In U.S. v. McNair, No. 07-11476 (May 12, 2010), in a 167-page opinion, the Court affirmed multiple bribery convictions of government officials and private contractors involved in sewer projects in Jefferson County, Alabama.
The Court rejected a challenge to the jury instructions’ failure to instruct that a bribery conviction requires a showing of a quid pro quo, i.e., that a specific thing was exchanged for a specific act. The Court noted that the bribery statute, 18 U.S.C. § 666, does not contain the expression “quid pro quo. Further, the statute’s requirement of a “corrupt” mens rea suffices to circumscribe criminal liability, as it requires a dishonest goal, or unlawful means. Because the statute applies not only to specific actual acts, but to possible future acts, “the quo need not be specific at the time of the quid.” An instruction that requires a “corrupt” state of mind sufficiently excludes the possibility that the exchange was legitimately designed to foster “goodwill.”
The Court rejected sufficiency of the evidence challenges to the convictions, pointing out that the contractors’ provision of free construction work on the homes and offices of the government officials coincided with the award of sewer contracts, and noting the pains to which the defendants went to cover up their conduct.
The Court also rejected a challenge, under Fed. R. Evid. 404(b) to the admission against one government official of evidence of bribery by the same contractor of another government official. The Court pointed out that evidence of multiple bribery recipients undercut the defense that the payments were made to one out of “friendship.”
The Court rejected the argument that the prosecution knowingly put on false testimony of a government witness, finding that the testimony may not have been false, and that the government did not know it was false – and that even if knowingly false, it did not affect the jury’s evaluation of the credibility of the witness.
As to a single count of conspiracy under 18 U.S.C. § 371, the Court overturned a conviction it was barred by the statute of limitations. The count was based on non-conspirator’s receipt of money from another non-conspirator, pursuant to an agreement between conspirators that was made at a time outside the statute of limitations. Although the receipt of illicit payment can qualify as an overt act for purposes of a conspiracy, and although this receipt of payment occurred within the statute of limitations, it involved non-conspirators, and there was no evidence that the conspirators who agreed on the payment knew the timing of the payment.
The Court rejected the argument that Wharton’s Rule, which precludes punishment for a substantive offense and of a conspiracy offense if the substantive offense itself requires the participation of two persons. The Court found no Congressional intent to preclude cumulative punishment for bribery and for conspiracy to commit bribery.
Turning to sentencing, the Court affirmed a $851,927 restitution, an amount which corresponded to the bribes paid. The Court rejected the argument that the government failed to show that the County lost this amount, noting the betrayal of the public trust, and that companies expect to recoup bribes in the cost of doing business. The Court recognized that because one defendant was 84 years old, the record did not show that he could repay the restitution in his lifetime; however, the Court found no plain error, because the County was entitled to recover restitution payments “for as long as they are made.”
The Court vacated the imposition of a $250,000 fine on one defendant, finding it was unable to glean from the record the basis for this specific amount. However, the Court affirmed the imposition of a $19.4 million fine on another defendant, noting that it was well below the Guideline range.
