United States v. Burfoot
2:16-cr-00006
E.D. Va.Apr 19, 2017Background
- Anthony L. Burfoot was indicted on eight counts including conspiracy and substantive honest-services wire fraud (Counts 1–2), Hobbs Act extortion (Counts 3–4), and perjury (Counts 5–8); jury convicted on Counts 1, 2, 3, 4, 7, and 8.
- Government's case relied on testimony (Dwight and Curtis Etheridge, Ricardo Lewis, others) and documentary evidence (bank records, phone records, invoices, wire transfers) alleging quid pro quo bribery relationships tied to developer projects (Tivest, Broad Creek Villas, MidTown Office Tower).
- Central contested factual/legal points: whether interstate wires occurred and were foreseeable/caused by Burfoot; whether conduct was bribery/kickbacks (criminal) or merely a conflict of interest (noncriminal after Skilling); and whether certain trial events (jury deliberation time, a witness opinion about another official, jury instruction clarifying Count 4) required a new trial or acquittal.
- Defendant filed post-trial motions under Rules 29 and 33 challenging sufficiency of evidence (Counts 1–2 and Counts 1–4), constructive amendment of Count 4, alleged defective jury deliberations, prejudicial testimony, and renewed pretrial motions.
- The district court held an evidentiary/argument hearing, denied all post-trial motions, and issued this written opinion explaining that the evidence supported convictions and that no legal error required a new trial or acquittal.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Burfoot) | Held |
|---|---|---|---|
| Sufficiency of evidence for Count 1 (conspiracy to commit honest-services wire fraud) | Evidence (witnesses, documents, interstate wires including credit-card payment and $4M wire) satisfied all elements and made wires foreseeable | Only isolated wire (credit-card payment) existed; no proof Burfoot agreed to or foresaw use of interstate wires; Parr bars legally compelled wire | Denied — viewing evidence in Government's favor, a rational juror could find elements beyond reasonable doubt; wire foreseeability and other interstate transfers supported conviction |
| Sufficiency of evidence for Count 2 (substantive honest-services wire fraud) | Same body of evidence shows scheme used interstate wires as part of execution; other quid pro quos corroborate scheme | Did not transmit or cause the specific wire; no foreseeability proof; Parr contention reiterated | Denied — evidence permitted finding that a wire was used in execution of the fraud; jury reasonably convicted |
| Whether conduct was only a conflict of interest (Skilling) vs bribery/kickback scheme (Counts 1–4) | Jury instructions required quid pro quo/bribery; Government presented corroborated evidence of multiple bribery relationships | Evidence at best showed undisclosed financial interest/conflict of interest, not illicit bribes; Skilling limits honest-services statute to bribes/kickbacks | Denied — court found the Government proved bribery relationships; Skilling inapplicable because jury was instructed and found quid pro quo evidence |
| Constructive amendment of Count 4 (Hobbs Act) via supplemental jury instruction about amount/value | Indictment alleged approx $50,000 and other things of value, but elements did not require proof of a specific amount; conjunctive allegation may be proven disjunctively | Court’s later instruction (that any thing of value need not be quantified) impermissibly broadened indictment and constructively amended charge | Denied — court’s disjunctive instruction did not broaden possible bases beyond the grand jury’s charge; conjunctive indictment may be proven disjunctively |
| Alleged inadequate jury deliberation time (Rule 33) | N/A (defendant contends insufficient deliberation given volume of evidence) | Jury had only ~5 hours to deliberate after 5-week trial and voluminous exhibits; verdicts unreliable | Denied — no minimum deliberation time; no evidence jury ignored instructions or was inattentive; split verdict and strong evidence undercut claim |
| Prejudicial inadmissible testimony (opinion/hearsay about Ronnie Boone) | Testimony brief and isolated; court quickly instructed jury to disregard; evidence against defendant was strong | Witness Smigiel’s opinion that Boone got special treatment was inadmissible and prejudicial; curative instruction insufficient — mistrial/new trial required | Denied — court sustained objection, struck testimony, gave cautionary instruction; not reasonably possible the verdict was affected |
| Renewal of pretrial motions (statute of limitations, wire in furtherance, duplicitous indictment, materiality of perjury) | Government relies on prior responses; court already denied these motions during trial | Defendant renews prior motions seeking judgment of acquittal on several counts | Denied — court previously considered and rejected these issues; defendant presented no new law/facts to alter rulings |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review in criminal cases)
- Parr v. United States, 363 U.S. 370 (addressing legally compelled acts and wire usage)
- Skilling v. United States, 561 U.S. 358 (narrowing honest-services fraud to bribes and kickbacks)
- Schmuck v. United States, 489 U.S. 705 (wire or mail use as part of execution of a fraud)
- Martin Linen Supply Co. v. United States, 430 U.S. 564 (jury need not re-review every document; focus on facts essential to conviction)
- United States v. Robinson, 627 F.3d 941 (conjunctive indictment may be proven disjunctively without constructive amendment)
- United States v. Floresca, 38 F.3d 706 (constructive amendment doctrine)
- United States v. Sampson, 140 F.3d 585 (defining constructive amendment)