605 F.3d 1152 (11th Cir. 2010), 07-11476, United States v. McNair

Docket Nº:07-11476, 07-11644, 08-10428 and 08-10433.
Citation:605 F.3d 1152
Opinion Judge:HULL, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jewell C.
Attorney:J. Stephen Salter, Birmingham, AL, William N. Clark, Gerald L. Miller, Keith Edward Brashier, Glory R. McLaughlin, Redden, Mills & Clark, LLP, Terry W. Gloor, Gloor & Strickland, LLP, O. Douglas Jones, Anil Ashok Mujumdar, Haskell, Slaughter, Young, Rediker, LLC, Joyce White Vance, U.S. Atty., Bi...
Judge Panel:Before CARNES, HULL and ANDERSON, Circuit Judges.
Case Date:May 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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605 F.3d 1152 (11th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

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.

Nos. 07-11476, 07-11644, 08-10428 and 08-10433.

United States Court of Appeals, Eleventh Circuit

May 12, 2010

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J. Stephen Salter, Birmingham, AL, William N. Clark, Gerald L. Miller, Keith Edward Brashier, Glory R. McLaughlin, Redden, Mills & Clark, LLP, Terry W. Gloor, Gloor & Strickland, LLP, O. Douglas Jones, Anil Ashok Mujumdar, Haskell, Slaughter, Young, Rediker, LLC, Joyce White Vance, U.S. Atty., Birmingham, AL, Sam Heldman, The Gardner Firm, Washington, DC, Michael Lawrence Brown, Natalie Cavanaugh Lee, Carrie B. Markham, Robert Parker Hostetter, Kye Gregory Anez Wallace, Alston & Bird, LLP, Janice Singer-Capek, Thompson & Singer, P.A., David H. Flint, Schreeder, Wheeler & Flint, LLP, Atlanta, GA, for Defendants-Appellants.

James J. Fredricks, Andrea Limmer, John J. Powers, III, John P. Fonte, Kristen C. Limarzi, U.S. Dept. of Justice, Washington, DC, for U.S.

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

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

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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 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.

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

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the JCESD in 1999, Wilson formed his own firm, Civil Engineering Design Services, Inc. (" CEDS" ).

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.

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 : U.S. 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.

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.

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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 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 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...

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