Eleventh Circuit Court of Appeals - Published Opinions

Friday, April 06, 2012

Keen: Sentencing Error to Group Fraud and Bribery

In U.S. v. Keen, No. 09-16027 (April 5, 2012), the Court affirmed all convictions arising out of bribery charges that stemmed from corruption in Dixie County, Florida, but vacated one sentence.
The Court rejected the argument that Keen did not qualify as an "agent" of Dixie County because he was not authorized to act with respect to the entity’s funds. The Court noted that such a narrowing reading of the term "agent" would only be needed to avoid an "absurd result." It sufficed that Keen was authorized to act on behalf of Dixie County.
The Court also rejected Keen’s statute of limitations challenge, pointing out that the government charged conduct within the limitations period, and that the limitations period could be measured from the date of Keen’s most recent bribery violation.
The Court recognized that it was a "serious error" for the prosecutor to introduce evidence of a prior conviction, but upheld the trial court’s decision not to grant a mistrial. The Court reminded the United States Attorney’s office of "the high level of conduct that has traditionally characterized [it]."
The Court rejected a claim of outrageous government conduct, pointing out that the district court gave the jury an entrapment instruction.
Turning to sentencing, the Court agreed with Keen that the sentencing court incorrectly grouped his fraud and bribery convictions. The Court rejected the government’s argument that Keen’s efforts to conceal his crime, or his violation of the "public trust," amounted to a continuation of the crime for grouping purposes. Because the incorrect grouping resulted in an erroneous six-level enhancement, the Court remanded for resentencing.