United States v. Roberson

• Decision Date: 27 May 2021
• Docket Number: No. 18-14654,18-14654
• Citation: 998 F.3d 1237
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Lynn ROBERSON, Joel Iverson Gilbert, Defendants-Appellants
• Court: U.S. Court of Appeals — Eleventh Circuit

998 F.3d 1237

UNITED STATES of America, Plaintiff-Appellee,

v.David Lynn ROBERSON, Joel Iverson Gilbert, Defendants-Appellants,

No. 18-14654

United States Court of Appeals, Eleventh Circuit.

May 27, 2021

Michael B. Billingsley, Praveen S. Krishna, U.S. Attorney Service - Northern District of Alabama, U.S. Attorney's Office, Birmingham, AL, George A. Martin, Jr., U.S. Attorney's Office, Mobile, AL, for Plaintiff-Appellee.

Henry W. Asbill, Buckley, LLP, Anthony J. Dick, Barbara Mack Harding, Jacob Roth, Jones Day, Washington, DC, Brett M. Bloomston, Bloomston & Basgier, Birmingham, AL, David Holmes Bouchard, Finch McCranie, LLP, Atlanta, GA, for Defendant-Appellant David Lynn Roberson.

Jackson Roger Sharman, III, Jeffrey Paul Doss, Brandon K. Essig, Lightfoot Franklin & White, LLC, Birmingham, AL, for Defendant-Appellant Joel Iverson Gilbert.

Lucas M. Walker, Jeffrey A. Lamken, MoloLamken, LLP, Washington, DC, Lisa W. Bohl, MoloLamken, LLP, Chicago, IL, for Amicus Curiae National Association of Criminal Defense Lawyers.

Before WILSON and BRANCH, Circuit Judges, and RESTANI,^* Judge.

RESTANI, Judge:

The case involves the Defendants-Appellants’ concealed payments of hundreds of thousands of dollars to an Alabama Representative through his charitable foundation in exchange for "advocacy" and "community outreach" intended to undermine the Environmental Protection Agency's ("EPA") efforts to clean up a Superfund site. The Defendants-Appellants were convicted of bribery under 18 U.S.C. § 666(a)(2), among other charges, following a month-long trial with numerous witnesses, including the Representative himself, and hundreds of exhibits. Defendants-Appellants claim, inter alia , that the convictions should be overturned because no reasonable jury could find that the Representative committed an "official act," an element required of a different flavor of federal bribery– 18 U.S.C. § 201. The court concludes that the district court was correct not to equate these two federal statutes and that the Appellants’ remaining arguments regarding the jury instructions and the district court's decision not to sever the Appellants’ trial are unavailing. The judgments of conviction are affirmed.

BACKGROUND

Joel Gilbert ("Gilbert"), a partner at Balch & Bingham LLP ("Balch"), and David Roberson ("Roberson"), a lobbyist and Vice-President of Governmental Affairs at Drummond Company ("Drummond"), appeal their guilty verdicts following a joint jury trial for conspiracy, 18 U.S.C. § 371 ; bribery (aiding and abetting), id. at §§ 2, 666(a)(2) ; honest services wire fraud (aiding and abetting), id. at §§ 2, 1343, 1346 ; and money laundering conspiracy, id. at § 1956(h). Gilbert and Roberson were involved in a scheme to thwart the EPA's efforts to expand the geographical area of the 35^th Avenue Superfund site ("35^th Avenue site") and the EPA's proposed addition of the site to the National Priorities List ("NPL") by paying Alabama Representative Oliver Robinson ("Representative Robinson") to act counter to these efforts.¹ In particular, the government highlighted three actions by Representative Robinson as violative of 18 U.S.C. § 666 : (1) Representative Robinson attended a local EPA meeting with talking points about the Superfund site and its potential expansion, prepared by Gilbert, (2) Representative Robinson requested to attend and spoke at a meeting of the Alabama Environmental Management Commission ("AEMC") to promote Drummond's position against the EPA, and (3) Representative Robinson voted a resolution out of the Alabama House of Representative's Rules Committee, which was drafted by Gilbert, opposing the EPA's activities in Alabama.

The 35^th Avenue site is in North Birmingham, Alabama. Prior to the events at issue, the EPA established the 35th Avenue site and found the Walter Coke Company responsible for the pollution. In 2013, however, the EPA sent letters to five companies, including ABC Coke, a subsidiary of Drummond, naming those five companies as additional potentially responsible parties ("PRP") for the site's soil contamination. In 2014, following a petition by a local environmental group, the Greater Birmingham Alliance to Stop Pollution ("GASP"), EPA Region 4 in Atlanta began to consider whether the site should be expanded into nearby Tarrant, where ABC Coke is located. The EPA also proposed adding the 35^th Avenue site to the National Priorities List ("NPL"), which would allow access to additional federal funds for the cleanup.

To add a site to the NPL, the EPA was required to reach an agreement with the State of Alabama to assure the provision of "all future maintenance of the removal and remedial actions" for the site, "assure the availability of a hazardous waste disposal facility," and pay for, or otherwise assure payment of, ten percent of the cost of the cleanup. See 42 U.S.C. § 9604(c)(3). The Alabama Governor at that time, Robert Bentley, delegated the decision on whether to reach an agreement with the EPA to the Alabama Department of Environmental Management ("ADEM"). Although ADEM was the initial decisionmaker on this issue, the AEMC, a body that hears regulatory appeals from ADEM, selects the director of ADEM, implements applicable rules and regulations, and can make recommendations to ADEM, held a hearing attended by the ADEM director. Ultimately, the Alabama Legislature would be required to appropriate any money allocated from the State, if the site was to be listed on the NPL. See 42 U.S.C. § 9604(c)(3).

Drummond, through Roberson, undertook efforts to hamper the EPA's attempts to expand the site, add it to the NPL, and find ABC Coke responsible for the cleanup costs. These efforts included retaining Balch, and its partner Gilbert, to represent ABC Coke. Using Roberson's preexisting lobbying relationship with Representative Robinson, Gilbert and Roberson enlisted him to help run a "community outreach program" aimed at garnering public support for Drummond's position.² In February 2015, Gilbert and Representative Robinson signed an agreement, which established a consulting relationship between Balch and the Oliver Robinson Foundation Inc. ("the Foundation" or "Robinson Foundation"),³ retroactively effective to December 1, 2014, when Representative Robinson first met with the EPA.⁴ The Foundation Contract, which appears to be largely boilerplate, required Representative Robinson to abide by all applicable laws and ethical rules. As indicated above, three actions undertaken by Representative Robinson, however, resulted in Roberson and Gilbert's indictment on federal charges.

First, in December 2014, Representative Robinson attended an EPA meeting about its "Make a Visible Difference" campaign with talking points prepared by Gilbert about the 35^th Avenue site. Prior to the meeting, Representative Robinson informed Gilbert that he would be meeting with the EPA, which led to Gilbert contacting Roberson, who then approved the request for $7,000 a month for the Foundation, all in the span of a few short hours. Although some of the comments Representative Robinson made at the meeting were seemingly innocuous, others at best displayed a pro-business stance and at worst telegraphed to the EPA that the local business community, and potentially local government, were ready to stymie the EPA's 35^th Avenue site efforts.⁵ Without informing the EPA officials, Representation Robinson recorded audio of the meeting on his iPhone and then sent a copy to Gilbert who forwarded it to Roberson.⁶

Second, Representative Robinson spoke at a public meeting of the AEMC after Gilbert drafted a letter on his behalf requesting permission to speak. Representative Robinson then met with Roberson and Gilbert to discuss the meeting and strategize. The Foundation Contract was signed on February 16, 2015, a few days before the meeting. Representative Robinson then attended the AEMC meeting as a local representative and spoke to the AEMC and an audience including the director of the ADEM, Lance LeFleur ("LeFleur"). Representative Robinson expressed concern regarding the EPA's efforts in his legislative district and sought "answers from [the AEMC] – or the ADEM." Representative Robinson remarked that he did not think expansion of the 35th Avenue site was supported by scientific evidence, that he did not think the area should be listed as a Superfund site or on the NPL, and that finding additional companies liable for the cleanup would harm residents given the "decades of litigation that will occur." At no point did Representative Robinson disclose his affiliation with Drummond, Balch, or the Appellants. Following the meeting, at the behest of Roberson, Representative Robinson sent LeFleur a letter drafted by Gilbert asking for information regarding LeFleur's communications with the EPA and other public officials about the 35^th Avenue site.

Third, in May 2015, Representative Robinson helped vote a resolution out of the House Rules Committee, drafted by Gilbert, entitled "Urging Increased Oversight of and Opposition to the EPA's Activities in Alabama" ("SJR-97").⁷ As indicated by Gilbert's timesheets, he met with Roberson and Representative Robinson the same day that he drafted the resolution. The resolution described EPA action in the area, in particular regarding the 35^th Avenue site, stated that the EPA was operating on the basis of faulty science and was working against ADEM, urged the EPA to reconsider its actions, and asked that ADEM and the Alabama Attorney General "combat the EPA's overreach." The Resolution eventually passed both houses of the Legislature and was signed by the Governor.

Representative Robinson pleaded guilty to his role in the scheme and testified to the events outlined above at Roberson and Gilbert's trial. Representative Robinson's testimony, along with other evidence, led the jury to convict Roberson and Gilbert on all counts.⁸

JURISDICTION & STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291 of an appeal of a final...