United States v. White

• Decision Date: 29 November 2011
• Docket Number: No. 10–13654.,10–13654.
• Citation: 23 Fla. L. Weekly Fed. C 601,663 F.3d 1207
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gary L. WHITE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

23 Fla. L. Weekly Fed. C 601

663 F.3d 1207

UNITED STATES of America, Plaintiff–Appellee,

v.Gary L. WHITE, Defendant–Appellant.

No. 10–13654.

United States Court of Appeals, Eleventh Circuit.

Nov. 29, 2011.

Ramona C. Albin, James Dennis Ingram, J. Patton Meadows, Joyce White Vance, Birmingham, AL, for Plaintiff–Appellee.

Gary L. White, Edgefield, SC, pro se.

Appeal from the United States District Court for the Northern District of Alabama.Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,^* District Judge.CARNES, Circuit Judge:

“Kleptocracy” is a term used to describe “[a] government characterized by rampant greed and corruption.” The American Heritage Dictionary of the English Language 968 (4th ed.2000); see also New Oxford American Dictionary 963 (3d ed.2010); Random House Webster's College Dictionary 724 (2d ed.1998). To that definition dictionaries might add, as a helpful illustration: “See, for example, Alabama's Jefferson County Commission in the period from 1998 to 2008.” During those years, five members or former members of the commission that governs Alabama's most populous county committed crimes involving their “service” in office for which they were later convicted in federal court. And the commission has only five members. One of those five former commissioners who was convicted did not appeal.¹ We have affirmed the convictions of three others who did.² This is the appeal of the fifth one.

I.

Jefferson County consists of five districts, each represented by an elected commissioner who serves as the head of a county department. Gary White was elected as a Jefferson County commissioner for four four-year terms beginning in 1990. He held different positions at various times, including president of the commission and head of its General Services Department and of its Road and Transportation Department. So far as the record shows, however, it was not until White became the commissioner in charge of the Environmental Services Department in November 2002 that his corrupt conduct commenced.

His corruption, like that of some of his fellow commissioners, grew out of the county's sewage problem. In 1996 Jefferson County and the United States Environmental Protection Agency entered into a consent decree, settling a Clean Water Act lawsuit over untreated waste being released into the county's rivers and streams. The consent decree required the county to fix its sewer system, which was a mess. The cost of doing so was approximately $3 billion.

The county hired engineering firms to design the necessary repair-and-renovation projects. The Environmental Services Department supervised the process of hiring those engineering firms. The design contracts were let on a no-bid basis, so typically either a commissioner or staff member selected the firm that would receive the contract. The staff then determined the scope of the work under the contract and negotiated pricing with the contractor. After the staff and the engineering firm agreed on the contract's terms, it would go to the director of the Environmental Services Department for approval and then to the county commissioner in charge of the department. If the commissioner approved the contract, it then went to the environmental services committee, which consisted of that commissioner and two others. They would decide whether to send the contract to the full commission, consisting of the three of them and the two other commissioners, for final approval.

The sewer system reconstruction project was lucrative for U.S. Infrastructure, an engineering firm owned by Sohan Singh. From 1996 to 2005, Singh's company and Jefferson County entered into approximately $50 million worth of contracts involving the sewer system work. Each contract required the county to pay U.S. Infrastructure for its expenses in performing the work plus a professional fee.

In getting contracts with Jefferson County, U.S. Infrastructure had a competitive advantage—bribes that Singh and others paid. Singh and Edward Key, who was a U.S. Infrastructure vice president, began bribing the county's officials in 1999 in exchange for contracts. See United States v. U.S. Infrastructure, Inc., 576 F.3d 1195, 1202–03 (11th Cir.2009). One of the officials who was bribed was Chris McNair, a former commissioner in charge of the Environmental Services Department.³ Id. at 1203–06.

When White took over the duties of supervising the Environmental Services Department in November 2002, Singh did not want to squander the competitive advantage his company had gained by bribing McNair. So, Singh began meeting with White in 2003 and continued doing so through early 2005, which roughly coincided with the period White supervised the Environmental Services Department. At their meetings Singh gave White stacks of $100 bills in envelopes, with the amounts ranging from $1,000 to $4,000 each time. All told, Singh paid White at least $22,000 in cash between 2003 and 2005. Singh got what he paid for. From April 2003 to January 2005, while White was in charge of the Environmental Services Department, the county entered into 48 new contracts with U.S. Infrastructure, paying the firm $1,107,755.55 in professional fees.

A federal grand jury issued a superseding indictment that charged White with one count of conspiracy in violation 18 U.S.C. § 371 (Count 1), alleging that he conspired with Singh to commit federal-funds bribery in violation of 18 U.S.C. § 666(a)–(b), and with eight substantive counts of federal-funds bribery (Counts 2–9) for his acceptance of Singh's cash. It also charged White with one count of conspiracy (Count 10) and one count of federal-funds bribery (Count 11) for his acceptance of free architectural plans and hunting trips from an architect whose firm had entered into contracts with Jefferson County. Finally, the indictment included a forfeiture count (Count 12). See 18 U.S.C. § 981(a)(1)(C); 28 U.S.C. § 2461(c).

At trial White moved for a judgment of acquittal on all counts after the close of the government's case-in-chief. The district court denied his motion as to Counts 1–9 and 12 but granted it on Counts 10 and 11—the conspiracy and federal-funds bribery charges arising out of the free architectural plans and hunting trips. White did not present evidence, and the jury found him guilty on counts 1–9.⁴

The presentence investigation report recommended a guidelines range that was calculated based on White's conspiracy conviction. It did so because the base offense level for conspiracy is the base offense level of the substantive offense—here, federal-funds bribery—“plus any adjustments ... for any intended offense conduct that can be established with reasonable certainty.” United States Sentencing Guidelines § 2X1.1(a) (Nov.2009). The base offense level for federal-funds bribery generally is 12 under § 2C1.1(a)(2), but because White was a “public official” the base offense level was increased to 14. See id. § 2C1.1(a)(1).

The PSR added 2 levels under § 2C1.1(b)(1) because the conspiracy involved more than one bribe and added 4 more levels under § 2C1.1(b)(3) because White was an “elected public official.” Finally, the PSR added 16 levels under § 2C1.1(b)(2), determining that U.S. Infrastructure received $1,395,552 in professional fees on its 48 contracts between April 2003 and January 2005 and that those fees were “received in return for” Singh's cash payments to White. All of the adjustments added up to a total offense level of 36, which, combined with White's criminal history category of I, yielded a guidelines range of 188 to 235 months imprisonment. The maximum statutory prison term was 5 years for the conspiracy conviction, see 18 U.S.C. § 371, and 10 years for each federal-funds bribery conviction, see id. § 666(a).

White objected to the 4–level elected-public-official increase and to the 16–level benefit-of-the-bribe increase. At the sentence hearing, he asserted that the 4–level increase would be impermissible double counting because his base offense level was already being increased by 2 levels because he was a “public official.” The court overruled that objection. About the 16–level increase, White did not contest the fact that U.S. Infrastructure received more than $1,000,000 in professional fees from the 48 contracts at issue. He did argue, though, that those fees were not in return for the envelopes full of cash that Singh gave him because most, if not all, of the contracts would have been awarded to the company anyway.

The government responded that the 16–level increase was proper because no Environmental Services Department contract was automatically awarded but instead had to be initially approved by people who were under White's direct supervision. It further contended that, given White's position as a commissioner and head of the department, he could have “put [his] foot down” and stopped U.S. Infrastructure from receiving a contract. The district court agreed with the government and overruled White's objection.

The court adopted the PSR as its findings, except that it decreased the amount of U.S. Infrastructure's professional fees from the $1,395,552 recommended in the PSR to $1,107,755.55. White requested a below-the-guidelines sentence, arguing that he (otherwise?) had good character and stressing the relatively low sentences of others convicted of corruption, his poor medical condition, and “given his age [63] is what it is.” The government requested a within-the-guidelines sentence based on the seriousness of White's public corruption, his lack of remorse, the need to deter corruption by public officials, and the widespread problem of corruption in Jefferson County. The district court sentenced White to 60 months imprisonment for the conspiracy conviction and 120 months imprisonment for each federal-funds bribery conviction, with all of the sentences to run concurrently. White's total prison sentence was 120 months, below the recommended guidelines range of 188 to...