United States v. McLean

• Decision Date: 24 September 2015
• Docket Number: No. 14–10061.,14–10061.
• Citation: 802 F.3d 1228
• Parties: UNITED STATES of America, Plaintiff–Appellant–Cross–Appellee, v. David McLEAN, Defendant–Appellee–Cross–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

802 F.3d 1228

UNITED STATES of America, Plaintiff–Appellant–Cross–Appellee

v.David McLEAN, Defendant–Appellee–Cross–Appellant.

No. 14–10061.

United States Court of Appeals, Eleventh Circuit.

Sept. 24, 2015.

Kathleen Mary Salyer, Madeleine R. Shirley, Wifredo A. Ferrer, U.S. Attorney's Office, Miami, FL, Neil Karadbil, U.S. Attorney's Office, Fort Lauderdale, FL, for Plaintiff–Appellant–Cross–Appellee.

Clarence Edward McGee, Jr., McGee & Huskey, PA, Fort Lauderdale, FL, for Defendant–Appellee–Cross–Appellant.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:13–cr–60068–JIC–1.

Before MARCUS and WILSON, Circuit Judges, and SCHLESINGER,^* District Judge.

Opinion

SCHLESINGER, District Judge:

This appeal presents us with two challenges. First, we must address the limits of a federal criminal statute to ensure the statute comports with the Constitution and that it does not invade the domain of the States' police power.

No federal criminal common law exists. This proposition was “long since settled” not twenty-five years following the ratification of the United States Constitution. United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). Congress—not the courts—crafts federal crimes by delineating the elements and prescribing punishment.See United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.Ed. 37 (1820) (noting “[T]he power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment.”); Liparota v. United States, 471 U.S. 419, 424, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (explaining federal crimes are “solely creatures of statute”).

Over recent generations the federal criminal code has burgeoned, leading some writers to characterize the trend as the federalization of crime. See Susan A. Ehrlich, The Increasing Federalization of Crime, 32 Ariz. St. L.J. 825 (2000) ; Edwin Meese, III, Big Brother on the Beat: The Expanding Federalization of Crime, 1 Tex. Rev. L. & Pol. 1 (1997). Despite Congress' increasing role in regulating criminal activity, States traditionally have “undertake[n] criminal prosecutions” springing from their “power and authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment,” Heath v. Alabama, 474 U.S. 82, 89, 106 S.Ct. 433, 88 L.Ed.2d 387 (1985) —such is the internal tension of our federalist system. While both sovereigns have the authority to regulate criminal conduct within their spheres of influence, each sovereign must guard against encroachment upon the other's authority.

The Constitution provides that limitation on Congress. Congress must find permission to create federal criminal laws in the Constitution. Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004) ; United States v. Edgar, 304 F.3d 1320 (11th Cir.2002). This case involves the claimed use of federal monies and the mishandling thereof as the constitutional basis for federal criminal regulation.

To protect against the infringement on the inherent powers of the states by federalizing traditional state offenses, the government is required to prove beyond a reasonable doubt each element of a criminal offense, United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), and the failure to do so is fatal to the case. In addition to other purposes, this burden safeguards the accused's constitutional rights, ensures the government does not overreach by prosecuting actions that do not comport with the statutory language, and guarantees that federal crimes remain distinct from state crimes.

In this case, we must scrutinize the evidence to ensure that the government is not prosecuting an act of state bribery. To be convicted of the federal crime of bribery in programs receiving federal funds, Congress has prescribed that the government must prove beyond a reasonable doubt that a corrupt defendant worked for a state entity “which receive[d] (1) more than $10,000 in federal funds [and] (2) in connection with programs defined by a sufficiently comprehensive ‘structure, operation, and purpose’ to merit characterization of the funds as benefits under § 666(b).” Edgar, 304 F.3d at 1327.

In addition to our federalism concerns, we are mindful that the Supreme Court recently cautioned against federal criminal statutes being read too expansively. See, e.g., Yates v. United States, ––– U.S. ––––, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015) (concluding the term “tangible object” defined within the Sarbanes–Oxley Act of 2002, legislation designed to restore confidence in financial markets, did not apply to the undersized red grouper that a commercial fishing vessel's captain threw overboard).

Second, we are called upon to determine if the government presented sufficient evidence to prove each of the elements of the charged offenses. Importantly, we are not called upon to pass judgment on the character of David McLean. We are, however, reminded of the words of John Adams, a Founding Father and second President, who once wrote, “But if Virtue was to be rewarded with Wealth it would not be Virtue. If Virtue was to be rewarded with Fame, it would not be Virtue of the sublimest Kind.” Letter from John Adams to Abigail Adams, (Dec. 2 1778), available at http://www.masshist.org/digitaladams/archive/popup?id=L17781202ja & page=L17781202ja—3.

The phrase “public service for private gain” encapsulated the government's case so well that it began opening statements and closing argument with variations of it. Ad hominem attacks, irrespective of how effective they may be, cannot obfuscate the requirement that the government must prove its case beyond a reasonable doubt. While this Court, and even John Adams, might have concurred with the government's characterization of McLean, in order to obtain a conviction the government must present evidence as to each element of an offense—and that is precisely what it failed to do here.

I. INTRODUCTION

On August 15, 2013, David McLean was charged in a superseding indictment with three counts of bribery in programs receiving federal funds, in violation of 18 U.S.C. § 666(a)(1)(B) and (2). Count One charged McLean with accepting $1,000 in U.S. currency and a release for $8,000 past due rent in connection with the awarding of a Margate occupational license. Count Two alleged that “on or about November 2, 2012,” McLean,

being an agent of Margate, to wit, a City Commissioner of Margate, Florida, did knowingly and corruptly solicit, demand, accept and agree to accept anything of value from a person, that is, approximately $3,000 in United States currency, intending to be influenced and rewarded in connection with a transaction and series of transactions of Margate involving $5,000 or more, that is, a $25,000 MCRA construction grant.

All in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2.

In Count Three, the Government alleged that “on or about January 30, 2013,” McLean,

being an agent of Margate, to wit, a City Commissioner of Margate, Florida, did knowingly and corruptly solicit, demand, accept and agree to accept anything of value from a person, that is, approximately $2,000 in United States currency, intending to be influenced and rewarded in connection with a transaction and series of transactions of Margate involving $5,000 or more, that is, a $25,000 MCRA construction grant.

All in violation of Title 18, United States Code, Sections 666(a)(1)(B) and 2.

Following a jury trial, McLean was acquitted on Count One and convicted on Counts Two and Three.

At the conclusion of the trial, McLean renewed his Motion for Judgment of Acquittal and filed a Motion for New Trial. Twenty-one days later, beyond the fourteen-day deadline, the government responded. McLean moved to strike the government's untimely response and sought an Order granting McLean's motion by default.

The District Court, on December 5, 2013, denied the Motions to Strike and for a New Trial, but granted McLean's Renewed Motion for Judgment of Acquittal. The District Court concluded that while the government introduced adequate evidence that the Margate Community Redevelopment Agency (“MCRA”) received benefits from a federal program, the government failed to establish that those benefits were received within the timeframe established in the superseding indictment.

II. FACTS

McLean served as a Commissioner for the City of Margate, Florida (“City”), between 2004 and 2013. Each City Commissioner simultaneously served on the board of the MCRA. The MCRA is a component of the City with a purpose to promote the physical and economic development of the City. Relevant here, MCRA's principal activity is to award matching grants to property owners who improve their properties by construction, landscaping, or other design projects.

In addition to serving as a Commissioner, McLean was the proprietor of “Dave's Tiki Bar.” The bar was located in a building in a shopping center owned by the government's cooperating witness, Lutchman “Chris” Singh. In addition to owning the shopping center, Singh owned an automobile alarm and stereo installation business in the center.

Once McLean rented the building from Singh around July 2011, he stopped paying Singh the rent he owed for the bar. Singh was afraid to initiate eviction proceedings against McLean, because he worried McLean would use his influence or position to make things difficult for Singh's business. In November 2011, Singh took his concerns to the FBI. The FBI instructed Singh to begin recording his conversations with McLean, and Singh began doing so in early 2012.

In January 2012, in exchange for a reduction in past-due rent, McLean agreed to “help[ ] make the process smoother” for Singh to obtain an auto repair license from the City. The license costs $125, but Singh explained that, in his view, having the license added between $60,000 and $100,000 of value to his business....