625 F.3d 892 (5th Cir. 2010), 08-11090, United States v. Bohuchot

Docket Nº:08-11090.
Citation:625 F.3d 892
Opinion Judge:OWEN, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ruben B. BOHUCHOT and Frankie Logyang Wong, Defendants-Appellants.
Attorney:Delonia Anita Watson, Asst. U.S. Atty. (argued), Fort Worth, TX, for U.S. Jerry V. Beard, Asst Fed.Pub. Def. (argued), Fort Worth, TX, for Bohuchot.
Judge Panel:Before SMITH, CLEMENT and OWEN, Circuit Judges.
Case Date:November 09, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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625 F.3d 892 (5th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ruben B. BOHUCHOT and Frankie Logyang Wong, Defendants-Appellants.

No. 08-11090.

United States Court of Appeals, Fifth Circuit.

November 9, 2010

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[Copyrighted Material Omitted]

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Delonia Anita Watson, Asst. U.S. Atty. (argued), Fort Worth, TX, for U.S.

Jerry V. Beard, Asst Fed.Pub. Def. (argued), Fort Worth, TX, for Bohuchot.

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

Before SMITH, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Ruben B. Bohuchot and Frankie Logyang Wong were convicted of bribery, conspiracy to commit bribery, and conspiracy to launder monetary instruments in connection with computer and technology contracts awarded by the Dallas Independent School District and programs that received federal funds. Bohuchot and Wong challenge these convictions and their respective sentences. We affirm the convictions and sentences.

I

Ruben Bohuchot and Frankie Wong were charged in a multi-count indictment for offenses relating to the award of computer technology contracts by the Dallas Independent School District (DISD). At the time of the indictment, Bohuchot was DISD's chief technology officer. Wong was the president and co-owner of Micro Systems Engineering, Inc. (MSE), a computer reseller that contracted with larger companies to resell and maintain computer hardware.

Two contracts were at the center of the government's bribery and conspiracy allegations. The first was for a technology program called Seats Management, which provided computers, related services, and support for schools within the district. DISD awarded this contract, calling for payments totaling approximately $18 million, to a partnership between Hewlett-Packard (HP) and MSE in September 2002. MSE received at least $4,674,303 for its participation in the partnership. The second contract involved E-Rate, a federal program that provides money and technology to school districts that subsidize student lunches. DISD awarded this contract, contemplating payments of over $115 million, in December 2003 to a group of 13 companies called the Consortium, which included HP, Novell, and MSE. More than $35 million was paid to MSE on behalf of the Consortium between May 2003 and July 2005 for MSE's participation.

DISD used Requests for Proposals (RFP) to inform potential bidders of the scope, location, and requirements for its major technology projects. To insure fairness

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in the bidding process, information regarding forthcoming RFPs and their requirements was released to all competitors at the same time. The propriety of the relationship between Bohuchot and Wong came into question when a vendor who bid unsuccessfully for one of the DISD technology contracts lodged a complaint. Subsequent investigation by the government revealed substantial evidence that Wong and Bohuchot had engaged in an ongoing scheme in which Bohuchot provided valuable inside information regarding the RFP process to Wong in return for cash, vacation trips for Bohuchot and his family members, employment for Bohuchot's son-in-law, sporting event tickets, and extensive use of two yachts owned by an MSE affiliate. There was evidence that Bohuchot provided insider information for approximately one year before the initial Seats Management RFP was released and that Bohuchot had met with Wong in Key West, Florida days before the release of that RFP. Witnesses for the government who were present at this latter meeting testified that Bohuchot shared a draft copy of the Seats Management RFP with Wong and associates at that time.

Wong and Bohuchot were convicted of violating and conspiring1 to violate 18 U.S.C. §§ 666(a)(1)(B) and (2) (bribery concerning programs receiving federal funds), and of conspiracy to commit money laundering. 2 Bohuchot was also convicted of obstruction of the grand jury proceeding3 and of making a false statement on a tax return,4 but he has not appealed his convictions for these latter offenses. The district court sentenced Bohuchot to a 132-month term of imprisonment and Wong to a 120-month term of imprisonment. Wong brings forward six issues on appeal, arguing that (1) the government's proof and the charge to the jury constructively amended the indictment, (2) there was insufficient evidence to support the bribery theory on which Wong was indicted, (3) the prosecutor impermissibly commented on Wong's failure to testify, (4) the jury instructions were erroneous regarding money laundering because the mens rea element was " knowing" rather than " intentional," (5) the district court erred in using the total cost of ownership of two yachts in sentencing, and (6) the district court erroneously found multiple bribes rather than a single bribe. Bohuchot adopts Wong's argument and briefing regarding five of these issues.

II

We first consider the argument that the proof offered at trial by the government and the jury charge submitted by the district court permitted the jury to convict Wong and Bohuchot on theories that were not alleged in the indictment, thereby impermissibly constructively amending the indictment. The defendants rely on the Supreme Court's seminal decision in Stirone v. United States, in which the indictment alleged that Stirone had unlawfully interfered with interstate commerce in sand.5 At trial the prosecution presented not only evidence of interference with interstate commerce in sand but as to steel as well, and over the defendant's objection, the trial court's charge permitted the jury to convict based on a finding regarding

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either sand or steel.6 The Supreme Court held that this violated " the basic protection the grand jury was designed to afford" because it " subject[ed] the defendant to prosecution for interference with interstate commerce which the grand jury did not charge." 7

The indictment presently at issue alleged that Bohuchot provided and Wong received non-public information relating to the Seats Management contract before the information was provided to other vendors who were competing with MSE, which assisted MSE in submitting the winning bid, and that Bohuchot signed documents authorizing DISD to enter into contracts benefitting MSE. The indictment also alleged that approximately six months before the Seats Management RFP was published for bidding, Bohuchot represented that a former employee of DISD, William Coleman, was then an employee of DISD when in fact he was a consultant for MSE.

Wong and Bohuchot contend that the government's theory of the case shifted during trial and that it urged the jury to convict the defendants on grounds that differed from those set forth in the indictment. The allegedly new grounds include theories that Wong bribed Bohuchot to (1) manipulate the flow of information to the DISD board of trustees, (2) select individuals who would be favorable to MSE to serve on committees that would evaluate the competing bids on the two contracts, (3) influence or pressure those committees, (4) create favorable scoring matrixes or tamper with the scores for evaluating the competing bids, (5) improperly influence contract negotiations, and (6) rush the RFP process.

The defendants failed to object to any of the evidence or arguments by the prosecution that they now urge constructively amended the indictment. They contend, however, that they preserved their contentions by objecting to the district court's proposed instructions to the jury. The defendants point to the objections they lodged to the definition of " corruptly." The defendants argued to the district court that " [i]n light of the evidence that has developed," the jury instruction should have defined " corruptly" as " intent to receive a specific benefit in return for a payment. And incorporated in that is the intent of the specific quid pro quo required for bribery and under 201 Section 18, 201 concerning bribery under 18 U.S.Code Section 666." The defendants were referring to 18 U.S.C. § 201, regarding bribery of public officials, and were arguing that the same intent requirement for that offense is required under 18 U.S.C. § 666, the statute the defendants were charged with violating. During this colloquy with the court, Wong and Bohuchot also cited the Fourth Circuit's decision in United States v. Jennings for the proposition that " corrupt intent" is " the intent to engage in ‘ some more or less specific quid pro quo.’ " 8 Wong and Bohuchot reiterated similar objections to the definition of " corruptly" during subsequent discussions with

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the district court.9 However, there was no discussion of the evidence during the course of these objections. There was no hint or suggestion to the district court that the government had changed its theory of how the defendants had violated 18 U.S.C. § 666 or that this had resulted in a constructive amendment of the indictment. Nor did either of the defendants apprise the district court that the jury instructions would permit a conviction based on a theory that was not contained in the indictment. It was only to this court, on appeal, that Wong and Bohuchot for the first time argued that the indictment was constructively amended.

Prior to the Supreme Court's decision in United States v. Olano, 10 this court had held that " [c]onstructive amendments are reversible per se. " 11 Our post- Olano decisions, however, have concluded that plain error review applies even if there has been a constructive amendment. Although there is " tension between plain error review and the ‘ automatic reversal’ rule of Mize, " it is clear in this Circuit that we have " reconciled [that tension] in favor of plain error review." 12 Our inquiry is therefore...

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