U.S.A v. Huff

• Citation: 609 F.3d 1240
• Decision Date: 25 June 2010
• Docket Number: No. 08-16272.,08-16272.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Tommie HUFF, Defendant-Appellant,Steve Deason, Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

609 F.3d 1240

UNITED STATES of America, Plaintiff-Appellee,v.Tommie HUFF, Defendant-Appellant,Steve Deason, Defendant.

No. 08-16272.

United States Court of Appeals, Eleventh Circuit.

June 25, 2010.

COPYRIGHT MATERIAL OMITTED

Laura D. Hogue, Hogue & Hogue, Macon, GA, for Defendants-Appellants.

George R. Christian, Macon, GA, Dean S. Daskal, Columbus, OH, for Plaintiff-Appellee.

Appeals from the United States District Court for the Middle District of Georgia.

Before EDMONDSON, BARKETT and BALDOCK,^* Circuit Judges.

BARKETT, Circuit Judge:

Tommie Huff was convicted of bribery and conspiracy to commit wire fraud and bribery, in violation of 18 U.S.C. §§ 1341, 1343, 201, for his role in a kickback scheme that involved placing fraudulent supply orders for Robins Air Force Base (“RAFB”). He raises three issues on appeal. First, he argues that there is insufficient evidence to permit a reasonable juror to find that the single conspiracy charged in the indictment existed because the government failed to prove any interdependence between him and his co-defendant Steve Deason. Rather, Huff argues that there were multiple independent “hub and spoke” conspiracies. Huff also challenges his sentence, arguing that the district court erred in calculating the amount of loss and the amount of restitution. He contends that the district court should have considered only the value of the kickbacks Huff received when it calculated both figures instead of the value of the kickbacks received by both Huff and his co-conspirator “S.H.”¹

I. CONVICTION

Huff contends that insufficient evidence supported his conviction for conspiracy to defraud because the indictment charged a single conspiracy between Huff and Steve Deason but the government's evidence only supported a finding of multiple “hub-and-spoke” conspiracies, in which S.H. and J.H. formed the hub and he and Deason formed separate spokes. He argues that because there was no interdependence between himself and Deason, there was no “rim” connecting the individual spokes and thus there were multiple independent conspiracies, not the single one that was charged in the indictment.

The applicable standard of review is whether, viewing the evidence in the light most favorable to the government, a reasonable juror could have found the existence of a single conspiracy beyond a reasonable doubt. United States v. Richardson, 532 F.3d 1279, 1284 (11th Cir.2008) cert. denied, --- U.S. ----, 129 S.Ct. 950, 173 L.Ed.2d 146 (Jan. 12, 2009). “In other words, a jury's conclusion that a single conspiracy existed should not be disturbed as long as it is supported by the evidence.” Id.

“To determine whether a jury could reasonably have found that [the] evidence established a single conspiracy beyond a reasonable doubt, [this court] must consider: (1) whether a common goal existed; (2) the nature of the underlying scheme; and (3) the overlap of participants.” Id. (emphasis and quotation marks omitted). “The government must establish interdependence amongst the co-conspirators.” United States v. Seher, 562 F.3d 1344, 1366 (11th Cir.2009). This court has explained that:

The existence of separate transactions does not have to imply separate conspiracies if the co-conspirators acted in concert to further a common goal. Courts typically define the common goal element as broadly as possible, with “common” being defined as “similar” or “substantially the same.” If a defendant's actions facilitated the endeavors of other co-conspirators, or facilitated the venture as a whole, then a single conspiracy is shown. Each co-conspirator thus does not have to be involved in every part of the conspiracy.

Id. (quotations and citations omitted).

A “hub-and-spoke” conspiracy occurs where “a central core of conspirators recruits separate groups of co-conspirators to carry out the various functions of the illegal enterprise.” United States v. Chandler, 388 F.3d 796, 807 (11th Cir.2004) (citing Kotteakos v. United States, 328 U.S. 750, 755, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “The core conspirators move from spoke to spoke, directing the functions of the conspiracy.” Id. Where only one conspirator moves from spoke to spoke, however, the conspiracy is analogous to a “rimless wheel,” with nothing connecting the separate spokes into a single conspiracy. Id. “Thus, where the ‘spokes' of a conspiracy have no knowledge of or connection with any other, dealing independently with the hub conspirator, there is not a single conspiracy, but rather as many conspiracies as there are spokes.” Id. Where “the various spokes are aware of each other and of their common aim,” however, there is a single conspiracy. Seher, 562 F.3d at 1367.

Based upon the record in this case, we believe the government presented sufficient evidence to permit a reasonable juror to conclude that Huff and Deason were involved in a single conspiracy. First, Huff, Deason, J.H., and S.H. shared a common goal and worked in concert to defraud the government for their personal benefit. Huff and Deason abused their position as government credit cardholders by placing fraudulent orders with APC Supply (“APC”) and S&G Supply (“S&G”), both of which were owned by S.H. and J.H. All four individuals personally benefitted from the scheme; J.H. and S.H. would receive cash kickbacks and additional orders while Huff and Deason received cash and merchandise kickbacks.

Second, the nature of the underlying fraudulent scheme was substantially similar because both Huff and Deason placed orders to APC or S&G that they knew would not be filled (or would not be filled in full), paid for the orders with government credit cards, and traveled to APC to pick up their share of the fraudulent gain (in the form of cash or items for their personal use) from J.H. and S.H.

Third, the government presented sufficient evidence to permit a finding of Huff and Deason's overlapping participation (i.e. interdependence) because Huff placed orders for items that Deason picked up from APC's offices even though they worked in separate government offices and the items were destined for delivery to RAFB directly. The jury also could have inferred that Huff and Deason were aware of each other's fraudulent arrangements with S.H. and J.H., APC, and S&G because they (1) had a relationship with each other apart from their transactions with S.H. and J.H., as they were good friends and fishing buddies; (2) visited S.H. and J.H., who orchestrated this scheme, together; (3) used their government credit cards to defraud the government for their personal benefit through APC or S&G over the course of the same two-year time period; (4) visited APC during the day and ate lunch there at APC's expense during that same period; and (5) were treated to a hunting trip together at APC's expense (also during that same period), which constituted a bribe for their continued participation in the fraudulent scheme. The evidence presented was sufficient to permit a reasonable juror to infer that Deason and Huff were aware of the scope of the J.H. and S.H.'s scheme to defraud and that each took almost identical actions that not only furthered the scheme as a whole but were interdependent.

Accordingly, the evidence was sufficient to establish a single conspiracy in this case, and there was no material variance between the indictment and the evidence presented at trial.²

II. SENTENCE

A. Offense Level: Calculation of Loss Amount

Huff argues that the district court erred in determining the loss amount attributable to him as $86,938.03. He argues that the proper amount of loss should be based only on his counts of conviction, and that therefore he should have been held responsible for only $42,068.64-the portion he received as “kickbacks” from S.H., who retained the other half. Thus, he contends, under United States Sentencing Guideline (“U.S.S.G.”) § 2B1.1(b)(1), his base offense level should have been increased by six levels, not eight levels.

This court reviews de novo questions of law arising under the Sentencing Guidelines. United States v. DeVegter, 439 F.3d 1299, 1303 (11th Cir.2006). This court reviews for clear error a district court's factual determinations made at sentencing. Id. Because Huff's arguments on appeal focus on whether the district court properly held him liable for kickbacks received by his co-conspirator, Huff raises a legal issue subject to de novo review. Id.

For purposes of determining the offense level, under former U.S.S.G. § 2C1.1(b)(2)(A) (2002) (amended 2004), the amount of loss is the greater of “the value of the payment, the benefit received or to be received in return for the payment, or the loss to the government from the offense.” Contrary to Huff's contention, the value of the bribe (i.e. the kickback) is used only when the value of the bribe exceeds the value of the benefit or the value of the benefit cannot be determined because “for deterrence purposes, the punishment should be commensurate with the gain to the payer or the recipient of the bribe, whichever is greater.” U.S.S.G. § 2C1.1 cmt. background (2002) (amended 2004). Huff is also liable for: (1) all acts by others that he aided and abetted; and (2) the acts of his co-conspirators that were reasonably foreseeable to him and thus, jointly undertaken criminal activity. U.S.S.G. § 1B1.3(a)(1)(A) and (B).

Huff's contention that the loss amount is limited to his share of the kickbacks (i.e. his portion of the bribe) is foreclosed by this court's decision in DeVegter, 439 F.3d at 1303. In DeVegter, one of the two defendants, who worked at an investment banking firm, gave an intermediary $83,872 to use as a bribe in order to obtain a government contract. Id. at 1302. The intermediary who received this money, in turn, gave half of it to the other defendant, who helped secure the contract for the investment firm. Id. at 1302, 1305 n. 3. The district court calculated the loss amount based on the half-portion of the bribe that one of the defendants...