U.S. v. Moore, No. 07-10326.

• Decision Date: 22 April 2008
• Docket Number: No. 07-10326.
• Citation: 525 F.3d 1033
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan MOORE and Gregory Dixon, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

525 F.3d 1033

UNITED STATES of America, Plaintiff-Appellee, v. Alan MOORE and Gregory Dixon, Defendants-Appellants.

No. 07-10326.

United States Court of Appeals, Eleventh Circuit.

April 22, 2008.

Thomas M. Findley (Court-Appointed), Sean Michael Shaw, Messer, Caparello & Self, P.S., Robert Augustus Harper, Jr., Tallahassee, FL, for Defendants-Appellants.

Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

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

Before EDMONDSON, Chief Judge, and KRAVITCH and ALARCÓN,^* Circuit Judges.

ALARCÓN, Circuit Judge:

Officer Alan Moore and Officer Gregory Dixon seek reversal of their convictions following trial by jury. Officer Moore and Officer Dixon contend that the evidence was insufficient to prove a conviction of conspiracy to accept an illegal gratuity and an "official act." They also assert that there was a material variance between the allegations of conspiracy in the indictment and the evidence produced at trial. They argue that the Government failed to prove a single conspiracy as alleged in the indictment and the District Court erred in its conspiracy instructions.

Officer Dixon also asserts that the District Court erred in its instructions on the elements of bribery. Officer Moore maintains that the evidence was insufficient to support his conviction for witness tampering.

We affirm because we conclude that the District Court properly rejected these contentions.

I

Appellants Alan Moore and Gregory Dixon were correctional officers at the Federal Correctional Institute in Tallahassee, Florida, a women's institution, on the dates the crimes in the indictment were alleged to have occurred. Officer Moore and Officer Dixon, along with four other correctional officers, were charged with a variety of misconduct arising from their inappropriate sexual contact with female inmates and their distribution of contraband to inmates. Officer Moore and Officer Dixon pled not guilty. Their four co-defendants pled guilty.

At trial, the Government produced evidence that Officer Moore and Officer Dixon engaged in sexual acts with various inmates in exchange for contraband. Furthermore, the Government presented evidence that the officers assisted each other in gaining access to the inmates, so that they could engage in sexual acts with them. The officers switched assignments, gave keys to other officers to staff offices so that they could meet with the inmates in private, and permitted inmates to leave their cells to meet with other officers. Additionally, the officers had an unspoken agreement that they would not report their illicit activities.

Officer Moore was found guilty of conspiracy to accept an illegal gratuity, the lesser included offense of the charge of conspiracy to commit bribery alleged in Count One, and witness tampering as alleged in Count Seventeen. R267. Also, the jury convicted Officer Moore of accepting an illegal gratuity, a lesser included offense of the crime of bribery alleged in Count Sixteen. The District Court granted judgment of acquittal of that lesser included offense, notwithstanding the jury's guilty verdict. R267. Officer Moore was sentenced on Count One and Count Seventeen to twelve months of incarceration, to run concurrently, followed by a three-year term of supervised release, and ordered to pay a $6,000 fine. R267.

Officer Dixon was found guilty of conspiracy to accept an illegal gratuity, a lesser included offense of the crime of conspiracy to commit bribery alleged in Count One, and bribery, the charges alleged in Counts Nine through Eleven. R265. Officer Dixon was sentenced to twelve months of imprisonment on Counts One, Nine, Ten, and Eleven, to run concurrently, followed by a three-year term of supervised release. He was also ordered to pay a $3,000 fine. R265. Officer Moore and Officer Dixon filed timely notices of appeal. R258, 260.

II

A

Officer Moore and Officer Dixon argue that there was insufficient evidence to convict them of conspiracy to accept an illegal gratuity pursuant to 18 U.S.C. § 201(c)(1)(B). To prove a violation of § 201(c)(1)(B), the Government must establish that:

a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person.

18 U.S.C. § 201(c)(1)(B). They argue that there was insufficient evidence of an agreement to receive something of value.

The question of whether the evidence was sufficient to support a conviction is reviewed de novo. United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994). "Although we conduct our review without special deference to the district court, we review the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor." Id. (citations omitted).

To sustain a verdict of guilt the evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, as long as a reasonable factfinder choosing from among reasonable constructions of the evidence could find that the evidence establishes guilt beyond a reasonable doubt.

United States v. Sepulveda, 115 F.3d 882, 888 (11th Cir.1997) (citations omitted). Conflicting testimony is an issue of credibility left to the fact finder to determine. United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.2002).

Officer Moore and Officer Dixon argue that the testimony of Officer Alfred Barnes does not establish the existence of an agreement between the officers. Dixon Br. at 14-15. The Government argues that Officer Barnes's testimony established that an agreement existed between the guards. Gov't Br. at 30-31. We agree.

"The elements of the offense of conspiracy are: (1) an agreement between the defendant and one or more persons, (2) the object of which is to do either an unlawful act or a lawful act by unlawful means." United States v. Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir.2006) (citation omitted). While an agreement is always required for conviction of conspiracy, the Government is not required to demonstrate the existence of a "formal agreement." Id. Instead, an agreement may be demonstrated by circumstantial evidence of a meeting of the minds to commit an unlawful act. Id. Proof that the accused committed an act which furthered the purpose of the conspiracy is an example of the type of circumstantial evidence the Government may introduce to prove the existence of an agreement. United States v. Sullivan, 763 F.2d 1215, 1218-19 (11th Cir.1985).

The circumstantial evidence presented at trial was sufficient for a rational fact finder to infer the existence of an agreement between the officers. Inmate Shonnie D. testified that Officer Moore gave Officer Barnes the keys to the staff office area so he could meet with inmate Shonnie D. in the middle of the night to perform a sexual act. R313 at 221-23. Inmate Shonnie D. also testified that Officer Moore permitted her to leave her unit to visit Officer Barnes. R313 at 218-19. Additionally, Officer Barnes testified that Officer Moore knew that Officer Barnes engaged in sexual intercourse with inmate Shonnie D. R315 at 783. Officer Barnes stated that he and Officer Moore had an "understanding" that they would not turn each other in. R315 at 845.

Officer Barnes testified that there was a mutual unstated understanding to switch assignments so Officer Dixon could see inmate Sabrina B., and Officer Barnes could avoid inmate Shonnie D. in order to prevent the sex for contraband scheme from being discovered. R315 at 845-46. Officer Barnes further testified that Officer Dixon explained to him how to make money bringing in contraband for inmates who could be trusted.

Officer Moore and Officer Dixon correctly note that Officer Barnes gave conflicting testimony about the agreement that existed between the guards. Dixon Br. at 13-15, citing R315 at 828-29. When Officer Barnes gave conflicting testimony, his credibility as a witness became a question of fact for the jury to decide. Here, the jury determined his testimony was believable. See Ramirez-Chilel, 289 F.3d at 749 (holding that the Court must give deference to the fact finder's determination of credibility unless it is "unbelievable"). We conclude from the evidence in this record that there was sufficient circumstantial evidence that Officer Moore and Officer Dixon had an agreement to participate in a sex-for-contraband conspiracy.

Officer Moore and Officer Dixon contend that there was insufficient evidence that an "official act" occurred. For purposes of § 201(c)(1)(B), an "official act" is defined as "any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's capacity, or in such official's place of trust or profit." 18 U.S.C. § 201(a)(3).

Officer Moore and Officer Dixon cite to Valdes v. United States, 475 F.3d 1319 (D.C.Cir.2007), in support of their contention that the Government failed to present evidence of an "official act." Valdes involved moonlighting police officers who looked up information on a criminal database in exchange for cash. Id. at 1321-22. The Valdes court held these inquiries did not rise to the level of issues that the Government normally resolves, like the question of whether the police should investigate a person or not. Id. at 1325-26. The court defined "official act" in the negative, stating that "precedent and the language of the statute make clear that § 201 is not about officials' moonlighting, or their misuse of government resources, or the two in...