UNITED STATES OF AMERICA, Appellee, υ. CHRISTIAN DAWKINS, MERL CODE, Defendants-Appellants, LAMONT EVANS, EMANUEL RICHARDSON, ANTHONY BLAND, Defendants.
Nos. 19-3623 (L) and 19-3643 (Con)
United States Court of Appeals For the Second Circuit
DECIDED: JUNE 4, 2021
August Term, 2020
ARGUED: OCTOBER 22, 2020
Appeal from the United States District Court for the Southern District of New York
Nos. 17-cr-684-4 and 17-cr-684-5 — Edgardo Ramos, Judge
Before: RAGGI, SULLIVAN, and NARDINI, Circuit Judges.
The Clerk of Court is directed to amend the caption as set forth above.1
On appeal from conspiratorial and substantive bribery convictions in the United States District Court for the Southern District of New York (Edgardo Ramos, J.), see
DAVID ALLEN CHANEY, JR., Chaney Legal Services, LLC, Greenville, SC, (Steven A. Haney, Haney Law Group PLLC, Southfield, MI, on the brief), for Defendants-Appellants
ROBERT L. BOONE, Assistant United States Attorney (Eli J. Mark, Noah D. Solowiejczyk, Thomas McKay, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee
Defendants-Appellants Christian Dawkins and Merl Code stand convicted by a jury of conspiracy to commit bribery in violation of
In
I. Overview
On March 7, 2019, a grand jury returned a Superseding Indictment, charging Dawkins and Code with conspiracy to commit bribery,2 see
The indictment alleged a straightforward scheme: Dawkins and Code planned to pay bribes to basketball coaches at National Collegiate Athletic Association (“NCAA“) Division I universities in exchange for the coaches’ agreement to steer their student-athletes toward Dawkins‘s sports management company after leaving college and becoming professional basketball players.
The defendants moved to dismiss the indictment before trial, challenging Counts One and Two on the ground that the Government‘s allegations failed to establish two elements of a
On May 8, 2019, the jury found Dawkins guilty on Counts One and Two, and Code guilty on Count One. The jury acquitted the defendants of the remaining charges. After the verdict, the district court issued a written opinion explaining its earlier denial of the motion to dismiss. See Doc. No. 244, Dkt. No. 17-cr-684. It then sentenced Dawkins principally to a year and a day in prison, and Code to three months in prison. Both defendants now appeal their convictions.
II. The bribery scheme
Viewed in the light most favorable to the
Christian Dawkins formerly worked as a “runner,” a liaison who helps sports agents develop professional relationships with athletes. In September 2015, Dawkins became acquainted with Louis Martin Blazer, a financial and business manager who had once worked primarily for NFL players. To develop relationships with potential future clients, Blazer had at times paid college football players in hopes that they would retain his services once they turned pro. Unbeknownst to Dawkins, Blazer was cooperating with Government investigators, who recorded the men‘s conversations.
In December 2015, Dawkins proposed that Blazer give Dawkins money to pay basketball players whom Dawkins was attempting to recruit. In exchange, Dawkins would refer the players to Blazer for financial management services. Dawkins also proposed that Blazer take over payments Dawkins had been making to University of South Carolina assistant basketball coach Lamont Evans,4 who, in return, was to steer his players to retain Dawkins‘s then-employer, a sports management agency, when they went pro. Dawkins proposed that Blazer develop a relationship with Evans, who could refer his players to Blazer for financial advice and management. Blazer, at the Government‘s direction, agreed to take over the payments.
Around this time, Blazer introduced Dawkins to Munish Sood, an investment manager, who, with Blazer, took over the payments to Evans. In March 2016, Dawkins, Blazer, Sood, and Evans met and discussed recruiting and paying players as well as the value of building relationships with assistant coaches. Dawkins later explained to Blazer and Sood that paying coaches was advantageous, since coaches could refer still other players if an initial referral did not work out, and they could limit other potential agents’ and advisors’ access to their players. In exchange for the bribes Blazer and Sood began to pay, Evans introduced them to one player and to another player‘s mother. During trial, Blazer and Sood testified extensively about their understandings of these recorded conversations.
In June 2017, Dawkins, Sood, and “Jeff D‘Angelo,” an undercover FBI agent posing as a wealthy businessman, formed a sports management company, LOYD, Inc. (“LOYD“). The plan was for LOYD to develop relationships with college basketball coaches, who would in turn refer players to LOYD for sports management services upon turning pro.
Later in June 2017, two recorded meetings relevant to this appeal occurred in New York. First, Sood and D‘Angelo met with University of Arizona assistant basketball coach Emanuel “Book” Richardson to discuss buying access to Richardson‘s players. At the close of the meeting, D‘Angelo handed Richardson five thousand dollars. Second, immediately after the Richardson meeting, Dawkins, Blazer, Sood, and D‘Angelo met with Merl Code—a consultant for Adidas, a major sports apparel company—who had extensive relationships with basketball coaches and players. The purpose of this meeting was to see whether Code could help LOYD generate business by introducing the LOYD group to his basketball contacts. At the end of this meeting, D‘Angelo gave Code two thousand dollars.
In July 2017, Dawkins, Blazer, and D‘Angelo met ten college coaches in Las
III. The defendants’ challenges under 18 U.S.C. § 666(a)(2)
The defendants’ primary argument on appeal is that the district court misconstrued
A. The Superseding Indictment properly alleged a violation of 18 U.S.C. § 666(a)(2) .
We find no error in the district court‘s denial of the defendants’ motion to dismiss the Superseding Indictment, which we review de novo.7 “An indictment is sufficient as long as it (1) ‘contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend,’ and (2) ‘enables the defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense.‘”8 To satisfy these requirements, “an indictment need do little more than . . . track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.”9 Here, Counts One and Two used the same words as
factual nature of the charges. This was more than enough background to inform the defendants of when
The defendants argue that the district court should have gone further and weighed whether certain factual allegations in the Superseding Indictment—specifically that the coaches were “agents” of the universities and that the bribery scheme was “in connection” with the universities’ “business” of running an athletic program—were consistent with the charged violations. The defendants interpret
proceedings—something that “does not exist in federal criminal procedure.”11 Thus, the district court correctly denied the defendants’ motion to dismiss the Superseding Indictment.
B. The Government proved a violation of § 666(a)(2) .
The defendants also argue, in the alternative, that the district court should have applied their proposed narrower definitions of “agent” and “business“—a claim that we read as a challenge both to the jury instructions and to the sufficiency of the evidence. These arguments turn largely on the same grounds: (1) that the coaches were not in fact “agents” of the universities under
The defendants did not preserve these arguments before the district court,12 and so their challenges would appear to be reviewable only for plain error.13 Our standard
1. 18 U.S.C. § 666(a)(2) does not require a nexus between the “agent” of a federally funded organization and the federal funds the organization receives.
Section 666(a)(2) broadly prohibits conduct designed to improperly influence or reward the agents of certain federally funded organizations. In relevant part, the statute provides:
Whoever . . . corruptly gives, offers, or agrees to give anything of value to any 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[,] . . . [provided 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.
To determine whether a target of corrupt “influence or reward” is an “agent” for purposes of
The fourth element the government must prove beyond a reasonable doubt is that at the time alleged in the indictment, in or about 2016 to in or about 2017, any men‘s college basketball coach who received a payment from, or as facilitated by, the defendant you are considering was, in fact, an agent of the university that employed him. An agent is a person who is authorized to act on behalf of his organization. Employees are considered agents of the organizations that employ[] them.15
The italicized language of the jury charge closely tracked the language of the statute, both identifying that an agent must be “authorized to act on behalf” of the organization, and explaining that an “employee” falls within the list of statutorily enumerated types of agents. Because the charge accurately tracked the statute, it was not erroneous.
Dawkins and Code do not contest that a straightforward reading of the statute leads to this conclusion. Rather, they argue that we should disregard the plain language of
defendants assert, the term “agent” would sweep so broadly as to include employees such as “part-time janitor[s]” whose roles are not connected to “protecting the integrity
We do not write on a blank slate in reaching this conclusion. The Supreme Court has twice rejected similar attempts to engraft an extratextual “nexus” requirement onto
the related argument that the statute requires “a nexus between the bribery proscribed . . . and federal funding” to be a valid exercise of Congress‘s authority under Article I.19 The Court reasoned that the federal funds did not have to be directly affected by the bribery scheme because “corruption does not have to be that limited to affect the federal interest. Money is fungible . . . and corrupt contractors do not deliver dollar-for-dollar value.”20 Even if university employees like the basketball coaches in this case might not directly spend, misuse, or “fritter[] away” federal dollars,21 they nevertheless “pose[] a threat to the integrity of the [federally funded] entity, which in turn poses a threat to the federal funds entrusted to that entity.”22 In reaching this conclusion, Sabri built on the Court‘s earlier decision in Salinas v. United States, which held that the adjacent and nearly
identical provision in
Similarly unpersuasive is the defendants’ reliance on United States v. Sunia29 to support their argument that the coaches are not agents of federally funded organizations because the universities’ athletic programs—as opposed to the universities as a whole—do not receive federal funding. In Sunia, the U.S. District Court for the District of Columbia considered whether the defendants, who were employees of the legislative branch of the American Samoa government, were “agents” for the purposes of
Sunia is not helpful to the defendants. First, Dawkins and Code fail to explain why, for the purposes of
Second, Sunia did not concern
In
Having confirmed the legal meaning of “agent,” we can quickly dispatch the defendants’ challenge to the sufficiency of the evidence on this point. The undisputed trial evidence showed that the bribed coaches were employees of their universities throughout the course of the charged
The district court instructed the jury that “the phrase ‘business or transaction’ is not limited to transactions or to commercial business of the universities, but includes intangible aspects of the business of the organization,” and that the “business or transaction” involved in this case was “the operation and administration of the university‘s men‘s basketball program.”36 The defendants make two related arguments on this point, one essentially legal and the other essentially factual.
First, they argue that the term “business” in
The Seventh Circuit considered and rejected the same argument in United States v. Robinson, holding that the term “business” did not need to be understood in the commercial sense,38 and we agree with the Robinson court‘s analysis. At issue in that case was whether bribing a police officer to shield the defendant‘s drug trafficking operations from police scrutiny was in connection with the “business” of law enforcement for the purposes of
To begin, it concluded that the surrounding language of
Second, in what amounts to a challenge to the sufficiency of the evidence, the defendants challenge the characterization of the “business” affected by the scheme to bribe coaches. They argue that, at most, the payments related to recommending financial advisors to basketball players, or to running an NCAA-compliant athletic program—and that neither of those constitutes the “business” of a university under any definition of the term. But that is not how the jury was charged, or how the government presented its case. The court instructed that the business at issue here was “the operation and administration of the university‘s men‘s basketball program.”45 At trial, there was evidence of what that business entailed, including that: the coaches were employed to run those programs; they were expected to advise student-athletes about off-court decisions like selecting agents; they were expected to ensure compliance with NCAA rules; and their employment contracts prohibited
The defendants argue that this conclusion means that
IV. The statute is constitutional as applied to Dawkins and Code.
We review de novo,46 and find no error in, the district court‘s legal conclusion that
The defendants argue that
As we have already discussed, the district court‘s interpretation of “agent” and “business” was not impermissibly broad or divorced from the anti-bribery statute‘s intended purpose, which is to safeguard federal funds and the integrity of the institutions that receive them.
V. The district court did not abuse its discretion when making the challenged evidentiary rulings.
We now turn to the defendants’ numerous evidentiary challenges, which we find uniformly without merit. Judges are entrusted with considerable discretion when deciding which evidence to admit or exclude at trial.51 We will reverse for an abuse of discretion only when an evidentiary ruling is “manifestly erroneous”52 or “arbitrary and irrational.”53 “Either an error of law or a clear error of fact may constitute an abuse of discretion.”54
As an initial matter, we reject the defendants’ request for a heightened standard of de novo review as to their evidentiary challenges. While the Fifth and Sixth Amendments guarantee the right to present a defense,55 the defendants nevertheless must, “[i]n the exercise of this right, . . . comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.”56 “Restrictions on presenting evidence do not offend the Constitution if they serve ‘legitimate interests in the criminal trial process’ and are not ‘arbitrary or disproportionate to the purposes they are designed to serve.‘”57 Thus, when a district court restricts evidence based on a legitimate application of the Federal Rules of Evidence, abuse of discretion remains the proper standard for our review, and we will afford the district court the customary “wide latitude to exclude irrelevant, repetitive, or cumulative evidence.”58
Code sought to call Blondell Tutwiler and Warren Broughton as defense witnesses to testify to overhearing Code, on separate occasions, speaking on the telephone and telling his interlocutor: “Do not accept money from these people.”59 He now faults the district court for excluding this testimony on hearsay and relevancy grounds.
The hearsay ruling was error. Hearsay is an “out-of-court ‘assertion’ that is ‘offered to prove the truth of the matter asserted in the statement.‘”60 The statement “[d]o not accept money from these people” was an order, i.e., an imperative rather than a declarative statement, and it was offered not for its truth, but for the fact that it was said. It was therefore not hearsay.61
However, the district court did not abuse its discretion in excluding the statement on relevancy grounds.
The relevance of Code‘s statement, “[d]o not accept money from these people,” is conditioned on other facts, namely to whom Code was speaking and whom he meant by “these people.” According to Code, he was talking to the coaches he sent to Las Vegas to meet with members of LOYD, and he was ordering them not to take money at the meetings. To prove this, Code sought to introduce evidence that the dates of the phone calls coincided with the dates of the Las Vegas meetings where Dawkins bribed certain coaches. Code also proffered that the witnesses overheard him discussing meeting times and room numbers during one call. However, the proffered testimony was hazy about timing, indicating only that the phone calls occurred “in the weeks immediately preceding” the Las Vegas meeting. Further, Code did not proffer that these witnesses could have testified about who was on the other end of these phone calls, or to whom Code was referring when he said “these people.” Faced with such a meager proffer, the district court did not abuse its discretion in excluding testimony about these calls as irrelevant.
B. The district court did not abuse its discretion in refusing to admit testimony regarding Code‘s explanation of his agreement with LOYD.
Code also sought to offer Broughton‘s testimony that, sometime after overhearing
Broughton‘s proffered testimony did not reflect Code‘s state of mind within the meaning of
with LOYD was an assertion of fact—that is, an archetypal hearsay statement—not a statement of motive or intent. In sum, the district court acted well within its discretion in excluding this testimony.
C. The district court did not abuse its discretion in refusing to admit portions of Code‘s recorded phone call with Munish Sood.
Code also sought to introduce a portion of a recorded August 8, 2017, phone call between Code and Munish Sood. On the recording, Code recounted a previous conversation with Dawkins; he told Sood: “[I] said, Christian, look . . . You‘re not paying my guys.”66 The district court granted the Government‘s motion to preclude the recording as hearsay, finding that these statements also did not fall into the state of mind exception because “Mr. Code is recalling a past statement that he made and offering the fact that he made the statement for its truth.”67 The district court was correct.
- The district court properly excluded this phone call as hearsay.
“[A]n expression of state of mind on one occasion may be relevant to state of mind at a later time where the statement reflects ‘a continuous mental process,‘”68 but “[w]hether a statement is part of a continuous mental process and therefore admissible under the present state of mind exception is necessarily a question for the trial court.”69 We agree with the district court that Code‘s August 8, 2017, statement was not admissible to show his state of mind as of the time of the Las Vegas meetings. To the contrary, it was simply hearsay layered on hearsay—that is, an assertion of fact regarding an earlier assertion of fact. The most recent layer was the recorded call, when Code
- The district court did not abuse its discretion in refusing to admit the phone call under Rule 807.
Insofar as the district court also rejected Code‘s subsequent request to admit the phone call under the residual hearsay exception found in
[
Rule 807 ] permits admission of hearsay if (i) it is particularly trustworthy; (ii) it bears on a material fact; (iii) it is the most probative evidence addressing that fact; (iv) its admission is consistent with the rules of evidence and advances the interests of justice; and (v) its proffer follows adequate notice to the adverse party.72
As to the first prong, we found in Bryce that the defendant‘s statements were sufficiently trustworthy when obtained via covert wiretap and against the declarant‘s penal interest.73 Code‘s statement was obtained by wiretap, but it was not against his penal interest—in fact, it was self-serving. A few weeks before the call, Code and Sood entered a consulting agreement with Sood agreeing to pay Code a fee for referring professional basketball players to Sood‘s financial advisory business. Code, therefore, had an incentive to convince Sood of his ability to refer business to Sood without relying on bribing coaches. Code‘s statements on the call are thus not accompanied by sufficient guarantees of trustworthiness as required by
As to the third prong, the phone call was not “the most probative evidence addressing”74 the fact at issue because Dawkins testified at trial that Code had instructed him not to introduce one of their partners to any coaches who would accept bribes. Code, therefore, had a factual basis to argue that he instructed Dawkins not to bribe coaches, even without admitting the phone call. Because the recorded phone call did not meet the first or third prong of the Bryce test, the district court acted within its discretion in excluding it.
Dawkins sought to call then-University of Arizona head basketball coach Sean Miller and Louisiana State University head basketball coach Will Wade as witnesses to prove that Dawkins had “relationships with much more powerful coaches than the assistant coaches he was charged with bribing, and that he made no attempt whatsoever to bribe the more influential coaches.”75 Dawkins argues that this evidence tends show that he lacked specific intent to commit the charged offenses.
The district court did not abuse its discretion in refusing to allow testimony regarding Dawkins‘s relationships with coaches whom he did not bribe.
In urging otherwise, Dawkins offers three unconvincing theories. First, he argues that it would not have made sense for him to bribe assistant coaches, because “the head coach would have been the logically more influential person to bribe.”78 But that is just a variant of “good acts” evidence—like arguing that someone must not have robbed a small bank because he once passed up an opportunity to rob a bigger bank. And in any event, Dawkins himself explained (in a recorded call) why it made perfect sense to bribe only assistant coaches: head coaches are already “making too much money, and it‘s too risky.”79
Second, Dawkins argues that because he had pre-existing relationships with head coaches, he already had access to players and, therefore, lacked a motive to bribe lower-level coaches for access he already possessed. Dawkins forfeited this argument by failing to raise it before the district court, but in any event it is unpersuasive. There was no evidence that Dawkins had ever obtained any clients of his own, much less through head coaches.
Third, Dawkins contends that he needed to call Miller to rebut evidence suggesting that Dawkins wanted to bribe Miller. This final argument is both forfeited (because it was not presented to the district court) and meritless (because Miller could not
Accordingly, the district court did not abuse its discretion in refusing to allow Dawkins to call those witnesses.80
E. The district court did not abuse its discretion in admitting testimony of witnesses’ understandings of conversations with Dawkins and Code.
Throughout trial, the Government played audio and video recordings of conversations among Dawkins, Code, Blazer, and Sood. The defendants now fault the district court for permitting Blazer and Sood to testify, over objection, regarding their understanding of the conversations with Dawkins and Code in which they took part.
A lay witness‘s testimony must be “rationally based on the witness‘s perception,” “helpful to clearly understanding the witness‘s testimony or to determining a fact in issue,” and “not based on scientific, technical, or other specialized knowledge.”81 The rational-basis requirement “is the familiar requirement of first-hand knowledge or observation.”82 The helpfulness requirement “is designed to provide ‘assurance[] against the admission of opinions which would merely tell the jury what result to reach.‘”83
The district court did not abuse its discretion in permitting Blazer and Sood to testify regarding their understanding of conversations with Dawkins and Code. Blazer‘s and Sood‘s testimony was “rationally based on [their] perception[s].”84 They were participants in these conversations and therefore possessed the required first-hand knowledge of their context—knowledge that would not have been readily available to jurors on their own.85 As the district court noted, the conversations included jargon that was “not so well known to folks outside of that industry,”86 an industry in which Blazer had worked for over a decade, and therefore the testimony was “helpful to clearly understanding”87 the often-confusing recorded conversations.
VI. The district court made no reversible errors in providing the challenged jury instructions.
Dawkins and Code raise a number of challenges to the district court‘s jury instructions, claiming there was error in providing “false exculpatory” and “conscious avoidance” instructions and in failing to provide “adverse inference” and “multiple conspiracy” instructions. We review
A. Providing a false exculpatory instruction was harmless error.
Providing the false exculpatory instruction was error, but harmless. At trial, the Government questioned Dawkins about two recorded phone conversations. In the first call, Code was heard telling Dawkins: “We‘re just gonna take these fools’ money.”89 Dawkins testified that he understood that statement to mean that Dawkins and Code would not introduce D‘Angelo to coaches who were willing to accept money. In the second call, Dawkins was heard telling D‘Angelo, “I don‘t want you to go down that path.”90 Dawkins testified that this statement was made to convince D‘Angelo not to pursue paying coaches.
Prior to Dawkins‘s testimony, the Government advised the district court that it was not planning to request a false exculpatory charge. After Dawkins testified, however, the Government sought such an instruction, and, over defense objection, the court charged the jury:
Now, you‘ve heard testimony that a defendant made a statement in which he claimed that his conduct was consistent with innocence and not with guilt. The government claims that these statements in which the defendant attempted to exculpate himself are false. If you find that the defendant gave a false statement in order to divert suspicion from himself, you may infer that the defendant believed that he was guilty. You may not, however, infer on the basis of this alone that the defendant is, in fact, guilty of the crimes for which he is charged. Whether or not the evidence as to a defendant‘s statements shows that the defendant believed he was guilty and significance, if any, to be attached to any such evidence, are matters for you, the jury, to decide.91
Instructing the jury that false exculpatory statements can evidence consciousness of guilt is appropriate when the Government presents a substantial factual predicate at trial showing that the defendant made false statements in an effort to appear innocent.92 The instruction is most often (though not only) given when a defendant made false pretrial statements to law enforcement officers,93 and in any event it is typically limited to a defendant‘s pretrial statements.94
The Government‘s quarrel is not with Dawkins‘s recorded statements so much as his interpretation of them during his trial testimony. But we have never held that a defendant‘s trial testimony can prompt a false exculpatory instruction. When defendants testify, it is for the jury to decide whether to accept or reject their testimony, in whole or in part. In these circumstances, there was no reason to give the jury a special false exculpatory instruction merely because, at trial, the defendant offered an innocent explanation of his own prior statements that the Government disputed.
This error, however, did not affect Dawkins‘s and Code‘s substantial rights. The Government presented ample evidence of their guilt beyond Dawkins‘s testimony explaining the two phone calls, such as the recorded phone calls between Dawkins, Code, Blazer, and Sood, and the testimony of Blazer and Sood. Further, the district court instructed the jury that Dawkins‘s testimony should be “examine[d] and evaluate[d] . . . just as you would the testimony of any witness”95 and that guilt could not be inferred solely from a false exculpatory statement. These instructions rendered harmless any error in the false exculpatory instruction.96
B. The district court did not err in providing a conscious avoidance instruction.
Over Code‘s objection, the district court provided a standard conscious avoidance charge to the jury, based in part on Code‘s statements during a recorded conversation. As the defendants’ joint brief challenges this instruction only as to Code, we consider any error solely with respect to him.
“The doctrine of conscious avoidance (i.e., ‘willful blindness‘) prevents defendants from avoiding criminal liability by ‘deliberately shielding themselves from clear evidence of critical facts that are strongly suggested by the circumstances’ and that, if known, would render them guilty of a crime.”97 A conscious avoidance instruction is appropriate when a defendant claims to lack the knowledge necessary for a conviction, and the evidence presented at trial would permit a reasonable jury to conclude that the defendant was “aware of a high probability [of the fact in dispute] and consciously avoided
A conscious avoidance instruction was warranted in this case. Code placed his knowledge squarely in dispute by asserting that he was unaware that Dawkins was paying bribes to coaches. Moreover, the Government provided an ample factual predicate for the conscious avoidance charge. Specifically, it introduced evidence of a phone call between Dawkins and Code where the two discussed a meeting wherein Dawkins believed a coach received a $5,000 bribe. Code told Dawkins that he had spoken to the coach shortly after that meeting, but “we didn‘t discuss numbers, because I‘m not even sure if he wanted me to know. . . . But he would have told me if I‘d have asked, but I didn‘t ask.”99 This suggested that Code deliberately avoided learning the truth from the coach. Further, the Government introduced evidence that Code told Dawkins they should protect themselves by being paid only in cash. These “red flags” serve as evidence that Code wanted to conduct their activities so as to avoid detection, and that he was aware his dealings with Dawkins and other co-conspirators were illegitimate.100
C. The district court did not err in refusing to provide an adverse inference instruction.
Dawkins and Code requested an adverse inference instruction on the basis that one of the Government‘s “key witnesses,” undercover agent D‘Angelo, was unavailable to them. Initially, Dawkins and Code sought to call D‘Angelo to testify regarding alleged FBI misconduct, but after the district court precluded this testimony as irrelevant, they sought an instruction permitting the jury to infer from the Government‘s failure to call D‘Angelo that the agent‘s testimony would have been adverse to the Government‘s case. The district court declined to provide an adverse inference instruction and instead instructed the jury:
There are several persons whose names you may have heard during the course of the trial but did not appear to testify. I instruct you that each party has an equal opportunity, or lack of opportunity, to call any of these witnesses. Therefore, you should not draw any inferences or reach any conclusions as to what they would have testified to had they been called. Their absence should not affect your judgment in any way. You should, however, remember my instruction that the law does not impose on a defendant in a criminal case, the burden or duty of calling any witness or producing any testimony.101
The district court did not err in giving the quoted instruction or in refusing to provide an adverse inference instruction. An adverse inference instruction is appropriate “[w]hen ‘a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction’ and fails to produce such witnesses.”102 In such a case, “the jury may infer that ‘the testimony, if produced,
D. The district court did not err in refusing to provide a multiple conspiracy instruction.
Code requested a multiple conspiracy instruction, arguing that the evidence “seem[ed] to demonstrate different agreements with different sort[s] of goals of working together.”106 The district court refused to provide this instruction and, instead, charged the jury that the object of the single conspiracy at issue was “paying bribes or illegal gratuities to men‘s college basketball coaches intending to influence and reward those coaches in connection with the business of their respective universities.”107
The district court did not err in refusing to give a multiple conspiracy instruction. Such a charge is appropriate when “the evidence shows separate networks operating independently of each other,”108 but it is not warranted when the evidence shows “that each alleged member agreed to participate in what he knew to be a collective venture directed toward a common goal.”109 Though the jury heard evidence of several conversations among differing groups of people, those conversations did not constitute “separate networks operating independently of each other”110 and could not be considered distinct conspiracies. Therefore, the district court did not err in refusing to instruct the jury on multiple conspiracies.
VII. Conclusion
In sum, we hold as follows:
- The district court properly denied the motion to dismiss. The indictment was sufficient on its face, and the district court properly declined to consider, before trial, whether the Government would be able to prove the defendants’ guilt based on the factual allegations in the indictment.
- To prove a violation of
§ 666(a)(2) , the Government need not prove a nexus between the agent to be influenced or rewarded and the federalfunding that the organization receives. Specifically, the Government need not prove that the agent had any control over the federal funding received by the organization, or that the agent worked in a program, within the organization, that used those federal dollars. Accordingly: - The district court‘s jury instruction, which did not so limit the definition of “agent,” was not erroneous.
- The Government presented sufficient evidence that the coaches, as university employees, were “agents” of their universities.
- For purposes of
§ 666(a)(2) , the phrase “business or transaction” is not limited to commercial activities of the federally funded organization but includes noncommercial activities as well. Accordingly:- The district court‘s jury instruction that the “business” involved in this case was “the operation and administration of the university‘s men‘s basketball program” was not erroneous.
- The Government presented sufficient evidence that the bribery scheme was in connection with the business of the universities.
- Section 666(a)(2) was constitutional as interpreted and applied to the defendants.
- The district court did not abuse its discretion in making any of the challenged evidentiary rulings.
- Although the district court erred in providing a false exculpatory instruction to the jury, the error was harmless. The defendants’ remaining challenges to the jury instructions lack merit.
We therefore AFFIRM the district court‘s October 22, 2019, judgments of conviction.
Notes
The business or transaction that the defendant you are considering sought to influence does not have to relate to federal funding. In other words, while you must find that the university that employed the relevant men‘s basketball coach received more than $10,000 in federal benefits, the defendants need not have paid, offered, or agreed to offer bribes as to any business or transaction having to do with the federal funding. Further, the phrase “business or transaction” is not limited to transactions or to commercial business of the universities, but includes intangible aspects of the business of the organization. . . . Here, the government argues that the defendants offered or agreed to give something of value corruptly with the intent that the men‘s college basketball coach be influenced or rewarded in connection with some business or transaction of that coach‘s university, namely, the operation and administration of the university‘s men‘s basketball program.