United States v. Heard

• Citation: 709 F.3d 413
• Decision Date: 18 February 2013
• Docket Number: No. 11–20323.,11–20323.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. John Fluellen HEARD, Jr.; Gary Lee Lambert, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

709 F.3d 413

UNITED STATES of America, Plaintiff–Appellee,

v.John Fluellen HEARD, Jr.; Gary Lee Lambert, Defendants–Appellants.

No. 11–20323.

United States Court of Appeals, Fifth Circuit.

Feb. 18, 2013.

Frank Phillip Cihlar, Senior Counsel, Gregory Victor Davis, Elissa Righter Hart–Mahan, U.S. Department of Justice, Tax Division, Appellate Section, Washington, DC, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Jack Benjamin Zimmermann, Megan Elizabeth Smith, Terri Raye Zimmermann, Zimmermann, Lavine, Zimmermann & Sampson, P.C., Rosa Alexander Eliades, Eliades Law, P.L.L.C., Houston, TX, for Defendants–Appellants.

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

Before DAVIS, OWEN, and SOUTHWICK, Circuit Judges.

OWEN, Circuit Judge:

Appellees John Fluellen Heard, Jr. and Gary Lee Lambert were convicted of conspiracy to defraud the United States by failing to pay and impeding the IRS's collection of employment taxes. Heard was also convicted of two counts of tax evasion, one count of bribery of a public official, one count of willfully making and subscribing to a false return, and one count of corrupt interference with internal revenue laws. Both raise a number of challenges to their respective convictions and sentences. We affirm.

I

Heard, a former police officer, has been in the private security business for a number of years. Lambert is a certified public accountant (CPA). In the mid–1980s, Heard started his own private-security company. Lambert allegedly became associated with Heard a few years later when they incorporated a company named Guardex, Inc. Between the years of 1988 and 2000, Heard, Lambert, or both reincorporated and changed the name of Heard's security company multiple times. Over those years, Heard and Lambert were involved in incorporating the following companies: Guardex, Inc. and Guardex II, Inc., which did business under the name Guardex; Probe Protection; Investigation, Protection & Security, Inc., Industry Protection Services, Inc., and International Private Security, all of which could use the acronym “IPS”; Beltran's Security & Investigation Agency, an El Paso company that Heard purchased and later reincorporated; and Superior Protection, Inc. (SPI). International Private Security and Beltran were later merged into SPI. There was evidence that Lambert handled payroll and accounting for Guardex, Probe, the various IPS entities, and Beltran. He apparently was also the CFO of SPI from 1999 to 2000, and he told an IRS agent that he remained a consultant for a period of time thereafter.

The Government alleged that over the course of eighteen years, Heard, Lambert, and other defendants conspired to defraud the United States out of millions of dollars in employment taxes withheld by Heard's security companies. Overall, the Government alleges that the companies failed to pay a substantial sum in employment taxes, totaling over $5 million. According to the Government, the conspirators opened and closed all of these corporations, changed company names, moved physical locations, used different versions of the company names, signed documents with fictitious names, and used mail drops to prevent the IRS from discovering the individuals operating these companies and collectingthe unpaid employment taxes. On appeal, neither Heard nor Lambert challenges the existence of a conspiracy to defraud the United States.

The Government presented evidence that Heard diverted funds from his corporations to finance his lavish lifestyle, including purchasing a steer at the Houston Livestock Show and Rodeo. There was evidence that Heard had his employees cash corporate checks, often signed using a stamp with a fictitious name made in the course of the conspiracy, and give the money to him. This behavior formed the basis of the two tax evasion charges. The Government put on evidence that Heard failed to report distributions from SPI in 2001 and 2003. The Government has noted evidence that Heard filed false tax returns in other years as well.

The Government has also alleged that Heard bribed a public official, Michael Czecholinski, an employee of Federal Protective Services who ensures compliance with government contracts. It alleged that Heard provided an airline ticket, lodging, the chance to play in a charity golf tournament, and future employment to Czecholinski in exchange for Czecholinski providing a favorable reference for SPI to a General Services Administration (GSA) contracting official and providing pre-signed cards indicating that Heard's security guards complied with government contracts.

After trial, Heard was sentenced to a total of 151 months in prison, three years of supervised release, and ordered to pay almost $9 million in restitution, jointly and severally with his wife, Janet Heard, who was also a defendant in the case, and Lambert. Lambert was sentenced to 51 months in prison, three years of supervised release, and was ordered to pay restitution of almost $2.5 million, for which he is jointly and severally liable with Heard.

II

Heard raises two challenges to his conviction for bribery of a public official. First, he argues that the evidence was insufficient to convict him of bribery because there was no evidence of a quid pro quo. He argues that the evidence was sufficient to convict him at most of providing an illegal gratuity to a public official. Second, he argues that the district court erred in admitting the lay opinion testimony of one of his former employees.

A

Heard was charged with both bribery of a public official in violation of 18 U.S.C. § 201(b)(1) and providing an illegal gratuity to a public official in violation of 18 U.S.C. § 201(c)(1). The bribery statute, § 201(b)(1), makes it a crime to “directly or indirectly, corruptly give[ ] ... anything of value to any public official ... with intent ... to influence any official act.” The illegal gratuity statute, § 201(c)(1), makes it a crime to “directly or indirectly give[ ] ... anything of value to any public official ... for or because of any official act performed or to be performed by such public official.” Bribery, in requiring that the defendant intend to influence an official act, therefore requires “a quid pro quo—a specific intent to give or receive something of value in exchange for an official act.” ¹ We have held, at least in the context of a conviction for honest-services fraud through bribery, that if a quid pro quo is required, it is not required that the parties to the bribe have identified a particular official act, but only that the Government “prove the ‘specific intent to give or receive something of value in exchange for an official act’ to be performed sometime in the future.” ² An illegal gratuity, on the other hand, does not require a quid pro quo because it does not require the intent to influence any official act and can take the form of “a reward for some future act that the public official will take (and may already have determined to take), or for a past act that he has already taken.” ³ An illegal gratuity still requires a link between something of value and a specific official act—it is not enough that the gratuity was given because of the official's office.⁴

Heard argues that his conviction for bribery should be reversed because there was insufficient evidence for the jury to find the requisite quid pro quo beyond a reasonable doubt. We review the denial of a motion for a judgment of acquittal de novo.⁵ “A motion for acquittal should be granted if the government fails to present evidence sufficient for a reasonable jury to have found that each essential element of the offense was established beyond a reasonable doubt.” ⁶ We evaluate the evidence in the light most favorable to the verdict.⁷

There was sufficient evidence here for a reasonable jury to convict Heard. There was evidence that while there were bids for government contracts pending on which Czecholinski was listed as a reference, Heard had one of his employees, William Lane, call Czecholinski to offer him a chance to play in a charity golf tournament. Czecholinski eventually accepted, and Heard paid for Czecholinski's travel and lodging expenses and invited him to play in a golf tournament with country singer Tracy Lawrence. Heard did the same thing a year later. During the time between the two golf trips, Czecholinski gave SPI a favorable recommendation on the pending contracts, but Lane testified that SPI was not deserving of Czecholinski's recommendations. The next year, Heard again paid for Czecholinski to travel to play in the golf tournament. Lane testified that he and Heard had previously discussed that Czecholinski could put in a good word for them, and that in Lane's opinion, by inviting Czecholinski to play in the golf tournament, they were trying to get a favorable recommendation. He said that he did not believe Czecholinski would have received anything if he were not able to make recommendations for future contracts, and Heard never paid for Lane's expenses for a golf tournament as he did for Czecholinski. Once Heard learned that he was under investigation, he falsely told a government agent that Czecholinski had been on a business trip to Houston at the time of the golf tournament, and Heard instructed Lane to tell Czecholinski to use this “cover story.”

Heard argues that the evidence of intent to influence Czecholinski is circumstantial, and that the evidence adduced could support an innocent explanation, such as the friendly relationship between Lane and Czecholinski. We see no reason why direct evidence is required. Indeed, “[t]he official and the payor need not state the quid pro quo in express terms, for otherwise the law's effect could be frustrated by knowing winks and nods.” ⁸ Furthermore, although the evidence adduced could support an innocent explanation, it does not compel that...