United States v. Teel

• Decision Date: 14 August 2012
• Docket Number: No. 11–60509.,11–60509.
• Parties: UNITED STATES of America, Plaintiff–Appellee. v. Walter W. TEEL; Paul S. Minor; John H. Whitfield, Defendants–Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

691 F.3d 578

UNITED STATES of America, Plaintiff–Appellee.

v.Walter W. TEEL; Paul S. Minor; John H. Whitfield, Defendants–Appellants.

No. 11–60509.

United States Court of Appeals,Fifth Circuit.

Aug. 14, 2012.

John Alexander Romano (argued), Trial Atty., U.S. Dept. of Justice, Crim. Div., Washington, DC, David Harrison Fulcher, Jackson, MS, Ruth R. Morgan, Asst. U.S. Atty., Gulfport, MS, for Plaintiff–Appellee.

George Lowrey Lucas, Asst. Fed. Pub. Def. (argued), Fed. Pub. Defender's Office, Oxford, MS, Theodore B. Olson, David Debold (argued), Gibson, Dunn & Crutcher, L.L.P., Washington, DC, Ashley E. Johnson, Gibson, Dunn & Crutcher, L.L.P., Dallas, TX, Charles R. McRae, McRae Law Firm, Jackson, MS, Michael Wesley Crosby (argued), Gulfport, MS, for Defendants–Appellants.

Appeals from the United States District Court for the Southern District of Mississippi.

Before KING, PRADO and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

Appellants Walter W. Teel (“Teel”), Paul S. Minor (“Minor”), and John H. Whitfield (“Whitfield”) (collectively, “Appellants”) raise several appellate issues arising from their final amended judgments of convictions and sentences entered by the district court after this court remanded the case for resentencing in United States v. Whitfield, 590 F.3d 325 (5th Cir.2009). Specifically, Appellants challenge: (1) the jury instructions for erroneously defining honest-services fraud; (2) the indictment for failure to state an offense; and (3) whether the district court committed various errors in sentencing Minor and Whitfield.¹ We AFFIRM.

I. Original Appeal

Because the complete factual history is extensively set out in Whitfield, we only summarize the relevant procedural history.

In 2007, a jury found Appellants guilty on all charges. Minor received 132 months of imprisonment to be followed by three years of supervised release, was fined $2.75 million ($250,000 for each of his eleven counts of conviction), and, along with Teel, was ordered to pay $1.5 million as restitution to United States Fidelity and Guaranty (“USF&G”), the victim of the Minor/Teel bribery scheme. In addition to the restitution order, Teel received seventy months of imprisonment and two years of supervised release. Whitfield received 110 months of imprisonment, three years of supervised release, and a $125,000 fine.

In Whitfield, however, we concluded that the district court committed plain error when it denied Appellants' motions for judgment of acquittal under Federal Rule of Criminal Procedure 29 on the 18 U.S.C. § 666 counts of the indictment. Accordingly, we reversed all of the convictions related to federal program bribery in violation of § 666, including Minor and Teel's convictions for conspiracy to commit federal program bribery. However, we affirmed each remaining count of conviction, specifically, Appellants' convictions for honest-services mail and wire fraud in violation of 18 U.S.C. §§ 1341, 1343, and 1346,² Minor and Whitfield's convictions for conspiracy in violation of 18 U.S.C. § 371, and Minor's conviction for racketeering in violation of 18 U.S.C. § 1962(c).

In light of the foregoing, we vacated each Appellant's sentence and remanded the case for resentencing. Thereafter, Minor unsuccessfully petitioned this court for rehearing, and each Appellant unsuccessfullypetitioned the Supreme Court for a writ of certiorari.

On remand for resentencing, Minor, joined by Whitfield and Teel, filed in the district court a motion to vacate their convictions in light of the Supreme Court's decision in Skilling v. United States, ––– U.S. ––––, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). Appellants argued that Skilling was an intervening change of law by a controlling authority that rendered the indictment and jury instructions erroneous. After receiving supplemental briefing and hearing argument, the district court denied Appellants' motion.

The district court then resentenced Appellants. Whitfield received seventy-five months of imprisonment and two years of supervised release. Teel received fifty-one months of imprisonment and two years of supervised release. Minor received ninety-six months imprisonment³ to be followed by three years of supervised release, and was fined $2 million ($250,000 for each of his eight remaining counts of conviction). Also, as before, Minor and Teel were ordered jointly and severally to pay restitution to USF&G. This timely appeal followed.

II. Current Appeal: Convictions and Law of the Case

Between the original appeal and the current appeal, the Supreme Court decided Skilling. In that case, Defendant Jeffrey Skilling (“Skilling”) was charged with and convicted of, inter alia, conspiracy to commit securities and wire fraud. See id. at 2908. Specifically, according to the indictment, “Skilling had sought to ‘depriv[e] Enron and its shareholders of the intangible right of [his] honest services.’ ” Id. (alterations in original). The Supreme Court granted certiorari to address whether Skilling's conviction for conspiracy to commit honest-services wire fraud was improper: “We ... consider whether Skilling's conspiracy conviction was premised on an improper theory of honest-services wire fraud. The honest-services statute, § 1346, Skilling maintains, is unconstitutionally vague. Alternatively, he contends that his conduct does not fall within the statute's compass.” Id. at 2925–26. The Court determined that § 1346 is not unconstitutionally vague, but that its reach is limited to bribery and kickback schemes, not other conduct, such as conflict-of-interest schemes. Id. at 2930–34.

Appellants argue that Skilling changed the law of honest-services fraud to render both the jury instructions and the indictment in this case erroneous. Specifically, Appellants allege that the jury instructions were erroneous because they incorporated the Mississippi-state-law definition of bribery. In addition, Appellants allege that the indictment failed to state an offense under § 1346 because instead of charging bribery under federal law, the relevant counts charged that “honest services” are those “performed free from deceit, bias, self-dealing, and concealment.” In this way, Appellants continue, the indictment charged a conflict-of-interest scheme, which Skilling specifically excludes from § 1346's compass. According to Appellants, each of these errors independently requires reversal of their convictions.

These arguments implicate the law-of-the-case doctrine. Under that doctrine, the district court on remand, or the appellate court on a subsequent appeal, abstains from reexamining an issue of fact or law that has already been decided on appeal. See, e.g., United States v. Carales–Villalta, 617 F.3d 342, 344 (5th Cir.2010). A facet or corollary of the law-of-the-case doctrine is the mandate rule. See United States v. Becerra, 155 F.3d 740, 753 (5th Cir.1998), abrogated on other grounds by United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Under the mandate rule, “[a] district court on remand ‘must implement both the letter and the spirit of the appellate court's mandate and may not disregard the explicit directives of that court.’ ” United States v. McCrimmon, 443 F.3d 454, 459 (5th Cir.2006) (quoting United States v. Matthews, 312 F.3d 652, 657 (5th Cir.2002)).

Accordingly, the mandate rule “prohibits a district court on remand from reexamining an issue of law or fact previously decided on appeal and not resubmitted to the trial court on remand. This prohibition covers issues decided both expressly and by necessary implication ....” United States v. Pineiro, 470 F.3d 200, 205 (5th Cir.2006) (per curiam). “Additionally, pursuant to the ‘waiver approach’ to the mandate rule,” McCrimmon, 443 F.3d at 459, “ ‘[a]ll other issues not arising out of this court's ruling and not raised before the appeals court, which could have been brought in the original appeal, are not proper for reconsideration by the district court below,’ ” Pineiro, 470 F.3d at 205 (citation omitted). See also United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (“Absent exceptional circumstances, the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court. Moreover, the rule bars litigation of issues decided by the district court but foregone on appeal or otherwise waived, for example because they were not raised in the district court.”). “We review de novo a district court's application of the remand order, including whether the law-of-the-case doctrine or mandate rule forecloses the district court's actions on remand.” Carales–Villalta, 617 F.3d at 344.

Both the law-of-the-case doctrine and the mandate rule are discretionary practices, not jurisdictional rules, and they are subject to an exception Appellants urge here: that “there has been an intervening change of law by a controlling authority.” Matthews, 312 F.3d at 657. Appellants contend that their challenges to the jury instructions and the indictment were properly before the district court on remand for resentencing because Skilling satisfies the intervening-change-of-law exception. We disagree.

Appellants argue that, after Skilling, § 1346 criminalizes only bribery and kickbacks under federal law, thereby specifically excluding bribery and kickbacks under state law. According to Appellants, by the Skilling Court's stating that its “construction of § 1346 ‘establish[es] a uniform national standard,’ ” 130 S.Ct. at 2933 (alteration in original), the Court could only have meant federal law. A fair reading of Skilling, however, reveals that the Court was establishing a uniform national standard by construing § 1346 to clearly exclude conduct outside of bribery and kickbacks, such as conflict-of-interest schemes, not to establish federal law as the uniform national standard for the elements of bribery and kickbacks in § 1346 prosecutions.⁴ M...