United States v. Anthony Burfoot
899 F.3d 326
| 4th Cir. | 2018Background
- Anthony Burfoot, a Norfolk city councilman (and Chief Deputy Treasurer), allegedly solicited and accepted cash and gifts from local developers (notably Tivest principals Curtis and Dwight Etheridge, Ronald Boone, and Thomas Arney) in exchange for favorable votes and official acts.
- Tivest payments and perks (cash, home renovations, cars, meals, trips) were tied to council votes that granted land, loans, and city funds to Tivest projects (Broad Creek Villas, MidTown Office Tower). Some payments occurred in a pattern from 2008–2011.
- Burfoot instructed Tivest to pay delinquent taxes via his office’s Treasurer staff before a key MidTown vote; Dwight made an interstate wire payment to satisfy taxes shortly thereafter.
- Burfoot testified at a separate federal trial (the Woodard trial) denying he solicited or accepted bribes and denying a $25,000 arrangement involving Arney and Burfoot’s associate; he was later indicted for honest-services wire fraud, Hobbs Act extortion (under color of official right), conspiracy, and perjury.
- After a five-week jury trial, Burfoot was convicted on six counts (wire fraud, extortion, conspiracies, and two perjury counts), sentenced to six years, and appealed arguing insufficiency of evidence, a defective extortion count, constructive amendment, and several Rule 33 grounds.
Issues
| Issue | Plaintiff's Argument (Burfoot) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Sufficiency of bribery evidence for wire fraud and Hobbs Act counts | Evidence showed only conflicts of interest / improper voting, not bribery | Testimony, phone/bank records, and coordinated payments supported quid pro quo and bribery | Court: Substantial evidence supported jury’s finding of bribery; convictions stand |
| Honest-services wire fraud (foreseeability of interstate wire) | Dwight’s use of interstate wire to pay taxes was unforeseeable and legally compelled; Parr controls | Burfoot, as Chief Deputy Treasurer, knew Treasurer procedures; demand and coordination made wire payment reasonably foreseeable and part of scheme | Court: Wire transfer was foreseeable and in furtherance of the scheme; Rule 29 denied |
| Hobbs Act extortion count: duplicity, statute of limitations, constructive amendment | Count charged multiple extortion acts (duplicitous) including time-barred acts; jury instruction broadened indictment (constructive amendment) | Payments were part of a single continuing scheme stretching into limitations period; jury instruction clarified that amount need not be proven and did not alter elements | Court: Count characterized a continuous scheme; limitations satisfied; no constructive amendment; conviction affirmed |
| Perjury (materiality) | False denials at Woodard trial were immaterial because that trial didn’t charge Burfoot-related bribery | Arney’s testimony linked to charged conspiracy and Burfoot’s denials could affect Arney’s credibility — material to the proceedings | Court: False statements were material (could influence witness credibility); perjury convictions supported |
Key Cases Cited
- Alerre v. United States, 430 F.3d 681 (4th Cir. 2005) (standard of review for Rule 29 sufficiency review)
- Burgos v. United States, 94 F.3d 849 (4th Cir. 1996) (substantial-evidence standard in criminal convictions)
- Schmuck v. United States, 489 U.S. 705 (1989) (mail/wireings in furtherance of scheme may form basis for fraud convictions despite statutory duties)
- Parr v. United States, 363 U.S. 370 (1960) (limitations on using legally compelled acts as basis for fraud convictions)
- Pierce v. United States, 400 F.3d 176 (4th Cir. 2005) (‘‘causation’’/foreseeability standard for causing interstate wire use)
- Evans v. United States, 504 U.S. 255 (1992) (elements of Hobbs Act extortion: obtaining a thing of value under color of official right)
- Gaudin v. United States, 515 U.S. 506 (1995) (jury decides materiality of false statements)
- Janati v. United States, 374 F.3d 263 (4th Cir. 2004) (government may present uncharged acts in furtherance of charged conspiracy)