United States v. Burfoot

• Decision Date: 08 August 2018
• Docket Number: No. 17-4266,17-4266
• Citation: 899 F.3d 326
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony L. BURFOOT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

899 F.3d 326

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony L. BURFOOT, Defendant–Appellant.

No. 17-4266

United States Court of Appeals, Fourth Circuit.

Argued: May 8, 2018

Decided: August 8, 2018

ARGUED: Andrew Michael Sacks, Sacks & Sacks, Norfolk, Virginia, for Appellant. Uzo Enyinnaya Asonye, Office of the United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Dana J. Boente, United States Attorney, Alexandria, Virginia, Melissa E. O'Boyle, Assistant United States Attorney, Katherine Lee Martin, Assistant United States Attorney, Office of the United States Attorney, Norfolk, Virginia, for Appellee.

Before GREGORY, Chief Judge, and KEENAN and DIAZ, Circuit Judges.

DIAZ, Circuit Judge:

After a five-week jury trial, Anthony L. Burfoot was convicted of wire fraud, extortion under color of official right, conspiracy to commit such offenses, and two counts of perjury. The wire fraud, extortion, and conspiracy charges stem from Burfoot's solicitation of bribes from local real estate developers while serving on the city council in Norfolk, Virginia. And he was charged with perjury following his testimony in another trial in which he denied soliciting or accepting bribes. As we explain, we reject the issues raised by Burfoot's appeal and affirm the district court's judgment.

I.

In 2002, Burfoot was elected to serve on the Norfolk City Council. Around the same time, Burfoot's childhood acquaintance Curtis Etheridge ("Curtis") formed a development and construction company called Tivest. Although Burfoot didn't invest financially in Tivest, he was a "silent partner" in the enterprise. J.A. 950. According to Curtis, Burfoot promised to "set the table up" for Tivest by providing it with tax-funded construction projects in Norfolk. J.A. 801. Between 2004 and 2005, Curtis provided Burfoot with various perks, including $20,000 to $30,000 worth of home improvements at no charge. Curtis also frequently paid for Burfoot's meals, trips, and entertainment.

In early 2005, Curtis was convicted of making a false 911 call and impersonating a police officer while at a nightclub. After the local newspaper reported that Burfoot had been with Curtis at the club that evening, Burfoot decided to distance himself from Tivest. He met with Curtis and another Tivest principal, Recardo Lewis, to discuss his role in the company. Curtis's brother, Dwight Etheridge ("Dwight"), was also at the meeting. Burfoot told them that he wanted Dwight to "buy him out" of his interest in Tivest for $250,000. J.A. 953. In exchange, Burfoot would ensure the City awarded Tivest a large construction contract for a development project known as the Broad Creek Villas, which he said would include $600,000 of taxpayer funding for infrastructure. The Broad Creek Villas project, a mixed-use development located in Burfoot's ward, was going to be the "cash cow" for Tivest's future earnings. J.A. 837.

Lewis pushed back against Burfoot's buyout demand, pointing out that Burfoot hadn't actually invested any of his own money in the company. In response, Burfoot threatened to award the Broad Creek Villas project to another construction company. He also stated that there were other construction companies he could get things done with. As a result, the Etheridge brothers capitulated and, two days later, Dwight made an initial cash payment of $30,000 to Burfoot.

Over the next six years, Burfoot demanded and received hundreds of thousands of dollars in cash and gifts from Curtis and Dwight, including free home renovations, free meals and entertainment, use of Dwight's Porsche, and a free Mercedes concealed by a sham loan. Dwight ultimately became CEO of Tivest and Burfoot's primary source of cash and gifts. He met with Burfoot more than seventy times to hand off cash in various amounts, usually under $10,000.

Burfoot in turn voted to approve ordinances that awarded construction projects to Tivest or benefitted the company in other ways. In 2008, for example, Burfoot cast votes to ensure that the Broad Creek Villas project proceeded, and, on July 22, 2008, voted to award the project to Tivest. Phone records show that Burfoot and Dwight spoke over the phone sixteen times that day. The ordinance awarding the project to Tivest granted the company a large plot of city-owned land for a nominal $10. It also provided Tivest with $200,000 in infrastructure support and a $5 million loan for construction.

Burfoot also cast votes in support of Tivest's MidTown Office Tower project, a proposed six-story office building that Tivest wanted to build on city-owned land. In November 2008, Burfoot voted to award Tivest the MidTown project, conveying a large parcel of land valued at $990,800 for no cost and $1 million in city funds to make improvements to the property. A week before the vote, Dwight—at Burfoot's direction—made a $1,000 payment on Burfoot's car loan and forged Burfoot's signature to conceal the source of the payment. Dwight also promised to give Burfoot a portion of the funds obtained from the MidTown project construction loan as well as a personal office on the top floor of the MidTown Office Tower.

In early 2011, the city council was poised to vote on an ordinance that would ensure Tivest could properly finance the MidTown project. Burfoot was serving as Norfolk's Chief Deputy Treasurer at the time, in addition to his role on the city council. Several days before the vote, on Saturday, February 12, the city council held a town hall meeting where citizens critical of the MidTown project alleged that Tivest was delinquent in paying its city taxes. After the meeting, Burfoot, afraid of losing the upcoming vote to finance the MidTown project, instructed Dwight to pay Tivest's taxes "as soon as the door opened up" on Monday. J.A. 1134. Burfoot also called one of his employees in the Treasurer's office, Wendy Petchel, and told her to prepare the paper work for Dwight to pay Tivest's taxes.

Early Monday morning, Dwight and Burfoot spoke over the phone, and then Dwight headed down to the City Treasurer's office where he and Burfoot discussed the tax payment. Burfoot then directed Dwight to see Petchel to make the payment. Petchel provided Dwight with an itemized breakdown of Tivest's delinquent taxes, which exceeded $20,000. Dwight wrote a check for a portion of the overdue taxes and used his sister's American Express credit card to pay the remaining $10,000 owed. Taxpayers typically weren't permitted to use another person's credit card to pay taxes, and a supervisor, like Petchel, would have had to approve that type of payment. Right after Dwight made the payment, he returned to Burfoot's office and told him the taxes were paid. Burfoot later directed Petchel to provide misleading information to the media regarding the timing of the tax payment.

The next day, Burfoot voted in favor of the ordinance to finance Tivest's MidTown project, which passed on a 5-3 vote. One city council member testified that he wouldn't have cast his vote in favor of the ordinance if Tivest had been delinquent on its taxes. But this big win for Burfoot and Tivest was short lived. A week later, the City announced it wouldn't move forward with the MidTown project because the anchor tenant couldn't confirm its participation. At this point, Dwight was out of money so Burfoot and Dwight parted ways.

Burfoot's relationship with Tivest wasn't his only quid pro quo relationship with a local developer. Shortly after Burfoot was elected to city council in 2002, he met restaurant owner and real estate developer Ronald Boone. Burfoot asked for and received thousands of dollars in cash payments from Boone, as well as regular access to Boone's beach house in Kitty Hawk, North Carolina. In exchange, Burfoot cast votes to support Boone's business interests.

Burfoot established a similar relationship with Thomas Arney, another local developer. Arney had recently developed a condominium project known as Widgeon Pointe, which was financed by the Bank of the Commonwealth (the "BOC"). Tammy Sansbury, the mother of Burfoot's twin daughters, worked at the BOC and wanted to buy a Widgeon Pointe condominium, but she didn't have the money for the down payment. In May 2009, Burfoot asked Arney to give Sansbury $25,000 so that she could purchase the condominium. In exchange, Burfoot promised to get Arney the city council votes he needed to open his proposed gentlemen's club. The two men shook on the agreement.

Although the city council never approved the gentlemen's club, Arney gave Sansbury the $25,000 and sold her a condominium unit in exchange for Burfoot's promise to support Arney's other business interests. Burfoot followed through on his promise, voting and lobbying for ordinances that allowed Arney to open a new bar and use an oversized sign to advertise it.

Federal investigators eventually turned their attention to Arney's corrupt relationship with BOC executives and insiders. Arney began cooperating with federal agents and told them about his $25,000 payment to Sansbury (a BOC employee) in exchange for Burfoot's votes. He pleaded guilty and testified in a federal criminal trial (the " Woodard trial") against four BOC executives and Dwight from Tivest, who were all being tried on various charges of bank fraud and improper use of bank funds. After Arney testified about his bribery scheme with Burfoot, a BOC executive subpoenaed Burfoot as a witness. On the witness stand at the Woodard trial, Burfoot denied ever asking Arney to give Sansbury $25,000. Burfoot also denied ever soliciting or accepting anything of value in exchange for an official act.

A grand jury ultimately charged Burfoot in an eight-count indictment with (1) conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. § 1349 ; (2) honest-services wire fraud, in violation of 18 U.S.C. § 1343 ; (3) conspiracy to obtain property under color of official right ("Hobbs Act extortion"), in violation of 18 U.S.C. § 1951 ; (4) Hobbs Act extortion, in...