UNITED STATES OF AMERICA v. DAVID LYNN ROBERSON, JOEL IVERSON GILBERT
No. 18-14654
United States Court of Appeals, Eleventh Circuit
May 27, 2021
Bеfore WILSON and BRANCH, Circuit Judges, and RESTANI,* Judge.
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14654
________________________
D.C. Docket No. 2:17-cr-00419-AKK-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LYNN ROBERSON,
JOEL IVERSON GILBERT
Defendants-Appellants,
________________________
Appeals from the United States District Court
for the Northern District of Alabama
________________________
(May 27, 2021)
Before WILSON and BRANCH, Circuit Judges, and RESTANI,* Judge.
RESTANI, Judge:
* The Honorable Jane A. Restani, United States Judge, U.S. Court of International Trade, sitting
by designation.
hundreds of thousands of dollars to an Alabama Representative through his
charitable foundation in exchange for “advocacy” and “community outreach”
intended to undermine the Environmental Protection Agency’s (“EPA”) efforts to
clean up a Superfund site. The Defendants-Appellants were convicted of bribery
under
numerous witnesses, including the Representative himself, and hundreds of exhibits.
Defendants-Appellants claim, inter alia, that the convictions should be overturned
because no reasonable jury could find that the Representative committed an “official
act,” an element required of a different flavor of federal bribery–
The court concludes that the district court was correct not to equate these two federal
statutes and that the Appellants’ remaining arguments regarding the jury instructions
and the district court’s decision not to sever the Appellants’ trial are unavailing. The
judgments of conviction are affirmed.
BACKGROUND
Joel Gilbert (“Gilbert”), a partner at Balch & Bingham LLP (“Balch”), and
David Rоberson (“Roberson”), a lobbyist and Vice-President of Governmental
Affairs at Drummond Company (“Drummond”), appeal their guilty verdicts
following a joint jury trial for conspiracy,
abetting),
at
Roberson were involved in a scheme to thwart the EPA’s efforts to expand the
geographical area of the 35th Avenue Superfund site (“35th Avenue site”) and the
EPA’s proposed addition of the site to the National Priorities List (“NPL”) by paying
Alabama Representative Oliver Robinson (“Representative Robinson”) to act
counter to these efforts.1 In particular, the government highlighted three actions by
Representative Robinson as violative of
Robinson attended a local EPA meeting with talking points about the Superfund site
and its potential expansion, prepared by Gilbert, (2) Representative Robinson
requested to attend and spoke at a meeting of the Alabama Environmental
Management Commission (“AEMC”) to promote Drummond’s position against the
EPA, and (3) Representative Robinson voted a resolution out of the Alabama House
of Representative’s Rules Committee, which was drafted by Gilbert, opposing the
EPA’s activities in Alabama.
The 35th Avenue site is in North Birmingham, Alabama. Prior to the events at
issue, the EPA established the 35th Avenue site and found the Walter Coke Company
resрonsible for the pollution. In 2013, however, the EPA sent letters to five
companies, including ABC Coke, a subsidiary of Drummond, naming those five
companies as additional potentially responsible parties (“PRP”) for the site’s soil
contamination. In 2014, following a petition by a local environmental group, the
Greater Birmingham Alliance to Stop Pollution (“GASP”), EPA Region 4 in Atlanta
began to consider whether the site should be expanded into nearby Tarrant, where
ABC Coke is located. The EPA also proposed adding the 35th Avenue site to the
National Priorities List (“NPL”), which would allow access to additional federal
funds for the cleanup.
To add a site to the NPL, the EPA was required to reach an agreement with
the
removal and remedial actions” for the site, “assure the availability of a hazardous
waste disposal facility,” and pay for, or otherwise assure payment of, ten percent of
the cost of the cleanup. See
time, Robert Bentley, delegated the decision on whether to reach an agreement with
the EPA to the Alabama Department of Environmental Management (“ADEM”).
Although ADEM was the initial decisionmaker on this issue, the AEMC, a body that
hears regulatory appeals from ADEM, selects the director of ADEM, implements
applicable rules and regulations, and can make recommendations to ADEM, held a
hearing attended by the ADEM director. Ultimately, the Alabama Legislature would
be required to appropriate any money allocated from the State, if the site was to be
listed on the NPL. See
Drummond, through Roberson, undertook efforts to hamper the EPA’s
attempts to expand the site, add it to the NPL, and find ABC Coke responsible for
the cleanup costs. These efforts included retaining Balch, and its partner Gilbert, to
represent ABC Coke. Using Roberson’s preexisting lobbying relationship with
Representative Robinson, Gilbert and Roberson enlisted him to help run a
“community outreach program” aimed at garnering public support for Drummond’s
position.2 In February 2015, Gilbert and Representative Robinson signed an
agreement, which established a consulting relationship between Balch and the Oliver
Robinson Foundation Inc. (“the Foundation” or “Robinson Foundation”),3
retroactively effective to December 1, 2014, when Representative Robinson first met
with the EPA.4 The Foundation Contract, which appears to be largely boilerplate,
required Representative Robinson to abide by all applicable laws and ethical rules.
As indicated above, three actions undertaken by Representative Robinson, however,
resulted in Roberson and Gilbert’s indictment on federal charges.
First, in December 2014, Representative Robinson attended an EPA meeting
about its “Make a Visible Difference” campaign with talking points prepared by
Gilbert about the 35th Avenue site. Prior to the meeting, Representative Robinson
informed Gilbert that he would be meeting with the EPA, which led to Gilbert
contacting Roberson, who then approved the request for $7,000 a month for the
Foundation, all in the span of a few short hours. Although some of the comments
Representative Robinson made at the meeting were seemingly innocuous, others at
best displayed a pro-business stance and at worst telegraphed to the EPA that the
local business
the EPA’s 35th Avenue site efforts.5 Without informing the EPA officials,
Representation Robinson recorded audio of the meeting on his iPhone and then sent
a copy to Gilbert who forwarded it to Roberson.6
Second, Representative Robinson spoke at a public meeting of the AEMC
after Gilbert drafted a letter on his behalf requesting permission to speak.
Representative Robinson then met with Roberson and Gilbert to discuss the meeting
and strategize. The Foundation Contract was signed on February 16, 2015, a few
days before the meeting. Representative Robinson then attended the AEMC meeting
as a local representative and spoke to the AEMC and an audience including the
director of the ADEM, Lance LeFleur (“LeFleur”). Representative Robinson
expressed concern regarding the EPA’s efforts in his legislative district and sought
“answers from [the AEMC] – or the ADEM.” Representative Robinson remarked
that he did not think expansion of the 35th Avenue site was supported by scientific
evidence, that he did not think the area should be listed as a Superfund site or on the
NPL, and that finding additional companies liable for the cleanup would harm
residents given the “decades of litigation that will occur.” At no point did
Representative Robinson disclose his affiliation with Drummond, Balch, or the
Appellants. Following the meeting, at the behest of Roberson, Representative
Robinson sent LeFleur a letter drafted by Gilbert asking for information regarding
LeFleur’s communications with the EPA and other public officials about the 35th
Avenue site.
Third, in May 2015, Representative Robinson helped vote a resolution out of
the House Rules Committee, drafted by Gilbert, entitled “Urging Increased
Oversight of and Opposition to the EPA’s Activities in Alabama” (“SJR-97”).7 As
indicated by Gilbert’s timesheets, he met with Roberson and Representative
Robinson the same day that he drafted the resolution. The resolution described EPA
action in the area, in particular regarding the 35th Avenue site, stated that the EPA
was operating on the basis of faulty science and was working against ADEM, urged
the EPA to reconsider its actions, and asked that ADEM and the Alabama Attorney
General “combat the EPA’s overreaсh.” The Resolution eventually passed both
houses of the Legislature and was signed by the Governor.
Representative Robinson pleaded guilty to his role in the scheme and testified
to
Robinson’s testimony, along with other evidence, led the jury to convict Roberson
and Gilbert on all counts.8
,JURISDICTION & STANDARD OF REVIEW
We have jurisdiction under
of conviction. The court reviews de novo the sufficiency of the evidence, see United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005) (citation omitted), and
“interpret[s] the facts in the light most favorable to the government.” United States
v. Blankenship, 382 F.3d 1110, 1116 (11th Cir. 2004) (citation omitted). We review
de novo whether jury instructions misstated the law or misled the jury. See United States
v. Baston, 818 F.3d 651, 660 (11th Cir. 2016). The district court’s refusal to
sever a case is reviewed for abuse of discretion. See United States v. Browne, 505
F.3d 1229, 1268 (11th Cir. 2007).
DISCUSSION
I. Sufficiency of the Evidence
Appellants argue9 that under the standard set forth in McDonnell v. United
States, 136 S. Ct. 2355 (2016), the actions taken by Representative Robinson to
promote Drummond’s position on the EPA issue do not constitute “official acts” and
thus do not satisfy
an agent of Alabama in connection with ‘business’ of the State.” At base, they argue
that bribery under
the actions undertaken by Representative Robinson were either not official acts or
cannot be connected to Appellants.
Appellants additionally claim that because it is unknown which acts the jury
relied upon in convicting Gilbert and Roberson, a new trial is required to ensure that
the jury did not convict for legal behavior. Appellants contend that Representative
Robinson is not an agent of Alabama for the purposes of
he had no authority over the executive agencies AEMC and ADEM. Finally,
Appellants counter the government’s “retainer” theory10 of culpability as
unsupported and legally flawed in the wake of McCormick v. United States, 500 U.S.
257 (1991) and United States v. Siegelman, 640 F.3d 1159 (11th Cir. 2011) (per
curiam).
The phrase “official act” is not in
or bribery concerning progrаms receiving Federal funds” and reads:
(a) Whoever, if the circumstance described in subsection (b) of this
section exists—
. . .
(detailing a bribery scheme based
person, with intent to influence or reward an agent of an organization
or of a State, local or Indian tribal government, or any agency thereof,
in connection with any business, transaction, or series of transactions
of such organization, government, or agency involving anything of
value of $5,000 or more;
shall be fined under this title, imprisoned not more than 10 years, or
both.
(b) The circumstance referred to in subsection (a) of this section is that the
organization, government, or agency receives, in any one year period,
benefits in excess of $10,000 under a Federal program involving a
grant, contract, subsidy, loan, guarantee, insurance, or other form of
Federal assistance.
requirement from
“[b]ribery of public officials and witnesses[.]”
held that
The Supreme Court in Sun–Diamond concluded that
§ 201(c) didrequire a link between the gratuity and a specific “official act” because
the statutory text prohibited gratuities given or received “for or because
of any official act performed or to be performed” and then defined
“official act” as “any decision or action on any question, matter, cause,
suit, proceeding or controversy ....” Id. at 406, 119 S. Ct. at 1407
(quoting
§ 201(c)(1)(A) and(a)(3) ). And it was specifically this text ofthe illegal gratuity statute—“for or because of any official act”—that
the Supreme Court in Sun–Diamond found to be “pregnant with the
requirement that some particular official act be identified and proved.”
Id. at 406, 119 S. Ct. at 1407 (emphasis added). In stark contrast, none
of these phrases are used in
§§ 666(a)(1)(B) or666(a)(2) .
United States v. McNair, 605 F.3d 1152, 1190 (11th Cir. 2010). The question is
whether McNair remains good law after McDonnell.
McDonnell involved an application of
the former governor of Virginia. See 136 S. Ct. at 2361. The Supreme Court held
that an “official act” under
matter, cause, suit, proceeding or controversy’ involving the formal exercise of
governmental power.” Id. at 2374 (quoting
vacated and remanded McDonnell’s conviction because the jury instructions did not
comport with this definition of “official act.” See id. at 2375.
The only Circuit Courts of Appeals to directly consider the issue in published
cases post-McDonnell, the Second and Sixth, have not imported an “official act”
requirement into section 666. See United States v. Ng Lap Seng, 934 F.3d 110, 134
(2d Cir. 2019) (holding that “McDonnell’s ‘official act’ standard does not pertain to
bribery as proscribed by
Cir. 2018) (holding that “[i]n McDonnell, the Supreme Court limited the
interpretation of the term ‘official act’ as it appears in
statute than [
2017) (stating with regard to a separate issue, McDonnell “had nothing to do with
receiving substantial sums of federal funds” and the statute’s “expansive,
unqualified language,” the court has repeatedly rejected statutory constructions
aimed at narrowing section 666’s scope. United States v. Keen, 676 F.3d 981, 990–
91 (11th Cir. 2012) (internal quotation and citations omitted) (collecting cases in
which the court has rejected attempts to narrow the scope of section 666). Consistent
with the views of our sister Circuits, we hold that McDonnell does not disturb this
court’s holding in McNair and we do not read into section 666 limitations
unsupported by the language of the statute.13
Turning to the statute and facts at issue, there was sufficient evidence to
convict Roberson and Gilbert under
any person who (1) “corruptly gives, offers, or agrees to give anything of value to
any person, with intent to influence or reward[,]” (2) “an agent of an organization or
of a State, local or Indian tribal government, or any agency thereof,” (3) “in
connection with any business, transaction, or series of transactions of such
organization, government, or agency involving anything of value of $5,000 or
more[,]” when (4) the “organization, government, or agency receives, in any one
year period, benefits in excess of $10,000 under a Federal program involving a grant,
contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance[,]”
is guilty of bribery.
requirement was met, the others are evaluated in turn.
. Further, Representative RobinsonThe
acted with a corrupt state of mind in paying the Foundation. Although Gilbert
testified14 that he did not enter into a contract with Representative Robinson
corruptly, given the vast paper trail and the testimony of Representative Robinson,
the jury had sufficient evidence to find that Roberson and Gilbert were corruptly
engaging Representative Robinson. The jury was free to disbelieve Gilbert’s
testimony and to infer from Representative Robinson’s testimony that the Appellants
acted corruptly in soliciting Representative Robinson.
Representative Robinson testified that it was Roberson who first approached
him and that Roberson was specifically interested in whether Robinson had any
relationship with then Mayor of Birmingham, William Bell, and Congresswoman
Sewell such that Representative Robinson could aid Drummond in enlisting their
help regarding Drummond’s efforts. Although Representative Robinson did not end
up attempting to influence these individuals, the jury could reasonably infer that
from the start Roberson was interested in using Representative Robinson and his
position to influence other decisionmakers. Before speaking at the AEMC meeting,
Representative Robinson met with Appellants to discuss how to approach the
meeting and discuss the possibility of arranging a meeting between the
Representative and Lanier Brown, the head of the AEMC, and to ask ADEM
Director LeFleur to come to Birmingham. Representative Robinson testified that
during this meeting, Appellants expressed that the purpose of having the
Representative speak at the AEMC meeting was to engage ADEM because it was
“the only vehicle at that time . . . that could slow the process of the EPA[.]”
Although one might argue that there was nothing improper or illegal about
Robinson’s contract with Balch to provide consulting and community outreach work
for clients like Drummond, Representative Robinson testified that the community
outreach work did not start until September 2015, long after the contact was signed
and after Representative Robinson had already been issued several checks for many
thousands of dollars from Drummond or AJE through Balch. As Gilbert confirmed,
Robinson’s proposal was the only one considered for the community work and there
was no due diligence done to ensure his Foundation was even able to do the work.
Further, it was just four days before the AEMC meeting that Representative
Robinson signed the contract with Balch and was issued a rushed check for $14,000.
The jury could reasonably infer from these facts that Appellants’ intention was not
primarily to enlist the Representative’s community outreach services, but that he was
engaged for his ability to use his position to influence other decisionmakers. Further,
although it might be argued that ADEM had no official role to play by the time
Representative Robinson spoke at the AEMC meeting, Appellants were exchanging
emails discussing how they might be able to “influence ADEM’s position,” and to
make sure to “preserve any issues we want raised in the [NPL] appeal process,” just
a few days after the meeting. ADEM Director LeFleur testified that he was still
engaging with EPA officials about the 35th Avenue site after the AEMC meeting, at
least as late as October 2015.
Further, Gilbert testified that the payments to the Robinson Foundation were
handled by Roberson personally and that the payment process was such that it “[i]n
a general sense” hid the relationship between Drummond and the Robinson
Foundation
evidence that Appellants concealed Representative Robinson’s payments from both
the AJE and Drummond by scrubbing invoices of information indicating his
involvement, at Drummond’s behest and with Gilbert’s approval. Roberson, who
headed the AJE and controlled its bank account, did not disclose to its members that
their fees were being used to pay the Representative for his services.
The nature and timing of the payments, the secret recording of meetings, the
routing of these payments through a charitable foundation, the nondisclosure of the
payments to AJE members, and the failure of the parties to inform the EPA or other
agencies of their financial relationship support the inference that the payments were
made with a corrupt state of mind. See McNair, 605 F.3d at 1197. (“[T]he extent to
which the parties went to conceal their bribes is powerful evidence of their corrupt
intent.”).15
The second element of
Representative Robinson was an agent of Alabama. Appellants argue that, at most,
Representative Robinson was only an agent of the Alabama Legislature and not the
State as a whole. This argument has been flatly rejected by both the First and Third
Circuits and we reject it here. See United States v. Fernandez, 722 F.3d 1, 9 (1st Cir.
2013) (finding that the Puerto Rico Senate is a constituent part of the Puerto Rican
government and that its “members are thus part of the limited category of
government officials who represent the ‘State’ as a whole”); United States v. Willis,
844 F.3d 155, 166–67 (3d Cir. 2016) (holding that the President of the Virgin Islands
Legislature was an agent of the government). The statute defines agent to mean “a
person authorized to act on behalf of another person or a government and, in the case
of an organization or government, includes a servant or employee, . . . and
representative.”
as a member of the House of Representatives, testified that his position entails voting
on the budget for state agencies, including the ADEM, which is prototypical action
on behalf of the state. See Keen, 676 F.3d at 990 (concluding “that to qualify as an
agent of an entity, an individual need only be authorized to act on behalf of that
entity”). Further, Representative Robinson might have been in a position to
ultimately vote on approving any funds allocated from the state treasury to the EPA.
See
Legislature’s role in appropriating state treasury funds). Finally, as the government
notes, if a state legislator is not an agent of the state for purposes of section 666, it
is unclear who would be. By the plain reading of its text,
is an agent of the State of Alabama for purposes of
The third element requires that the jury find that Roberson and Gilbert
intended Representative Robinson to act “in connectiоn with any business,
transaction, or series of transactions” of the Alabama government.
impacted. See
expand the 35th Avenue site and the EPA’s proposal to add the site to the NPL were
pending matters, as indicated by an EPA letter stating that the EPA did not finish its
considered expansion and NPL assessments until July 14, 2016.17
It was reasonable
for the jury to believe that Representative Robinson went to the EPA and AEMC
meetings with the intention of influencing these decisions. This is supported not just
by Representative Robinson’s attendance, but also email correspondence from
Gilbert, which states that “[w]e need to discuss how we can influence ADEM’s
position or have someone in the AG/Governor’s office attend the meeting as well to
make sure ADEM does [not] throw in the towel[.]” In addition, Representative
Robinson also testified that Roberson first asked him to discuss Drummond’s
concerns about the EPA with Mayor Bell and Congresswoman Sewell, which further
evinces that Roberson was hoping to use Representative Robinson’s position as a
legislator to influence relevant dеcisionmakers. Although Appellants attempt to
paint the agreement between Balch and the Oliver Robinson Foundation as some
sort of permissible advocacy campaign, as indicated Gilbert testified that the
Foundation was the only entity asked to submit a proposal and that Gilbert and the
Balch firm did not do any due diligence on the Foundation’s ability to do the work.
Considering this and other evidence presented showing that initially it was Oliver
Robinson’s Communication company that was enlisted, it was reasonable for the jury to find that the Foundation was enlisted not for its outreach capacity, but because it gave Drummond and Roberson, through Balch and Gilbert, access to Representative Robinson in his position as a legislator.
Whether Representative Robinson impacted the ultimate decisions of AEMC or the EPA is immaterial. Rather, it is enough that Roberson and Gilbert intended Representative Robinson to act “in connection with any business” of the State of Alabama.
Finally, Roberson’s argument that a bribery conviction requires a specific act following McCormick and Siegelman fails. Those cases involved First Amendment concerns not at issue here, namely campaign donations. See McCormick, 500 U.S. at 273 (Hobbs Act imposes liability only when campaign contributions are “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.”); Siegelman, 640 F.3d at 1169–70 (bribery case involving donations to Siegelman’s private education lottery campaign). McCormick and Siegelman stand for the unremarkable proposition that when a case implicates First Amendment concerns, an agreement must be explicit such that “[n]o generalized expectation of some future favorable action will do.” Siegelman, 640 F.3d at 1171.
Appellants, citing Siegelman, argue that the court should have instructed the jury about an explicit quid pro quo agreement because the Appellants were engaging in protected political speech, as their “campaign” was also political in nature. The facts of this case, however, are distinguishable from Siegelman. The bribe at issue in Siegelman was a donation to the “Alabama Education Lottery Foundation” which was formed “to raise money to campaign for voter approval of a ballot initiative to establish a state lottery.” Id. at 1165. The entire purpose of the organization was for a specific and organized political campaign on a narrow issue. Here, while the contract was with a charitable organization with an educational focus, the money paid was not a “donation,” and it was not for the sole purpose of the organization.
The alleged bribe here was a contract with an organization to purportedly perform community grassroots organization of a political nature different from what the organization typically did. Thus, these actions do not fall within the sort of political “campaign” that we were concerned with in Siegelman.
Further, although Siegelman involved section 666, it did not explicitly extend McCormick’s express quid pro quo requirement to all convictions made under section 666. See id. at 1172 (assuming but not deciding in determining whether an error was reversible, that a quid pro quo instruction was required to convict under section 666). Moreover, although McDonnell specified that the “question or matter” to be influenced must be identified, that case did not reject the retainer theory of bribery. See 136 S. Ct. at 2369–70; see also United States v. Silver, 948 F.3d 538, 552–55 (2d Cir. 2020) (noting that McDonnell did not invalidate the “as the opportunities arise” theory of bribery). Thus, the retainer theory of liability is still a valid basis of conviction under section 666 in this type of case.
In instructing the jury on honest services wire fraud, the district court defined the charge with reference to
officials with “intent . . . to influence any official act[.]”
Whether or not Representative Robinson’s actions in regard to the EPA and AEMC meetings are “official acts” under the standard set forth in McDonnell,19 his
Taking each of these three arguments in turn, first, as noted above, the government put on sufficient evidence under the “retainer” theory of liability for the
jury to find that the Appellants had bribed Representative Robinson to vote on the resolution. McDonnell confirmed that an “agreement need not be explicit,” and that it is enough that “the public official received a thing of value knowing that it was given with the expectation that the official would perform an ‘official act’ in return.” 136 S. Ct. at 2371. The second argument is easily disposed of as Representative Robinson admitted that he voted on the resolution in a voice vote. Although Representative Robinson had previously told investigators that he had not voted on the resolution, it was reasonable for the jury to find that his later statement was the truth. Finally, the third argument fails because “[a] conviction must be affirmed unless there is no reasonable construction of the evidence from which the jury could have found the defendant guilty beyond a reasonable doubt.” United States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012) (citation omitted).
II. Jury Instructions
Roberson and Gilbert argue that the district court erroneously instructed the jury.21 First, Roberson argues that the district court should have instructed the jury that a federal bribery conviction required an “official act” and, accordingly, that Representative Robinson “expressing support” for a policy was insufficient under
to supply the jury with a technical definition of when “advice” rises to the level of official action. Second, Roberson argues that the court was required to instruct the jury that a conviction required an “explicit” corrupt agreement, in order to avoid potential First Amendment complications. Finally, Gilbert argues that the district court constructively amended the indictment by instructing the jury on the “retainer” theory, requiring a new trial.
As noted above, the district court was not required to give an instruction on an “official act” at least as to the section 666 bribery count. As we have already concluded that the First Amendment cаses are not implicated here, we do not further address Roberson’s argument that the jury instructions
In assessing whether the district court erred in refusing a jury instruction requested by a defendant the court considers whether the requested instruction “(1) is correct, (2) is not substantially covered by other instructions which were delivered, and (3) deals with some point in the trial so ‘vital’ that the failure to give the requested instruction seriously impaired the defendant’s ability to defend.” United States v. Opdahl, 930 F.2d 1530, 1533 (11th Cir. 1991) (quoting United States v.
Lively, 803 F.2d 1124, 1125–26 (11th Cir. 1986)). The Appellants’ requested jury instruction regarding what an official act excludes read as follows:
Not everything that a public official does in his official capacity is an “official act.” Under the law, certain actions by public officiаls are not considered official acts, even if those acts are performed in an official capacity.
For example, the following are not, without more, official acts: meeting with other officials, speaking with interested parties, or expressing support for (or opposition to) a policy or course of action; setting up a meeting or talking to another official; giving a speech; lobbying government agencies or advocating for constituents; taking a public position on an issue; or sending a letter on official stationery.
This may come as a surprise to you, and you may even feel uncomfortable with the idea that someone can give a public official something of value in exchange for these types of assistance–but, under the law, doing so is not a federal crime.
The relevant portion of the jury instruction given was:
The public official’s action or decision or agreement to make a decision or take an action on that question, matter, cause, suit, proceeding, or controversy may include using his official position to exert pressure on another official to perform an official act or to advise another official, knowing or intending that such advice will form the basis for an official act by another official.
But setting up a meeting, talking to another official, or organizing an event or agreeing to do so without more is not an official act. When considering whether a public official exerted pressure or gave advice, you must consider what the public official actually did, not simply what his title or position was.
Appellants contend that the court should have specified that “expressing support” without more is insufficient to sustain a bribery conviction and that the court was required to instruct the jury on this distinction between advising and merely expressing support. McDonnell states that “setting up a meeting, hosting an event or calling an official (or agreeing to do so) merely to talk . . . or to gather additional information,” or “expressing support” is not necessarily enough to show that a public official committed an official act or was providing advice or exerting pressure on another official to take an official act. 136 S. Ct. at 2371. The Court goes on to say, however, that if an official takes such action
on a question or matter that is or could be pending before another official, that [action] could serve as evidence of an agreement to take an official act. A jury could conclude, for example, that the official was attempting to pressure or advise another official on a pending matter. And if the official agreed to exert
that pressure or give that advice in exchange for a thing of value, that would be illegal.
Id. Notably, in later describing the standard the Court states that “[s]etting up a meeting, talking to another official, or organizing an event (or agreeing to do so)—without more—does not fit that definition of ‘official act.’” Id. at 2372. Although the Appellants’ proposed jury instruction is not incorrect that expressing support alone is not necessarily enough to sustain a bribery conviction “without morе,” the proposed instruction is vague as to what “without more” means in this context. What McDonnell makes clear is if an official attempts to “pressure or advise another
official on a pending matter” the crucial “more” exists. Id. at 2371. Read as a whole, the proposed jury instruction is incomplete or misleading if not legally incorrect.
But even if it might have behooved the district court to alter the standard language offered in McDonnell to include “expressing support” in its list of acts that do not necessarily rise to an official act, the remainder of the instruction sufficiently covered the issue. First, the instruction pulled language directly from McDonnell detailing what types of conduct are insufficient to constitute an official act such as “setting up a meeting, talking to another official, or organizing an event or agreeing to do so without more[.]” This list makes clear that not all conduct by an official that could in some way influence another official could properly sustain a bribery conviction. Further, the court urged the jury to “consider what the public official actually did, not simply what his title or position was.” This qualification further highlights that not everything an official does or says can sustain the charge. Finally, the court noted that the official either needed to take official action himself or use his official position to “exert pressure on another official” or “advise another official,22 knowing or intending that such advice will form the basis for an official
act by another official.” Although the line between expressing support and advising may be opaque, by adding the qualifying language “knowing or intending that such advice will form the basis for an official act by another official[,]” the instruction made clear that any advice rendered must have been intended to alter the other official’s conduct, not merely to express support. Thus, although the phrase “expressing support” was not included in the final instruction, the final jury instruction substantially covered the issue.
Finally, the instruction was not “so ‘vital’ that the failure to give the requested instruction seriously impaired the defendant’s ability to defend.” Opdahl, 930 F.2d at 1533 (quoting Lively, 803 F.2d at 1125–26)). Even if the jury could have reasonably understood Robinson’s attendance at the EPA or AEMC meeting to be simply an expression of support for a position, it strains credulity that Robinson’s SJR-97 vote could be understood as merely an
the very narrow view of “advise” or “pressure” advocated by Appellants. See United States v. Lee, 919 F.3d 340, 352–53 (6th Cir. 2019).
or advising and expressing support. No reasonable jury could have found that the vote on SJR-97 was merely expressing support and thus the requested language was not vital, and the district court did not abuse its discretion.
The remaining jury instruction issue is whether the instructions constructively amended the indictment. Jury instructions constructively amend an indictment “when the essential elements of the offense contained in the indictment are altered to broaden the possible bases for conviction beyond what is contained in the indictment.” United States v. Madden, 733 F.3d 1314, 1318 (11th Cir. 2013) (internal quotation and citation omitted). The government points to several paragraphs in the indictment that support a retainer theory of liability, which each count incorporates by reference.23 Thus, the language in the indictment provided sufficient notice to Appellants that the government was pursuing a retainer theory of liability.
The jury instructions state that Appellants could be found guilty if they “gave a thing of value to the Oliver Robinson Foundation with the intent to retain the services of Oliver Robinson on an as-needed basis so that Oliver Robinson would take actions as specific opportunities arose in his role as an agent of the State of Alabama[.]” This instruction does not broaden the possible basis of conviction beyond what was alleged in the indictment, but simply clarifies the law. Cf. United States v. Elbeblawy, 899 F.3d 925, 938 (11th Cir. 2018) (nоting that “the slightly different wording of the jury instruction” in a fraud prosecution “did not amount to a constructive amendment of the indictment”). The facts relating to the applicable legal standard were repeated multiple times in the course of setting forth the law in the indictment and the judge’s slightly different wording of the facts does not amount to constructive amendment.
III. Refusal to Sever Trial or Grant a Mistrial
Roberson also argues that the district court should have severed the trial pursuant to Federal Rule of Criminal Procedure 14(a), and failure to do so led to events requiring a new trial. Roberson
that certain evidence was excluded at trial because it inculpated Gilbert, even though that evidence supported Roberson’s defense that he relied on counsel, Gilbert, in believing his actions were legal. Specifically, the trial court excluded a portion of an FBI agent’s written summary of Roberson’s interview with the FBI in which Roberson states that he had checked with Gilbert to ensure “there was no problem with what they were doing.” The full passage at issue, with the portions excluded at trial underlined, states:
After the Hubbard trial,25 Roberson considered what they were doing, i.e., contracting with a state representative, in light of the ethics law but determined that the area targeted by the campaign was not in Robinson’s district. Roberson stated that they (Drummond) have always been very careful, and he (Roberson) has a reputation to maintain. Roberson had a conversation with Gilbert about ethics considerations. Roberson wanted to know if it was a problem for him (Roberson) to be associated with the effort because he was a lobbyist. Gilbert later told Roberson that he checked with Greg Butrus and Chad Pilcher at Balch, and there was no problem with what they were doing.
Roberson argues that pursuant to the rule of completeness, but for the fact that Gilbert was his co-defendant,26 the omitted passage would have been read into evidence. See
critically important to his advice-of-counsel defense. Roberson also argues that the exclusion of portions of the FBI interview distorted the meaning conveyed by the admitted portions and rejects that any other evidence presented at trial was curative of this omission as the government undermined that evidence in its closing, when “[i]n its final arguments to the jury, the Government dismissed [the relevance of] that 2014 meeting because ‘[i]t was Mike Tracy, the CEO of Drummond,’ who asked Gilbert for advice: ‘[i]t wasn’t David Roberson.’”
Although Roberson raised the motion to sever early in the district court’s proceedings, we focus first on the district court’s later denial of a motion for a new trial because if the district court was correct in denying the motion for a new trial then “its earlier rulings not to sever–when it had even less evidence of potential prejudice before it–were necessarily correct.” Blankenship, 382 F.3d 1110, 1121–22 (11th Cir. 2004). In evaluating whether a motion for a new trial should have been granted, first the court must assess whether there is a risk of prejudice. See Zafiro v. United States, 506 U.S. 534, 538–40 (1993). Next the court must ascertain whether severance was the necessary remedy, as “[t]here are only two circumstances in which severance is the
argument is that he was denied his constitutional right to present a complete defense.27 See
Amicus NACDL urges the court to exercise caution when considering trying attorneys and their clients jointly, averring that severance is often the only way to avoid a severe risk of prejudice. For support, it cites United States v. Walters, 913 F.2d 388, 393 (7th Cir. 1990). Walters involved the joint trial of two business partners involved in a college football recruitment and representation scheme. See 913 F.2d at 389–90. One of the partners, Walters, wished to pursue an advice-of-counsel defense whereas the other, Bloom, did not. See id. at 392–93. The district court refused to sever the trial and subsequently Walters called their joint attorney to testify, forcing Bloom to waive his attorney-client privilege and “skittle along behind [the defense] of Walters.” Id. at 393. Whatever force Walters has, it does not counsel so broad a rule favoring severance that it would apply here. In this case, Roberson was not only prepared to waive his attorney-client privilege, but his motion for severance was in part predicated on ensuring that Gilbert testified as to the legal advice he gave Roberson. Given the possibility that Gilbert might invoke his Fifth Amendment right against self-incrimination, Roberson argued that severing the trial was required to secure Gilbert’s testimony.
Instead Gilbert and others testified consistently with Roberson’s advice-of-counsel defense.28 The only evidence Roberson claims he was prevented from introducing at trial were the redacted portions of the FBI report. Although this evidence lends additional support to Roberson’s advice-of-counsel defense, its exclusion is not misleading with respect to the portion that was admitted, given the other evidence presented, and essentially was cumulative. Additionally, Roberson’s statements to the FBI are of little probative value in comparison to the other evidence on point сonsidering their self-serving nature, that they were made after the conduct at issue took place, and given that they do not clearly demonstrate that Roberson asked about the legality of his actions before the conduct had occurred. See Browne, 505 F.3d 1229, 1270 (11th Cir. 2007) (“If the testimony is purely cumulative, or of negligible weight or probative value, the court is not required to sever.”) (citation omitted); see also United States v. Novaton, 271 F.3d 968, 990 (11th Cir. 2001) (holding that “statements concerning the testimony that would become available by severing trials must be specific and exonerative, rather than conclusory or self-serving, in order to justify severance”). In sum, the exclusion was not so prejudicial as to compromise Roberson’s ability to present his defense or deny him a fair trial. See Novaton, 271
CONCLUSION
For the reasons stated above, we affirm the convictions of Gilbert and Roberson. AFFIRMED.