U.S. v. Jennings

• Decision Date: 19 November 1998
• Docket Number: No. 96-4170,96-4170
• Citation: 160 F.3d 1006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry E. JENNINGS, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1006

160 F.3d 1006

UNITED STATES of America, Plaintiff-Appellee, v. Larry E. JENNINGS, Sr., Defendant-Appellant.

No. 96-4170.

United States Court of Appeals Fourth Circuit.

Argued July 11, 1997.

Decided Nov. 19, 1998.

George J. Terwilliger, III, McGuire, Woods, Battle & Boothe, L.L.P., Washington, DC, for Appellant. Kathleen O'Connell Gavin, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Laura A. Colombell, McGuire, Woods, Battle & Boothe, L.L.P., Washington, DC; E. Duncan Getchell, Jr., Richmond, Virginia, for Appellant. Lynne A. Battaglia, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.

OPINION

MICHAEL, Circuit Judge:

A jury found Larry Jennings, Sr., a housing repair contractor, guilty of three counts of violating 18 U.S.C. § 666, a statute that prohibits corruption of officials who administer state and local programs receiving federal funds. On appeal Jennings argues that § 666 outlaws only bribes, not gratuities, and that the government did not prove that the payments he made to a city official were actually bribes. We conclude, however, that the evidence was sufficient to convict Jennings of bribery. Jennings also contends that a new trial is required because the jury instructions misstated the "corrupt intent" element of bribery by failing to require proof of intent to engage in a quid pro quo. We reject this contention under a plain error analysis. Accordingly, we affirm.

I.

The Housing Authority of Baltimore City (HABC) is a local government agency that operates and maintains subsidized housing units within the City. HABC receives funds from the United States Department of Housing and Urban Development. In late 1991 HABC began a special program to renovate hundreds of vacant housing units owned by that agency in Baltimore. To expedite the renovations, a housing emergency was declared, which allowed HABC to dispense with the usual bidding procedures for selecting contractors. As a result, HABC developed a list of about thirty contractors who were awarded work by purchase order without competitive bidding. This no-bid program was known as the Vacancy Special Funding Program (VSFP). Between 1992 and 1994 Charles Morris, a HABC employee, was the administrator of VSFP. Morris had the discretion to decide what jobs were awarded to each contractor on the list as well as the authority to negotiate the price for each contract. ¹

Under the VSFP program, contractors submitted an estimate of the cost to rehabilitate a housing unit, and an in-house estimator at HABC prepared a second, independent estimate. Morris sometimes did the in-house estimate himself. Morris reviewed the two estimates in every case. If the contractor's estimate and the in-house estimate differed by less than ten percent, Morris forwarded the paperwork for formal approval and the issuance of a purchase order. If the estimates differed by more than ten percent, Morris either increased the in-house estimate or negotiated a reduction in the contractor's estimate. Upon the issuance of the purchase order, the contractor was authorized to begin work. When the job was finished, a HABC inspector working under Morris inspected the unit. If the inspector found that the work had been performed satisfactorily, the inspector issued a certificate of completion to the contractor. The contractor then submitted the certificate to Morris for payment.

Jennings was a construction contractor who owned two businesses, Elias Contracting Co. (Elias) and Environmental Protection Co. (EPC). He was vice-president of both companies and his daughter, Georgia Jennings Page (Page), was president. In 1991 Jennings became interested in obtaining HABC contracts for Elias. He and his son, Larry Jennings, Jr. (Jennings Jr.), met with Morris at a restaurant that year to discuss the possibility of doing VSFP work. Jennings Jr. was a member of the HABC Board of Commissioners, which oversaw HABC's activities. Sometime after this meeting Morris placed Eliason the VSFP contractor list.

While Elias was performing VSFP work in 1993, Jennings made cash payments to Morris on five occasions. The first payment occurred in early spring when Morris went to Jennings's office to deliver a HABC check for work that Elias had completed. There, Jennings gave $200 to Morris and told Morris that he (Jennings) would not "have made it" without Morris's help. After this payment, VSFP contracts and payment checks flowed on a regular basis from HABC to Jennings's companies.

Later that spring, on April 26, 1993, Elias deposited in its account a $75,786.43 check from HABC for work performed under the VSFP program. That same day, Jennings telephoned Morris to arrange a meeting in Jennings's car. As the two men drove around downtown Baltimore, Jennings handed Morris a paper bag containing between $2,500 and $3,000 in cash. In thanking Morris, Jennings acknowledged that Morris's help had been essential. The following day Elias submitted five new proposals for VSFP work totaling $86,609. Over the next several days Morris reviewed these proposals and approved them at a total of $86,061, very close to the amount Elias had sought. To approve the jobs for that level of payment, Morris had to increase several of the in-house estimates.

On May 4, 1993, Elias deposited another HABC check in the amount of $46,408.75, received in payment for VSFP work. The next day Jennings again met with Morris. Jennings gave Morris $2,500 in cash and thanked him, just as before. Over the next week Elias submitted eight new proposals for VSFP work, with a total price tag of $170,440. Morris approved all of the proposals for a total price of $163,973. In authorizing this work, Morris bumped up some of the in-house estimates, approved several proposals for the exact amount Elias requested, and approved others for amounts slightly less than the Elias estimates.

In June 1993 Jennings's other company, EPC, began efforts to obtain work under another no-bid program at HABC, lead testing on VSFP units. Morris gave Page a sample proposal to use in preparing EPC's submission for this work. Soon thereafter, Page gave Morris a draft of EPC's $254,000 proposal, and Morris worked over a week-end to help Page finalize the proposal. At about the same time, Elias submitted eight new proposals, totaling $151,535, for VSFP rehabilitation work. On June 25, 1993, Morris approved all eight of these proposals for amounts near or equal to what Elias requested, for a total authorization of $148,841. That same day HABC issued a purchase order awarding the lead testing contract to EPC, and Elias deposited a HABC check for $16,506. Also on that day, Jennings gave Morris $1,500 in cash. Jennings told Morris, "If it wasn't for you, I don't know what I would have done." In July 1993 Jennings gave Morris an additional $200 in cash.

Jennings used various ploys to get the cash for the three payments charged in the indictment. For the first payment (of $2,500 to $3,000) Jennings, on April 26, 1993, wrote a $3,000 check on the Elias account, payable to Moe Construction, a small company that had subcontracted with Elias to rehabilitate two VSFP units. Jennings, however, did not deliver the check to Moe Construction. Rather, Jennings took the check to Charles "Moe" Armwood, who ran a check cashing and liquor store business called Doc's Liquors. Moe Armwood cashed the check for Jennings, endorsed it, and deposited it in the bank account of Moe Corporation II, one of Armwood's business accounts. That same day (April 26) Jennings took the cash proceeds from the check and made a payment to Morris.

Cash for the second payment, for $2,500, came from a $15,000 check, dated May 5, 1993, that Jennings wrote on the Elias account, payable to B.H.S., another Elias subcontractor. Jennings did not deliver the check to B.H.S. Once again, he took the check to Moe Armwood at Doc's Liquors, who cashed it. Jennings used part of the cash to pay Morris.

Money for the last charged payment came from a $1,500 personal check that Jennings cashed at Doc's Liquors on June 26, 1993. Jennings took the full $1,500 to Morris that day.

Although Morris admitted to accepting cash from Jennings, he testified that he took gifts, not bribes. Morris also said that while he often assisted Jennings's companies with paperwork, he never did any special favors for Jennings's companies as a result of the gifts. Morris admitted, however, that Jennings was the only contractor to whom he personally delivered HABC payment checks. Morris dropped off Jennings's checks at his (Jennings's) place of business, while all other contractors picked up their checks at Morris's office. Finally, Morris claimed that he put Elias on the no-bid contractor list at the request of his supervisor.

James Karim, who was a subcontractor for Elias on three VSFP jobs, was another witness for the government. According to Karim, Jennings required him to do extra work that was not covered by the subcontracts and then refused to pay for this work. Karim's partner called Morris at the VSFP office to complain about Jennings's methods of dealing, including his failure to pay for all work completed. When Jennings learned of the call, he told Karim that the calls were of "no use." Jennings said, the "people downtown report right back to[me].... I have that under control. So, your complaints are ...worthless." As Jennings predicted, Morris took no action on Karim's complaint.

Jennings testified in his own defense. He denied giving any money to Morris.

II.

Jennings argues that district court erred when it denied his motion for a judgment of acquittal under Fed.R.Crim.P. 29. We must sustain his conviction if the evidence, viewed in the light most favorable to the government, was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. See United States v. Brewer, 1 F.3d 1430, 1437 (...