United States v. Nelson

• Decision Date: 13 March 2013
• Docket Number: No. 12–11066.,12–11066.
• Citation: 712 F.3d 498
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Tony Devaughn NELSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

712 F.3d 498

UNITED STATES of America, Plaintiff–Appellee,

v.Tony Devaughn NELSON, Defendant–Appellant.

No. 12–11066.

United States Court of Appeals,Eleventh Circuit.

March 13, 2013.

Susan Hollis Rothstein–Youakim, Robert E. O'Neill, U.S. Attys., Tampa, FL, Mark Devereaux, Bonnie Ames Glober, U.S. Attys., Mac D. Heavener, III, Asst. U.S. Atty., Jacksonville, FL, for Plaintiff–Appellee.

David Duncan, Emma Quinn–Judge, Zalkind, Duncan & Bernstein LLP, Boston, MA, Mark S. Barnett, Curtis Fallgatter, Fallgatter, Farmand & Catlin, PA, Jacksonville, FL, Harvey A. Silverglate, Harvey Silverglate, Cambridge, MA, for Defendant–Appellant.

John D. Cline, Law Office of John D. Cline, San Francisco, CA, for National Ass'n of Criminal Defense Lawyers, Amicus Curiae.

Appeal from the United States District Court for the Middle District of Florida.

Before WILSON and HILL, Circuit Judges, and HUCK,^* District Judge.

HUCK, District Judge:

Tony Nelson, a former member of the Jacksonville Port Authority's (JaxPort['s]) board of directors, was convicted in the Middle District of Florida for honest-services mail fraud under 18 U.S.C. §§ 1341 and 1346, federal funds bribery under 18 U.S.C. § 666(a)(1)(B), conspiracy to commit mail fraud and bribery under 18 U.S.C. § 371, and several other crimes predicated on these offenses. On appeal, he challenges his convictions on three grounds. First, Nelson argues that the fraud and bribery statutes under which he was convicted are unconstitutionally vague as applied in this case because they fail to describe the nature and scope of the fiduciary obligations owed by public officials to the public— i.e. they lack an “ascertainable standard” by which Nelson and the jury could have determined whether his conduct was unlawful. Second, Nelson argues that he is entitled to a new trial because the district court improperly instructed the jury on what constitutes a “bribe” for purposes of his honest-services and federal funds bribery charges. Finally, Nelson argues that the district court committed reversible error by admitting the testimony of JaxPort's director of procurement, Louis Naranjo, which he asserts allowed the jury to convict him on the basis of uncharged conduct.

Upon review of the parties' briefs and the record, and with the benefit of oral argument, we affirm.

I.

JaxPort is an independent agency and political subdivision of the State of Florida and is responsible for the development and maintenance of Jacksonville's public seaport terminals. The agency is governed by a seven-member, all-volunteer board. The Mayor of Jacksonville appoints four members, and the Governor of Florida appoints three others. The board elects a chairman, who leads the board. Board members serve four-year terms and may serve a maximum of two terms. JaxPort has a staff of approximately 150 employees and several officers, including a chief executive officer, who reports to the board.

Nelson was appointed to the board in 2001 by Jacksonville Mayor John Delaney and served as chairman of the board from March 2006 until September 2007. He remained a member of the board until resigning in 2008 amid allegations that he solicited and accepted bribes from one of JaxPort's private dredging contractors, Subaqueous Services, Inc. (“SSI”), and its owner, Lance Young. These allegations, which we summarize here, led to an FBI investigation and ultimately to this criminal action.¹

Nelson was introduced to Young in the fall of 2005 by another JaxPort board member, Marty Fiorentino, at Young's Jacksonville Jaguars luxury suite. At the time, Fiorentino, a Jacksonville attorney and lobbyist, was under contract with Young to lobby on behalf of SSI in the Jacksonville area. For these services, Young paid Fiorentino $5,000 per month. According to Nelson, Fiorentino told him that the City of Jacksonville's Deputy General Counsel and Co–Ethics Officer, Steven Rohan, advised Fiorentino that he could lobby on behalf of SSI so long as he abstained from voting on matters involving SSI or Young.

Following their initial meeting, Young and Nelson became friendly, speaking by telephone on a weekly basis and socializing regularly. Nelson was a frequent guest in Young's Jaguars suite, and whenever Young was in Jacksonville they would have dinner at Young's expense. Although they did not yet have a formal understanding that Nelson would help SSI with its business at JaxPort, Nelson offered Young advice on submitting bids for JaxPort projects. For example, Young testified that, in the fall of 2005, Nelson suggested that SSI include in its first bid proposal a provision for participation by “disadvantaged” contractors, which was supposed to improve the chances of SSI's bid being selected. Although JaxPort did not accept this initial bid, Nelson would credit the success of SSI's subsequent bids, at least in part, to this advice.

Around the same time, Nelson urged JaxPort staff to retain SSI for dredging work. Louis Naranjo, JaxPort's director of procurement, testified that in November 2005 JaxPort's chief financial officer, Ron Baker, asked Naranjo to attend a meeting with Nelson at Nelson's downtown Jacksonville office. ² According to Naranjo, Nelson complained about the performance of JaxPort's dredging contractor, SeaTech, and told Naranjo that he should cancel JaxPort's contract with the company. Naranjo testified that he responded by telling Nelson that he saw no reason to cancel the SeaTech contract and that, in any event, he did not have such authority. In response, Nelson told Naranjo that if Naranjo could not cancel the contract, Nelson would find someone else who could. Naranjo further testified that Nelson told him that SSI was “ready to go and could do this work.”

Meanwhile, Young grew frustrated because Fiorentino was, in Young's view, not doing enough to help SSI at JaxPort. Young testified that Fiorentino was “really good at introducing [him] to people” but “wasn't doing anything for [him]”—“there was no movement on [his] problem.” Young added that, in the summer of 2006, when he told Fiorentino he was not going to renew their agreement, Fiorentino suggested that he speak with Nelson, who by then was chairman of the JaxPort board.

According to Young, when he expressed to Nelson his disappointment with Fiorentino, Nelson responded that he was getting “twice as much” done for Young and SSI than Fiorentino ever did. Young further testified that Nelson told him that he “wanted to be on the payroll,” which Young understood to be a solicitation for a bribe.

After considering Nelson's request and discussing the matter with his state-wide lobbyist, Frank Bernadino, Young arranged to retain Nelson as a “consultant” through Bernadino's company, the Wren Group, at a rate of $8,500 per month. To avoid making payments directly to Nelson, Young paid Nelson's fees to Wren Group, which in turn paid Nelson through Nelson's company, Ja–Ash, Inc. Regular payments were made in this fashion from August 2006 through the summer of 2007, after which time, according to Young, he and Nelson agreed that Nelson would be paid through a deferred, lump-sum payment. According to Young, this new arrangement was put in place because SSI had to discontinue all lobbying activities in anticipation of the sale of SSI to Orion Marine Group, which left Young without a method of paying Nelson through Wren Group. Young told Nelson that he would be paid in full following the sale of SSI. In accordance with their agreement, Young gave Nelson a check for $50,000 in March 2008.

The testimony presented at trial reflects that, although Nelson never voted on an SSI contract while receiving payments from the company, he was frequently called upon by Young to help SSI with various other matters before JaxPort. Young testified, for example, that he asked Nelson for his assistance in persuading JaxPort to approve a change order to one of SSI's dredging contracts. According to Young, Nelson later reported that he made several phone calls to unspecified JaxPort staff members and assured Young that the change order would be approved. The change order, which was indeed approved in September 2007, added almost $150,000 of work to SSI's contract.

Young also testified that Nelson agreed to help SSI obtain early release of approximately $585,000 in “retainage” (a portion of the earned contract price withheld until project completion) under a contract with JaxPort. JaxPort's manager of contracts and administration, Elaine Varnot, corroborated this testimony, stating that she was instructed by JaxPort's director of finance and the project manager to release the retainage funds to SSI (through SSI's general contractor for the project), which she eventually did. Varnot added that, in her experience, the making of such an exception was unprecedented. Other examples of matters in which Nelson apparently intervened on SSI's behalf include instances where he requested that JaxPort increase the price of its contract with SSI to account for increased fuel costs (a request that was ultimately denied) and where he requested that SSI be paid on particular claims.

Nelson's relationship with Young and SSI did not go unnoticed. In response to complaints from other JaxPort vendors about the alleged conflict of interest, in February 2007, Baker called a private meeting with JaxPort staff to discuss the Nelson–SSI relationship. At that meeting, Baker directed JaxPort's ethics officer, Linda Williams, to conduct an investigation. That same day, Nelson met with the City of Jacksonville's general counsel, Cindy Laquidara, to discuss the accusations. Laquidara testified that Nelson told her that he and SSI once submitted a joint bid for a project through the United States Army Corps of Engineers (“Corps”), but that the bid failed. Nelson did not disclose that he was also receiving payments from SSI for “consulting” services. Based on these representations, Laquidara sent an email to Nelson advising...