U.S. v. Us Infrastructure, Inc.

• Decision Date: 29 July 2009
• Docket Number: No. 07-14648.,07-14648.
• Citation: 576 F.3d 1195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. US INFRASTRUCTURE, INC., Edward T. Key, Jr., Sohan P. Singh, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

576 F.3d 1195

UNITED STATES of America, Plaintiff-Appellee, v. US INFRASTRUCTURE, INC., Edward T. Key, Jr., Sohan P. Singh, Defendants-Appellants.

No. 07-14648.

United States Court of Appeals, Eleventh Circuit.

July 29, 2009.

Anthony Aaron Joseph, Maynard Cooper & Gale, PC, Roger A. Brown and Bob Kirpalani, Haskell Slaughter Young & Rediker, LLC, Birmingham, AL, for Defendants-Appellants.

John P. Fonte and John J. Powers, III, U.S. Dept. of Justice, Appellate Sec., Washington, DC, for Plaintiff-Appellee.

Appeals from the United States District Court for the Northern District of Alabama.

Before TJOFLAT and EDMONDSON, Circuit Judges, and RYSKAMP,^* District Judge.

RYSKAMP, District Judge:

Appellants, a corporation and two of its officers, seek review of their convictions of various bribery charges. The government charged that appellants bribed certain officials of Jefferson County, Alabama in return for government contracts. The jury found appellants guilty on all charges. We have reviewed the lengthy record and find no reversible error.

I. BACKGROUND

In 1996, after a Clean Water Act lawsuit alleging that untreated waste illegally entered the area's rivers and streams, Jefferson County ("County") entered into a consent decree requiring the County to repair and rehabilitate its sewers and wastewater treatment plants. The cost of the rehabilitation amounted to nearly $3 billion.

The consent decree process required the County to hire engineering firms through no-bid contracts. The Jefferson County Environmental Services Department ("JCESD") supervised the process of rehabilitating the sewer and treatment plants. County Commissioner Jewell "Chris" McNair ("McNair") oversaw the operation of the JCESD, which included JCESD Director Jack Swann ("Swann"), Assistant Director Harry Chandler ("Chandler"), and Chairman, Product Review Committee Donald Ellis ("Ellis"). McNair supervised the JCESD from 1988 until his March 29, 2001 retirement.

McNair decided which engineering firms to hire for the project and selected U.S. Infrastructure, Inc. ("USI") as the primary design firm. USI was awarded over $50 million in contracts during the sewer rehabilitation project.

Sohan Singh ("Singh") founded USI in 1994 and remains its President and principal owner. Edward T. Key, Jr. ("Key") is Vice President of USI.

McNair owned and operated the Chris McNair Studio and Art Gallery ("McNair Studio"), which, as explained by his daughter Kim McNair Brock ("Brock"), was "a family business where we do photography, custom framing. And after a period of time, we had an art gallery and banquet facility." The McNair Studio was a private enterprise unrelated to McNair's position with the County.

On August 29, 2005, a federal grand jury sitting in Birmingham, Alabama returned a 127 Count Second Superseding Indictment that, inter alia, charged USI, Singh and Key with conspiring to commit bribery by paying McNair approximately $140,000 for work not actually performed by McNair (18 U.S.C. § 371) (Count 32), bribing McNair by giving him checks for that bogus work (18 U.S.C. § 666) (Counts 38-45, 47-49), conspiring to commit bribery by giving McNair approximately $335,000 in cash drawn from USI funds (18 U.S.C. § 371) (Count 50), bribing Chandler with a $2,000 gift card to Parisian's Department Store (18 U.S.C. § 666) (Count 73) and an envelope containing $1,500 in cash (18 U.S.C. § 666) (Count 74), and obstructing justice by intentionally withholding documents from the grand jury and providing a false letter of compliance with the grand jury's subpoena (18 U.S.C. § 1503) (Count 127). The Indictment also charged Key and USI with bribing Ellis with an envelope containing $500 in cash (18 U.S.C. § 666) (Count 88). The district court severed the Indictment into five separate trials, of which this trial was one. The jury found appellants guilty on all counts.¹

II. DISCUSSION

A. Sufficiency of the Evidence

Appellants attack the sufficiency of the evidence as to the bogus invoice scheme and the cash bribes conspiracy. Appellants also claim that the government failed to prove that appellants possessed corrupt intent.

1. Standard of Review

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. United States v. Suba, 132 F.3d 662, 671 (11th Cir.1998). This Circuit "will not overturn a conviction on the ground 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) (quoting United States v. Christo, 129 F.3d 578, 579 (11th Cir.1997)). The evidence need not be inconsistent with every hypothesis other than guilt, "as the jury is free to choose among reasonable constructions of the evidence." Suba, 132 F.3d at 671-72.

2. Bribery of McNair

To sustain the conspiracy convictions, the Government must prove the existence of an agreement to achieve an unlawful objective, here, exchanging things of value for McNair's influence; the defendant's knowing and voluntary participation in the conspiracy; and an overt act in furtherance of the conspiracy. Suba, 132 F.3d at 672. Since illegal conspiracies are secretive by nature, the existence of the agreement and the defendant's participation in the conspiracy may be proven entirely from circumstantial evidence. Id.; accord United States v. Massey, 89 F.3d 1433, 1438-39 (11th Cir.1996) (conspiracy to commit bribery). "To hold otherwise `would allow [defendants] to escape liability ... with winks and nods, even when the evidence as a whole proves that there has been a meeting of the minds to exchange official action for money.'" Massey, 89 F.3d at 1439 (quotation omitted). The meeting of the minds is provable through inferences drawn from the participants' conduct or other circumstantial evidence of the scheme. United States v. Obregon, 893 F.2d 1307, 1311 (11th Cir.1990).

To sustain the bribery convictions, the government must prove that appellants paid the bogus McNair Studio invoices with the corrupt intent to influence or reward McNair. United States v. Castro, 89 F.3d 1443, 1454 (11th Cir.1996).

Several McNair Studio employees testified that the Studio did not and could not have created the materials for which USI was billed. The evidence demonstrating the materials McNair Studio supposedly created for USI include checks by which USI paid McNair Studio, each one signed by Singh; McNair Studio invoices to USI that correspond to the checks; USI's copies of the McNair Studio invoices; and the actual materials McNair Studio supposedly created and billed to USI. Brock worked at the Studio from 1993 through 2001, where she handled McNair's checking account and the Studio's cash receipts. For each invoice Brock prepared for USI, she received, either from McNair or by fax from USI, a USI "worksheet" containing purchase order numbers and billing information. Brock testified that without the worksheets, she would have had no idea what to put on the invoices. Brock would prepare an invoice, tell her father when the invoice was finished, and then she or her sister would fax or send the invoice to USI. For every invoice shown to her at trial, Brock was unaware of any work that McNair Studio performed to earn the payments that USI made pursuant to the invoices. The amount of the bogus invoices totaled nearly $140,000. In 1999 to 2000, McNair built an addition that more than doubled the studio's size. Brock was "sure that [McNair] couldn't afford it, or, you know, how is he going to do something on a large scale like that," and told McNair so.

Shenita Hatcher ("Hatcher"), the McNair Studio graphic designer, did not create and never saw the materials supposedly created for USI. She never created any documents while at McNair Studio that even resembled those exhibits. She was unaware of anything at McNair Studio that resembled the binders that contained the purported projects for USI. She also explained that McNair Studio did not have the lamination machine necessary to create such binders.

Several USI employees testified that USI actually created the materials. Angela Wilson ("Wilson") explained that she or other USI employees created a series of presentations, proposals and statements of qualifications contained in the exhibits. The text for these documents came from USI files, and the materials for the documents were available at USI. USI purchased a laminating machine in 1999. Wilson did the binding and laminating herself. Wilson prepared the documents at Key's request and did not talk to or work with McNair Studio in creating any of the documents.

Mary Duffy ("Duffy"), another USI employee, identified a $12,595 invoice from McNair Studio for "Marketing and proposal services for Atlanta proposal," but explained that USI prepared the proposal by using a Kinko's copy service. She acknowledged that the McNair Studio invoice described work that USI itself performed.

Rosherren Williams ("Williams"), who worked at USI for several months in 1999, typed a series of letters of interest for Key. The letters were essentially form letters that required little effort to produce. At least one letter that USI prepared after Williams left the company bore Williams's initials as the typist.

The record is devoid of any evidence that McNair consulted with USI in any of the projects. Significantly, the Jefferson County contracts awarded to USI during the relevant time strictly prohibited USI from hiring McNair, or any other County employee, in any capacity.

USI gave McNair Studio's invoices special attention. From 1999 to the middle of 2000, USI paid its vendors weekly, and, after the middle of 2000, paid them bi-weekly. In contrast, USI typically paid McNair Studio either that day or the day after USI received...