United States v. Morgan

Decision Date06 November 2015
Docket NumberNo. 13-6052,No. 13-6025,13-6025,13-6052
PartiesUNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant, v. MICHAEL STEVEN MORGAN, Defendant-Appellant/Cross-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

(W.D. Okla.)

ORDER AND JUDGMENT*

Before HARTZ, O'BRIEN, and HOLMES, Circuit Judges.

Michael Steven Morgan, an attorney and politician, appeals from a bribery conviction. See 18 U.S.C. § 666. As he would have it, the evidence was insufficient to convict and the jury was not properly instructed on specific intent. Not only that, but he should have a new trial because the government failed to disclose tacit agreements with awitness. The government's cross-appeal claims Morgan's sentence (no incarceration; only probation) is substantively unreasonable given the nature of his crime. We affirm the conviction but reverse and remand for resentencing.

I. Trial Evidence

Morgan, a practicing attorney, was elected to the Oklahoma State Senate in 1996 and remained a senator until he was term-limited in 2008.1 See Okla. Const., art. V, § 17A (establishing a twelve-year term limit for state legislators). He served as the chairman of the appropriations committee in 2004 and became President Pro Tempore (Pro Tem)2 of the Senate in March 2005.3 The bribery occurred while he occupied that august position.

In 2005 and 2006, members of the Oklahoma Assisted Living Association ("OKALA") became unhappy with the Oklahoma Department of Health's (ODH)enforcement activities. It was removing residents from assisted living facilities to nursing homes because the assisted living facilities were unable to provide the necessary level of care. Sam Crosby, part owner of OKALA member Silver Oak Senior Living, was extremely vocal regarding his objections to the ODH's efforts. He claimed Silver Oak was targeted by the ODH and repeatedly had to deal with what he perceived as unfair civil fines. He hired several law firms and lawyers to assist with these disputes. A lawyer in one of the firms specialized in dealing with the ODH.

In May 2006, Crosby hired lobbyist Benny Vanatta to promote Silver Oak's position with the legislature. Vanatta immediately arranged a meeting with Crosby and Morgan in Morgan's office at the Capitol. According to Crosby's testimony, they met for "about an hour to an hour and a half." (Morgan's App'x, Vol. 5 at 1904.) His testimony continued as follows. I told "them all my troubles and the fights with the [ODH] and everything and that I needed some help. I didn't care whether it was a phone call, legislation, meetings, whatever, I just needed some help to get them off my back." (Id.) About forty-five minutes into the meeting, Vanatta left to get coffee. While Vanatta was gone, Morgan told Crosby, "This is the way it works. You pay me a $1,000 a month retainer." (Id.) Morgan assured Crosby the arrangement was legal. Crosby asked, "Well, do I maybe get some traffic tickets or something for that [amount]?"4 (Id.) Morgan told Crosby to call his law firm and it will "help you with [the traffic tickets]."(Id.) In the end, even though it "[d]idn't sound right" to Crosby, Silver Oak made twelve $1,000 payments to Morgan from July 2006 until July 2007.5 (Id.)

Shortly after that meeting, Dorya Huser, chief of the ODH's long-term care division, was contacted by her supervisor, Rocky McElvany. McElvany told Huser they "had a request from a legislator to come talk about the rules." (Morgan's App'x, Vol. 5 at 1949.) As a result, Vanatta, Crosby, and his partner Eric Lindsey met with Huser and McElvany in Morgan's conference room at the Capitol (Morgan was present, according to Crosby's testimony. Morgan said he did not attend the meeting but did stop in for a moment to say hello to the participants). The meeting did not go well. Huser testified to the encounter being "extremely contentious." (Id. at 1950.) A few weeks later, on June 15, 2006, Crosby e-mailed a letter to numerous House and Senate members complaining about the ODH proposing regulations "that would limit the [living] choice[s] of seniors" and improperly interpreting existing regulations to the detriment of seniors. (Id., Vol. 7 at 2638.) He accused the ODH of having "a hidden agenda to destroy the Assisted Living concept and industry." (Id.)

That same month, at Crosby's direction, Belinda Arguello, Silver Oak's director of compliance, began sending e-mails to Morgan6 reporting Silver Oak's ongoingdifficulties with the ODH. She attached communications between Silver Oak and the ODH. When Morgan had not substantively responded by August, Crosby suggested an e-mail be sent from his e-mail address to ensure Morgan had received the information. There still was no response. The only communication between Crosby and Morgan after the meeting in May 2006 was a visit from Morgan to Crosby's office seeking a campaign contribution for another candidate. Crosby also said he attempted to contact Morgan's law office several times concerning traffic tickets. His testimony was clear enough: Morgan never assisted Silver Oak as a lawyer in dealing with the ODH or any other matter, but he found another way to be helpful.

In January 2007, Morgan authored and introduced Senate Bill 738 (S.B. 738). It provided:

If a resident in an assisted living center is receiving care in addition to the room, board, and personal care specified in the Continuum of Care and Assisted Living Act as determined by a physician, the State Department of Health shall not order the removal of the resident from the assisted living center if the following conditions are met:
1. The resident, resident's family or legal representative, the resident's physician, and the owner, operator or governing body of the assisted living center consent to the resident's continued stay in the assisted living center; and
2. The owner, operator, or governing body of the assisted living center commits to assuring that the resident receives necessary additional services.

(Morgan's App'x, Vol. 7 at 2680-81.) Huser concluded the purpose of Morgan's bill "was to tell the [ODH] to leave assisted living facilities alone and not be writing these level-of-care deficiencies." (Id., Vol. 5 at 1953.) Mary Brinkley, the executive director of an association of aging services providers, testified about her choice not to lobby against the bill in the Senate because Morgan had introduced it—"[I]t's really hard to go up against leadership and to change a bill or to make any amendment to it." (Id. at 1879.)

After the bill passed unanimously in the Senate, it was amended in the House to provide more detail.7 But even in its final version, S.B. 738 favorably addressed many of Crosby's concerns.

The Governor signed S.B. 738 into law on June 4, 2007. Silver Oak's last monthly payment to Morgan was on July 20, 2007. On August 13, Crosby sent Morgan a letter thanking him for his "assistance to our program" and terminating his retainer because Silver Oak had "elected to limit [its] political involvement for a while."8 (Morgan's App'x, Vol. 7 at 2701.)

II. Procedural History

On March 30, 2011, a grand jury indicted Morgan with respect to three clients who paid him monthly retainer fees. Counts 1 through 29 related to fees ($141,664.52) he received from Dilworth Development, a small landfill company in Northern Oklahoma, from April 2006 to May 2008. Count 1 alleged he conspired with attorney N. Martin Stringer and lobbyist William Andrew Skeith to accept the fees in exchange for his legislative influence on behalf of Dilworth. Counts 2 through 29 alleged extortion in violation of 18 U.S.C. § 1951(a) and mail fraud (honest services) in violation of 18 U.S.C. §§ 1341 & 1346.

Counts 30 through 62 had to do with fees ($250,000) Morgan collected between April 2006 and December 2008 from Tenaska, Inc., a Nebraska energy corporation with business interests in Oklahoma. These counts alleged Morgan conspired with Stringer and Skeith to accept the fees in return for legislative influence (Count 30) and engaged in mail fraud (honest services) in violation of 18 U.S.C. §§ 1341 & 1346 (Counts 31-62).

Count 63 charged bribery under 18 U.S.C. § 666(a)(1)(B) based on Morgan's receipt of $12,000 from Silver Oak. Morgan was the only defendant named in the Silver Oak count.

After the government's evidence was complete and it rested, the district court dismissed many of the charges, including Count 30—the conspiracy count relating toTenaska—as to Morgan.9 After a trial lasting over two weeks, the jury convicted Morgan of bribery in connection with Silver Oak (Count 63). It was unable to reach a verdict on Counts 2 through 29—the extortion and mail fraud counts relating to Dilworth. It acquitted Morgan on Count 1—the conspiracy count relating to Dilworth—and the mail fraud charges relating to Tenaska (Counts 31 through 62). The court denied Morgan's post-trial motion for judgment of acquittal on Count 63 and his subsequent motion for a new trial.

III. Morgan's Direct Appeal
A. Sufficiency of the Evidence

"Whether the government presented sufficient evidence to support a conviction is a legal question we review de novo." United States v. Hernandez, 509 F.3d 1290, 1295 (10th Cir. 2007) (quotations omitted). We "ask[] only whether, taking the evidence—both direct and circumstantial, together with reasonable inferences to be drawn therefrom—in the light most favorable to the government, a reasonable jury could find the defendant guilty beyond a reasonable doubt." United States v. Baldridge, 559 F.3d 1126, 1134 (10th Cir. 2009) (quotations omitted). "We will not reverse a conviction unless no rational trier of fact could have reached the disputed verdict. The evidencenecessary to support a verdict need not conclusively exclude every other reasonable hypothesis and need not negate all possibilities except guilt." Id. (quotations omitted).

To establish a violation of 18 U.S.C. 666(a)(1)(B), the government must, of course, prove all elements of the offense beyond a...

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