimony and to infer from

Representative Robinson’s testimony that the

Appellants

acted

corruptly

in

soliciting

Representative Robinson.

Representative Robinson testified that it was

Roberson who first approached him and that Roberson

was specifically interested in whether Robinson had

any relationship with then Mayor of Birmingham,

William Bell, and Congresswoman Sewell such that

Representative Robinson could aid Drummond in

enlisting their help regarding Drummond’s efforts.

Although Representative Robinson did not end up

attempting to influence these individuals, the jury

could reasonably infer that from the start Roberson

was interested in using Representative Robinson and

his position to influence other decisionmakers. Before

speaking at the AEMC meeting, Representative

Robinson met with Appellants to discuss how to

approach the meeting and discuss the possibility of

arranging a meeting between the Representative and

Lanier Brown, the head of the AEMC, and to ask

ADEM Director LeFleur to come to Birmingham.

Representative Robinson testified that during this

meeting, Appellants expressed that the purpose of

14 Roberson did not testify.

18a

having the Representative speak at the AEMC

meeting was to engage ADEM because it was “the only

vehicle at that time . . . that could slow the process of

the EPA[.]”

Although one might argue that there was

nothing improper or illegal about Robinson’s contract

with Balch to provide consulting and community

outreach work for clients like Drummond,

Representative Robinson testified that the community

outreach work did not start until September 2015,

long after the contact was signed and after

Representative Robinson had already been issued

several checks for many thousands of dollars from

Drummond or AJE through Balch. As Gilbert

confirmed, Robinson’s proposal was the only one

considered for the community work and there was no

due diligence done to ensure his Foundation was even

able to do the work. Further, it was just four days

before the AEMC meeting that Representative

Robinson signed the contract with Balch and was

issued a rushed check for $14,000. The jury could

reasonably infer from these facts that Appellants’

intention was not primarily to enlist the

Representative’s community outreach services, but

that he was engaged for his ability to use his position

to influence other decisionmakers. Further, although

it might be argued that ADEM had no official role to

play by the time Representative Robinson spoke at the

AEMC meeting, Appellants were exchanging emails

discussing how they might be able to “influence

ADEM’s position,” and to make sure to “preserve any

issues we want raised in the [NPL] appeal process,”

19a

just a few days after the meeting. ADEM Director

LeFleur testified that he was still engaging with EPA

officials about the 35th Avenue site after the AEMC

meeting, at least as late as October 2015.

Further, Gilbert testified that the payments to

the Robinson Foundation were handled by Roberson

personally and that the payment process was such

that it “[i]n a general sense” hid the relationship

between Drummond and the Robinson Foundation by

routing the payments through the law firm. The

government proffered evidence that Appellants

concealed Representative Robinson’s payments from

both the AJE and Drummond by scrubbing invoices of

information

indicating

his

involvement,

at

Drummond’s behest and with Gilbert’s approval.

Roberson, who headed the AJE and controlled its

bank account, did not disclose to its members that

their fees were being used to pay the Representative

for his services.

The nature and timing of the payments, the

secret recording of meetings, the routing of these

payments through a charitable foundation, the

nondisclosure of the payments to AJE members, and

the failure of the parties to inform the EPA or other

agencies of their financial relationship support the

inference that the payments were made with a corrupt

state of mind. See McNair, 605 F.3d at 1197. (“[T]he

20a

extent to which the parties went to conceal their

bribes is powerful evidence of their corrupt intent.”).15

The second element of 18 U.S.C. § 666(a)(2)

requires that the jury find that Representative

Robinson was an agent of Alabama. Appellants argue

that, at most, Representative Robinson was only an

agent of the Alabama Legislature and not the State as

a whole. This argument has been flatly rejected by

both the First and Third Circuits and we reject it here.

See United States v. Fernandez, 722 F.3d 1, 9 (1st Cir.

2013) (finding that the Puerto Rico Senate is a

constituent part of the Puerto Rican government and

that its “members are thus part of the limited category

of government officials who represent the ‘State’ as a

whole”); United States v. Willis, 844 F.3d 155, 166–67

(3d Cir. 2016) (holding that the President of the Virgin

Islands Legislature was an agent of the government).

15 Appellants are not aided by our opinion in United States v.

McCarrick, 294 F.3d 1286 (11th Cir. 2002). There, the defendant

used a business loan designated for a certain purchase to instead

keep his business afloat and was subsequently charged with

bank fraud. Id. at 1289. We found that the government failed to

prove that the defendant had the specific intent to defraud at the

time he signed the loan documents and that the “evidence

overwhelming contradicts such a conclusion.” Id. at 1293. We

further noted that disbelief of the defendant’s testimony could

not be “the sole basis to support” the conviction. Id. Here, there

was significant documentation and testimony by others involved,

in addition to Gilbert’s testimony. It was reasonable for the jury

to infer that Appellants had the requisite intent in engaging

Representative Robinson to use his position to undermine the

EPA’s efforts. See United States v. Vigil-Montanel, 753 F.2d 996,

999 (11th Cir. 1985) (holding that a “defendant’s intent can be

inferred from his conduct and all the surrounding

circumstances”).

21a

The statute defines agent to mean “a person

authorized to act on behalf of another person or a

government and, in the case of an organization or

government, includes a servant or employee, . . . and

representative.” 18 U.S.C. § 666(d)(1) (emphasis

added). Representative Robinson, as a member of the

House of Representatives, testified that his position

entails voting on the budget for state agencies,

including the ADEM, which is prototypical action on

behalf of the state. See Keen, 676 F.3d at 990

(concluding “that to qualify as an agent of an entity,

an individual need only be authorized to act on behalf

of that entity”). Further, Representative Robinson

might have been in a position to ultimately vote on

approving any funds allocated from the state treasury

to the EPA. See 42 U.S.C. § 9604(c)(3); accord ALA.

CONST. art. IV (delineating the Legislature’s role in

appropriating state treasury funds). Finally, as the

government notes, if a state legislator is not an agent

of the state for purposes of section 666, it is unclear

who would be. By the plain reading of its text,

Representative Robinson is an agent of the State of

Alabama for purposes of 18 U.S.C. § 666(a)(2).16

The third element requires that the jury find

that Roberson and Gilbert intended Representative

Robinson to act “in connection with any business,

16 To the extent Appellants argue that Representative Robinson

can only be an agent for purposes of 18 U.S.C. § 666 insofar as

his conduct affects funds directly within his control as a

legislator, the statute is not so narrow and requires no such

nexus.

22a

transaction, or series of transactions” of the Alabama

government. 18 U.S.C. § 666(a)(2). In order to list a

site on the NPL, the EPA has to consult with the State

impacted. See 42 U.S.C. § 9604(c)(2). During all three

specified acts, whether to expand the 35th Avenue site

and the EPA’s proposal to add the site to the NPL

were pending matters, as indicated by an EPA letter

stating that the EPA did not finish its considered

expansion and NPL assessments until July 14, 2016.17

It was reasonable for the jury to believe that

Representative Robinson went to the EPA and AEMC

meetings with the intention of influencing these

decisions. This is supported not just by Representative

Robinson’s attendance, but also email correspondence

from Gilbert, which states that “[w]e need to discuss

how we can influence ADEM’s position or have

someone in the AG/Governor’s office attend the

meeting as well to make sure ADEM does [not] throw

in the towel[.]” In addition, Representative Robinson

also testified that Roberson first asked him to discuss

Drummond’s concerns about the EPA with Mayor Bell

and Congresswoman Sewell, which further evinces

that Roberson was hoping to use Representative

Robinson’s position as a legislator to influence

relevant decisionmakers. Although Appellants

attempt to paint the agreement between Balch and

the Oliver Robinson Foundation as some sort of

permissible advocacy campaign, as indicated Gilbert

testified that the Foundation was the only entity

17 At least at the time of the trial, an EPA official testified that

the 35th Avenue site remained on the list of proposed sites to add

to the NPL.

23a

asked to submit a proposal and that Gilbert and the

Balch firm did not do any due diligence on the

Foundation’s ability to do the work. Considering this

and other evidence presented showing that initially it

was Oliver Robinson’s Communication company that

was enlisted, it was reasonable for the jury to find that

the Foundation was enlisted not for its outreach

capacity, but because it gave Drummond and

Roberson, through Balch and Gilbert, access to

Representative Robinson in his position as a

legislator.

Whether Representative Robinson impacted

the ultimate decisions of AEMC or the EPA is

immaterial. Rather, it is enough that Roberson and

Gilbert intended Representative Robinson to act “in

connection with any business” of the State of

Alabama. 18 U.S.C. § 666(a)(2). Finally, although

Appellants are correct that Representative Robinson

voted on SJR-97 several months after entering into

the contract, Gilbert’s timesheets demonstrate that he

worked on drafting this resolution that he hoped

would “influence the whole state” the same day he met

with Representative Robinson regarding “community

outreach” and the same day that Representative

Robinson submitted an invoice to Balch for

“community involvement.” It was not unreasonable

for the jury to find that Representative Robinson was

effectively on retainer and voted on the resolution

given the continued payments by Balch. Accordingly,

the evidence was sufficient for the jury to find that

Gilbert and Roberson paid Representative Robinson

intending to influence him “in connection with any

24a

business, transaction, or series of transactions” of the

state government. See 18 U.S.C. § 666(a)(2).

Finally, Roberson’s argument that a bribery

conviction requires a specific act following McCormick

and Siegelman fails. Those cases involved First

Amendment concerns not at issue here, namely

campaign donations. See McCormick, 500 U.S. at 273,

111 S.Ct. 1807 (Hobbs Act imposes liability only when

campaign contributions are “made in return for an

explicit promise or undertaking by the official to

perform or not to perform an official act.”); Siegelman,

640 F.3d at 1169–70 (bribery case involving donations

to Siegelman’s private education lottery campaign).

McCormick and Siegelman stand for the

unremarkable proposition that when a case implicates

First Amendment concerns, an agreement must be

explicit such that “[n]o generalized expectation of

some future favorable action will do.” Siegelman, 640

F.3d at 1171.

Appellants, citing Siegelman, argue that the

court should have instructed the jury about an explicit

quid pro quo agreement because the Appellants were

engaging in protected political speech, as their

“campaign” was also political in nature. The facts of

this case, however, are distinguishable from

Siegelman. The bribe at issue in Siegelman was a

donation to the “Alabama Education Lottery

Foundation” which was formed “to raise money to

campaign for voter approval of a ballot initiative to

establish a state lottery.” Id. at 1165. The entire

purpose of the organization was for a specific and

25a

organized political campaign on a narrow issue. Here,

while the contract was with a charitable organization

with an educational focus, the money paid was not a

“donation,” and it was not for the sole purpose of the

organization. The alleged bribe here was a contract

with an organization to purportedly perform

community grassroots organization of a political

nature different from what the organization typically

did. Thus, these actions do not fall within the sort of

political “campaign” that we were concerned with in

Siegelman.

Further, although Siegelman involved section

666, it did not explicitly extend McCormick’s express

quid pro quo requirement to all convictions made

under section 666. See id. at 1172 (assuming but not

deciding in determining whether an error was

reversible, that a quid pro quo instruction was

required to convict under section 666). Moreover,

although McDonnell specified that the “question or

matter” to be influenced must be identified, that case

did not reject the retainer theory of bribery. See 136

S. Ct. at 2369–70; see also United States v. Silver, 948

F.3d 538, 552–55 (2d Cir. 2020) (noting that

McDonnell did not invalidate the “as the opportunities

arise” theory of bribery). Thus, the retainer theory of

liability is still a valid basis of conviction under section

666 in this type of case.

In instructing the jury on honest services wire

fraud, the district court defined the charge with

reference to 18 U.S.C. § 201. No party challenges the

26a

instruction based on its reference to section 201.18

That statute criminalizes the bribery of public officials

with “intent . . . to influence any official act[.]” 18

U.S.C. § 201(b)(1)(A). There was sufficient evidence

for the jury to find that an official act had occurred.

Whether or not Representative Robinson’s

actions in regard to the EPA and AEMC meetings are

“official acts” under the standard set forth in

McDonnell,19 his vote on SJR-97 is undeniably an

official act as it involves “a formal exercise of

governmental power that is similar in nature to a

lawsuit before a court, a determination before an

agency, or a hearing before a committee.” McDonnell,

136 S. Ct. at 2372. Appellants do not meaningfully

argue that the SJR-97 vote was not an official act.

Instead they argue that (1) there is no evidence that

18 Because the parties do not dispute this point, the court does

not decide whether an “official act” as defined in 18 U.S.C. § 201

is required to sustain an honest services wire fraud conviction

premised on section 666.

19 Given the jury instructions and facts that were established, the

jury could properly find these to be “official acts.” McDonnell

notes that an official act “may include using [an] official position

to exert pressure on another official to perform an ‘official act,’ or

to advise another official, knowing or intending that such advice

will form the basis for an ‘official act’ by another official.”

McDonnell, 136 S. Ct. at 2372. Although attending a meeting

without more is not enough, there is sufficient evidence for the

jury to find that Robinson attended the AEMC and EPA meetings

intending and attempting to use his position as legislator to

influence their decisions related to the 35th Avenue site,

particularly as the Alabama legislature would have to ultimately

approve the ten percent funding contribution required to list a

site on the NPL.

27a

Appellants bribed Representative Robinson to vote on

the resolution, (2) Representative Robinson did not

vote on the SJR-97, or (3) a single “official act, coupled

with non-official acts and inadequate instructions,

requires a new trial.”20

Taking each of these three arguments in turn,

first, as noted above, the government put on sufficient

evidence under the “retainer” theory of liability for the

jury to find that the Appellants had bribed

Representative Robinson to vote on the resolution.

McDonnell confirmed that an “agreement need not be

explicit,” and that it is enough that “the public official

received a thing of value knowing that it was given

with the expectation that the official would perform

an ‘official act’ in return.” 136 S. Ct. at 2371. The

second argument is easily disposed of as

Representative Robinson admitted that he voted on

the resolution in a voice vote. Although

Representative Robinson had previously told

investigators that he had not voted on the resolution,

it was reasonable for the jury to find that his later

statement was the truth. Finally, the third argument

fails because “[a] conviction must be affirmed unless

there is no reasonable construction of the evidence

from which the jury could have found the defendant

guilty beyond a reasonable doubt.” United States v.

Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012)

(citation omitted).

II.

Jury Instructions

20 As indicated infra Part II, the jury instructions were adequate.

28a

Roberson and Gilbert argue that the district

court erroneously instructed the jury.21 First,

Roberson argues that the district court should have

instructed the jury that a federal bribery conviction

required an “official act” and, accordingly, that

Representative Robinson “expressing support” for a

policy was insufficient under 18 U.S.C. § 666(a)(2).

Gilbert further contends that the district court was

required to supply the jury with a technical definition

of when “advice” rises to the level of official action.

Second, Roberson argues that the court was required

to instruct the jury that a conviction required an

“explicit” corrupt agreement, in order to avoid

potential First Amendment complications. Finally,

Gilbert argues that the district court constructively

amended the indictment by instructing the jury on the

“retainer” theory, requiring a new trial.

As noted above, the district court was not

required to give an instruction on an “official act” at

least as to the section 666 bribery count. As we have

already concluded that the First Amendment cases

are not implicated here, we do not further address

Roberson’s argument that the jury instructions should

have required an “explicit” or more specific agreement

to avoid such First Amendment concerns. To the

extent “official acts” are referenced with respect to the

honest services counts, no further instructions

The jury was instructed on conspiracy and a variety of

underlying substantive crimes. Only the bribery and honest

services instructions are challenged.

21

29a

regarding the difference between

“expressing support” are necessary.

“advice”

or

In assessing whether the district court erred in

refusing a jury instruction requested by a defendant

the court considers whether the requested instruction

“(1) is correct, (2) is not substantially covered by other

instructions which were delivered, and (3) deals with

some point in the trial so ‘vital’ that the failure to give

the requested instruction seriously impaired the

defendant’s ability to defend.” United States v.

Opdahl, 930 F.2d 1530, 1533 (11th Cir. 1991) (quoting

United States v. Lively, 803 F.2d 1124, 1125–26 (11th

Cir. 1986)). The Appellants’ requested jury instruction

regarding what an official act excludes read as follows:

Not everything that a public official does

in his official capacity is an “official act.”

Under the law, certain actions by public

officials are not considered official acts,

even if those acts are performed in an

official capacity.

For example, the following are not,

without more, official acts: meeting with

other officials, speaking with interested

parties, or expressing support for (or

opposition to) a policy or course of action;

setting up a meeting or talking to

another official; giving a speech; lobbying

government agencies or advocating for

constituents; taking a public position on

30a

an issue; or sending a letter on official

stationery.

This may come as a surprise to you, and

you may even feel uncomfortable with

the idea that someone can give a public

official something of value in exchange

for these types of assistance–but, under

the law, doing so is not a federal crime.

The relevant portion of the jury instruction

given was:

The public official’s action or decision or

agreement to make a decision or take an

action on that question, matter, cause,

suit, proceeding, or controversy may

include using his official position to exert

pressure on another official to perform

an official act or to advise another

official, knowing or intending that such

advice will form the basis for an official

act by another official.

But setting up a meeting, talking to

another official, or organizing an event or

agreeing to do so without more is not an

official act. When considering whether a

public official exerted pressure or gave

advice, you must consider what the

public official actually did, not simply

what his title or position was.

31a

Appellants contend that the court should have

specified that “expressing support” without more is

insufficient to sustain a bribery conviction and that

the court was required to instruct the jury on this

distinction between advising and merely expressing

support. McDonnell states that “setting up a meeting,

hosting an event or calling an official (or agreeing to

do so) merely to talk . . . or to gather additional

information,” or “expressing support” is not

necessarily enough to show that a public official

committed an official act or was providing advice or

exerting pressure on another official to take an official

act. 136 S. Ct. at 2371. The Court goes on to say,

however, that if an official takes such action

on a question or matter that is or could

be pending before another official, that

[action] could serve as evidence of an

agreement to take an official act. A jury

could conclude, for example, that the

official was attempting to pressure or

advise another official on a pending

matter. And if the official agreed to exert

that pressure or give that advice in

exchange for a thing of value, that would

be illegal.

Id. Notably, in later describing the standard the Court

states that “[s]etting up a meeting, talking to another

official, or organizing an event (or agreeing to do so)—

without more—does not fit that definition of ‘official

act.’” Id. at 2372. Although the Appellants’ proposed

jury instruction is not incorrect that expressing

32a

support alone is not necessarily enough to sustain a

bribery conviction “without more,” the proposed

instruction is vague as to what “without more” means

in this context. What McDonnell makes clear is if an

official attempts to “pressure or advise another official

on a pending matter” the crucial “more” exists. Id. at

2371. Read as a whole, the proposed jury instruction

is incomplete or misleading if not legally incorrect.

But even if it might have behooved the district

court to alter the standard language offered in

McDonnell to include “expressing support” in its list

of acts that do not necessarily rise to an official act,

the remainder of the instruction sufficiently covered

the issue. First, the instruction pulled language

directly from McDonnell detailing what types of

conduct are insufficient to constitute an official act

such as “setting up a meeting, talking to another

official, or organizing an event or agreeing to do so

without more[.]” This list makes clear that not all

conduct by an official that could in some way influence

another official could properly sustain a bribery

conviction. Further, the court urged the jury to

“consider what the public official actually did, not

simply what his title or position was.” This

qualification further highlights that not everything an

official does or says can sustain the charge. Finally,

the court noted that the official either needed to take

official action himself or use his official position to

“exert pressure on another official” or “advise another

33a

official,22 knowing or intending that such advice will

form the basis for an official act by another official.”

Although the line between expressing support and

advising may be opaque, by adding the qualifying

language “knowing or intending that such advice will

form the basis for an official act by another official[,]”

the instruction made clear that any advice rendered

must have been intended to alter the other official’s

conduct, not merely to express support. Thus,

although the phrase “expressing support” was not

included in the final instruction, the final jury

instruction substantially covered the issue.

Finally, the instruction was not “so ‘vital’ that

the failure to give the requested instruction seriously

impaired the defendant’s ability to defend.” Opdahl,

930 F.2d at 1533 (quoting Lively, 803 F.2d at 1125–

26). Even if the jury could have reasonably understood

Robinson’s attendance at the EPA or AEMC meeting

to be simply an expression of support for a position, it

22 Appellants rely on United States v. Birdsall, 233 U.S. 223, 34

S.Ct. 512, 58 L.Ed. 930 (1914), which formed the basis for

McDonnell’s “advise or pressure” type of official act, see

McDonnell, 136 S. Ct. at 2371–72, to argue that the advice must

come from someone in a more formal advisory role. Birdsall was

a bribery case where the government officials being bribed were

subordinate employees to a commissioner and accepted bribes to

change their reports and recommendations to that commissioner,

who would in turn advise the President on an official action. See

233 U.S. at 234–36, 34 S.Ct. 512. Thus, the subject of the bribe,

the official act in that case, was a formal recommendation of

action. See id. We, like the Sixth Circuit, cannot find any phrase

in McDonnell which supports the very narrow view of “advise” or

“pressure” advocated by Appellants. See United States v. Lee,

919 F.3d 340, 352–53 (6th Cir. 2019).

34a

strains credulity that Robinson’s SJR-97 vote could be

understood as merely an expression of support for a

course of action rather than an explicit attempt to use

his legislative authority to alter the course of the

EPA’s or ADEM’s official conduct. A finding that a

legislative resolution urging the EPA to reconsider its

conduct and ADEM to “combat the EPA’s overreach”

by taking “any and all steps within their power” to

address the EPA’s actions is simply expressing

support obliterates the line between pressuring or

advising and expressing support. No reasonable jury

could have found that the vote on SJR-97 was merely

expressing support and thus the requested language

was not vital, and the district court did not abuse its

discretion.

The remaining jury instruction issue is whether

the instructions constructively amended the

indictment. Jury instructions constructively amend

an indictment “when the essential elements of the

offense contained in the indictment are altered to

broaden the possible bases for conviction beyond what

is contained in the indictment.” United States v.

Madden, 733 F.3d 1314, 1318 (11th Cir. 2013)

(internal quotation and citation omitted). The

government points to several paragraphs in the

indictment that support a retainer theory of liability,

which each count incorporates by reference.23 Thus,

The government references multiple paragraphs in the

Indictment, specifically ¶ 14 (“As part of the overall strategy,

Balch & Bingham paid Representative Oliver L. Robinson, Jr.,

through a valuable consulting contract with the Oliver Robinson

Foundation to, among other things, take official action favorable

23

35a

the language in the indictment provided sufficient

notice to Appellants that the government was

pursuing a retainer theory of liability.

The jury instructions state that Appellants

could be found guilty if they “gave a thing of value to

the Oliver Robinson Foundation with the intent to

retain the services of Oliver Robinson on an as-needed

basis so that Oliver Robinson would take actions as

specific opportunities arose in his role as an agent of

the State of Alabama[.]” This instruction does not

broaden the possible basis of conviction beyond what

was alleged in the indictment, but simply clarifies the

law. Cf. United States v. Elbeblawy, 899 F.3d 925,

938 (11th Cir. 2018) (noting that “the slightly different

wording of the jury instruction” in a fraud prosecution

“did not amount to a constructive amendment of the

indictment”). The facts relating to the applicable legal

standard were repeated multiple times in the course

to Balch & Bingham’s and Drummond Company’s interests in

matters related to EPA’s actions in north Birmingham”), ¶ 18

(Appellants “would and did agree that the Oliver Robinson

Foundation would be given a valuable consulting contract and

monthly payments in exchange for, among other things,

favorable official action by Representative Robinson in relation

to the environmental issues in north Birmingham.”), ¶ 19

(Appellants offered a “lucrative contract and monthly payments

between Balch & Bingham and the Oliver Robinson Foundation

to corruptly influence and reward Representative Oliver L.

Robinson, Jr., in connection with the use of his position as a

member of the Alabama House of Representatives”), and ¶ 21

(Representative Robinson agreed to “use his official position to

pressure and advise other public officials, consistent with the

position of Balch & Bingham and Drummond Company, to

oppose EPA’s actions in north Birmingham.”).

36a

of setting forth the law in the indictment and the

judge’s slightly different wording of the facts does not

amount to constructive amendment.

III.

Refusal to Sever Trial or Grant a Mistrial

Roberson also argues that the district court

should have severed the trial pursuant to Federal

Rule of Criminal Procedure 14(a), and failure to do so

led to events requiring a new trial. Roberson states

that because of joinder he was unable to properly

present a reliance on the advice-of-counsel defense.24

Roberson argues that certain evidence was excluded

at trial because it inculpated Gilbert, even though

that evidence supported Roberson’s defense that he

relied on counsel, Gilbert, in believing his actions were

legal. Specifically, the trial court excluded a portion of

an FBI agent’s written summary of Roberson’s

interview with the FBI in which Roberson states that

he had checked with Gilbert to ensure “there was no

problem with what they were doing.” The full passage

at issue, with the portions excluded at trial

underlined, states:

After the Hubbard trial,25 Roberson

considered what they were doing, i.e.,

The National Association of Criminal Defense Lawyers

(“NACDL”), appearing as amicus curiae, filed a brief supporting

severance. See Br. of the Nat’l. Ass’n. of Criminal Defense

Lawyers as Amicus Curiae in Supp. of Def.-Appellant David

Lynn Roberson, Supporting Reversal (Mar. 21, 2019).

24

25 In 2016, Mike Hubbard, the former Speaker of the Alabama

House of Representatives, was tried and convicted of ethics

37a

contracting with a state representative,

in light of the ethics law but determined

that the area targeted by the campaign

was not in Robinson’s district. Roberson

stated that they (Drummond) have

always been very careful, and he

(Roberson) has a reputation to maintain.

Roberson had a conversation with

Gilbert about ethics considerations.

Roberson wanted to know if it was a

problem for him (Roberson) to be

associated with the effort because he was

a lobbyist. Gilbert later told Roberson

that he checked with Greg Butrus and

Chad Pilcher at Balch, and there was no

problem with what they were doing.

Roberson argues that pursuant to the rule of

completeness, but for the fact that Gilbert was his codefendant,26 the omitted passage would have been

read into evidence. See FED. R. EVID. 106. Roberson

claims this exculpatory evidence was critically

important to his advice-of-counsel defense. Roberson

also argues that the exclusion of portions of the FBI

violations unrelated to this case. See Brian Lyman, Mike

Hubbard Sentencing Hearing Set to Begin, MONTGOMERY

ADVERTISER, July 8, 2016.

26 The Confrontation Clause prohibits the admission of a non-

testifying defendant’s confession if that confession directly

inculpates another defendant. See Bruton v. United States, 391

U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The district

court redacted the portions of the FBI’s Roberson interview at

issue pursuant to Bruton.

38a

interview distorted the meaning conveyed by the

admitted portions and rejects that any other evidence

presented at trial was curative of this omission as the

government undermined that evidence in its closing,

when “[i]n its final arguments to the jury, the

Government dismissed [the relevance of] that 2014

meeting because ‘[i]t was Mike Tracy, the CEO of

Drummond,’ who asked Gilbert for advice: ‘[i]t wasn’t

David Roberson.’”

Although Roberson raised the motion to sever

early in the district court’s proceedings, we focus first

on the district court’s later denial of a motion for a new

trial because if the district court was correct in

denying the motion for a new trial then “its earlier

rulings not to sever–when it had even less evidence of

potential prejudice before it–were necessarily correct.”

Blankenship, 382 F.3d at 1121–22. In evaluating

whether a motion for a new trial should have been

granted, first the court must assess whether there is

a risk of prejudice. See Zafiro v. United States, 506

U.S. 534, 538–40, 113 S.Ct. 933, 122 L.Ed.2d 317

(1993). Next the court must ascertain whether

severance was the necessary remedy, as “[t]here are

only two circumstances in which severance is the only

permissible remedy[;]” (1) when “there is a serious

risk that a joint trial would compromise a specific trial

right of one of the defendants,” or (2) to “prevent the

jury from making a reliable judgment about guilt or

innocence.”

Blankenship, 382 F.3d at 1122–23

(quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). Here,

Roberson’s central argument is that he was denied his

39a

constitutional right to present a complete defense.27

See U.S. CONST. amend. VI.

Amicus NACDL urges the court to exercise

caution when considering trying attorneys and their

clients jointly, averring that severance is often the

only way to avoid a severe risk of prejudice. For

support, it cites United States v. Walters, 913 F.2d

388, 393 (7th Cir. 1990). Walters involved the joint

trial of two business partners involved in a college

football recruitment and representation scheme. See

913 F.2d at 389–90. One of the partners, Walters,

wished to pursue an advice-of-counsel defense

whereas the other, Bloom, did not. See id. at 392–93.

The district court refused to sever the trial and

subsequently Walters called their joint attorney to

testify, forcing Bloom to waive his attorney-client

privilege and “skittle along behind [the defense] of

Walters.” Id. at 393. Whatever force Walters has, it

does not counsel so broad a rule favoring severance

that it would apply here. In this case, Roberson was

not only prepared to waive his attorney-client

privilege, but his motion for severance was in part

predicated on ensuring that Gilbert testified as to the

legal advice he gave Roberson. Given the possibility

that Gilbert might invoke his Fifth Amendment right

against self-incrimination, Roberson argued that

severing the trial was required to secure Gilbert’s

testimony.

27 As the jury instructions noted, “[e]vidence that a defendant in

good faith followed the advice of counsel would be inconsistent

with the unlawful intent required for each charge in this case.”

40a

Instead

Gilbert

and

others

testified

consistently with Roberson’s advice-of-counsel

defense.28 The only evidence Roberson claims he was

prevented from introducing at trial were the redacted

portions of the FBI report. Although this evidence

lends additional support to Roberson’s advice-ofcounsel defense, its exclusion is not misleading with

respect to the portion that was admitted, given the

other evidence presented, and essentially was

cumulative. Additionally, Roberson’s statements to

the FBI are of little probative value in comparison to

the other evidence on point considering their selfserving nature, that they were made after the conduct

at issue took place, and given that they do not clearly

demonstrate that Roberson asked about the legality of

his actions before the conduct had occurred. See

Browne, 505 F.3d at 1270 (“If the testimony is purely

cumulative, or of negligible weight or probative value,

the court is not required to sever.”) (citation omitted);

see also United States v. Novaton, 271 F.3d 968, 990

(11th Cir. 2001) (holding that “statements concerning

the testimony that would become available by

severing trials must be specific and exonerative,

rather than conclusory or self-serving, in order to

28 In particular, James Tracy, the CEO of Drummond Company,

stated that Gilbert told him that the arrangement with

Representative Robinson was legal, during a meeting in which

Roberson was present. That the government downplayed the

relationship to Roberson during its closing is of no moment. The

jury was free to evaluate the testimony. Additionally, Gilbert

stated during cross-examination that he assured both Tracy and

Roberson that everything was legal and ethical.

41a

justify severance”). In sum, the exclusion was not so

prejudicial as to compromise Roberson’s ability to

present his defense or deny him a fair trial. See

Novaton, 271 F.3d at 989 (citation omitted) (requiring

an appellant to show “compelling prejudice” for a court

to find an abuse of discretion in the district court’s

refusal to sever); cf. United States v. Cobb, 185 F.3d

1193, 1197–98 (11th Cir. 1999) (holding that it was an

abuse of discretion to deny severance in a case where

a joint trial prevented the admittance of exculpatory

testimony evidence that contradicted the sole

evidence against the defendant seeking severance).

Thus, the district court’s decisions not to sever the

cases for trial or subsequently grant a mistrial were

not abuses of discretion.

CONCLUSION

For the reasons stated above, we affirm the

convictions of Gilbert and Roberson. AFFIRMED.

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APPENDIX B

Date Filed 08/12/2021

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 18-14654-JJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LYNN ROBERSON,

JOEL IVERSON GILBERT,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of Alabama

ON PETITION(S) FOR REHEARING

PETITION(S) FOR REHEARING EN BANC

AND

BEFORE: WILSON and BRANCH, Circuit Judges,

Restani,1 Judge.

PER CURIAM:

The Honorable Jane A. Restani, United States Judge, U.S.

Court of International Trade, sitting by designation.

1

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The Petitions for Rehearing En Banc are DENIED, no

judge in regular active service on the Court having

requested that the Court be polled on rehearing en

banc. (FRAP 35) The Petitions for Panel Rehearing

are also denied. (FRAP 40)

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APPENDIX C

18 U.S.C. § 666

Theft or bribery concerning programs

receiving Federal funds.

(a)

Whoever, if the circumstance described in

subsection (b) of this section exists—

(1)

being an agent of an organization, or of a

State, local, or Indian tribal government, or any

agency thereof—

(A)

embezzles, steals, obtains by

fraud, or otherwise without authority

knowingly converts to the use of any

person other than the rightful owner or

intentionally misapplies, property that—

(i)

is valued at $5,000 or more,

and

(ii)

is owned by, or is under the

care, custody, or control of such

organization, government, or

agency; or

(B)

corruptly solicits or demands for

the benefit of any person, or accepts or

agrees to accept, anything of value from

any person, intending to be influenced or

rewarded in connection with any

business, transaction, or series of

transactions of such organization,

government, or agency involving any

thing of value of $5,000 or more; or

45a

(2)

corruptly gives, offers, or agrees to give

anything of value to any person, with intent to

influence or reward an agent of an organization

or of a State, local or Indian tribal government,

or any agency thereof, in connection with any

business, transaction, or series of transactions

of such organization, government, or agency

involving anything of value of $5,000 or more;

shall be fined under this title, imprisoned not more

than 10 years, or both.

(b)

The circumstance referred to in subsection (a)

of this section is that the organization, government, or

agency receives, in any one 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.

(c)

This section does not apply to bona fide salary,

wages, fees, or other compensation paid, or expenses

paid or reimbursed, in the usual course of business.

(d)

As used in this section—

(1)

the term “agent” means a person

authorized to act on behalf of another person or

a government and, in the case of an

organization or government, includes a servant

or employee, and a partner, director, officer,

manager, and representative;

(2)

the term “government agency” means a

subdivision of the executive, legislative,

judicial, or other branch of government,

including

a

department,

independent

establishment, commission, administration,

authority, board, and bureau, and a corporation

46a

or other legal entity established, and subject to

control, by a government or governments for

the execution of a governmental or

intergovernmental program;

(3)

the term “local” means of or pertaining to

a political subdivision within a State;

(4)

the term “State” includes a State of the

United States, the District of Columbia, and

any commonwealth, territory, or possession of

the United States; and

(5)

the term “in any one-year period” means

a continuous period that commences no earlier

than twelve months before the commission of

the offense or that ends no later than twelve

months after the commission of the offense.

Such period may include time both before and

after the commission of the offense.

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18 U.S.C. § 1343

Fraud by wire, radio, or television.

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money

or property by means of false or fraudulent pretenses,

representations, or promises, transmits or causes to

be transmitted by means of wire, radio, or television

communication in interstate or foreign commerce, any

writings, signs, signals, pictures, or sounds for the

purpose of executing such scheme or artifice, shall be

fined under this title or imprisoned not more than 20

years, or both. If the violation occurs in relation to, or

involving any benefit authorized, transported,

transmitted, transferred, disbursed, or paid in

connection with, a presidentially declared major

disaster or emergency (as those terms are defined in

section 102 of the Robert T. Stafford Disaster Relief

and Emergency Assistance Act (42 U.S.C. 5122)), or

affects a financial institution, such person shall be

fined not more than $1,000,000 or imprisoned not

more than 30 years, or both.

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18 U.S.C. § 1346

Definition of “scheme or artifice to defraud.”

For the purposes of this chapter, the term “scheme or

artifice to defraud” includes a scheme or artifice to

deprive another of the intangible right of honest

services.