UNITED STATES OF AMERICA v. JAMES E. SNYDER
No. 21-2986
United States Court of Appeals, Seventh Circuit
Argued January 18, 2023 — Decided June 15, 2023
In the United States Court of Appeals For the Seventh Circuit
No. 21-2986
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES E. SNYDER, Defendant-Appellant.
ARGUED JANUARY 18, 2023 — DECIDED JUNE 15, 2023
Before HAMILTON, JACKSON-AKIWUMI, and LEE, Circuit Judges.
HAMILTON, Circuit Judge. Appellant James Snyder is a former mayor of Portage, Indiana. He was convicted of federal funds bribery in violation of
purchases of garbage trucks. Snyder was also convicted of obstructing the administration of federal revenue laws in violation of
I. Factual and Procedural History
A. Purchases of Garbage Trucks by the City
We begin with a summary of the facts, adding more details below as relevant for each of Snyder’s challenges. Snyder was elected mayor of Portage, Indiana and took office in January 2012. In December 2012 and November 2013, his administration announced that it would purchase garbage trucks for the city through public bidding. Both contracts were awarded to Great Lakes Peterbilt (GLPB), a Portage truck dealer owned by two brothers, Robert and Stephen Buha. The mayor put his longtime friend Randy Reeder in charge of the bidding process. Reeder testified at trial that he drafted the bid specifications to favor GLPB. Evidence at trial also showed that Mayor Snyder was in frequent contact with the Buha brothers—but no other bidders—during the bidding process. Less than three weeks after the second contract was awarded, GLPB paid Snyder $13,000.
B. Snyder’s Dealings with the IRS
Years before Snyder was elected mayor, his business, First Financial Trust Mortgage, failed to pay its payroll taxes in full for 2007, 2008, and 2009. The IRS then
Mortgage as a division of GVC Mortgage. Snyder sent invoices to GVC Mortgage for costs ostensibly incurred in operating First Financial Trust Mortgage. But rather than having GVC Mortgage reimburse First Financial Trust Mortgage, Snyder had GVC Mortgage send reimbursements to a different company that Snyder had created called SRC Properties. If the reimbursement checks had been deposited into First Financial Trust Mortgage’s bank account, they would have been subject to the IRS levy.
Snyder was also behind in paying his personal taxes, and in December 2010 and February 2011, the IRS levied his personal bank accounts. In trying to negotiate a settlement or installment plan with the IRS on his personal taxes, Snyder submitted three Form 433-As. In each, he purported to disclose fully his assets and liabilities under penalty of perjury. On all three forms, Snyder failed to report that he owned SRC Properties, and on two of the forms, he omitted his employment with GVC Mortgage.
C. District Court Proceedings
In November 2016, a federal grand jury indicted Snyder for federal funds bribery and obstructing the IRS. He went to trial in January and February 2019. The jury convicted on one count of federal funds bribery and one count of obstructing the IRS and acquitted Snyder on a separate bribery charge involving the city’s towing contracts. Snyder then moved for a judgment of acquittal or a new trial on the counts of conviction. The district court denied the motion for acquittal but granted Snyder a new trial on the bribery charge. Snyder was
retried on the bribery charge in March 2021, and the jury again returned a verdict of guilty.1
Snyder now appeals, challenging decisions on motions to dismiss, jury instructions, and sufficiency of the evidence. We have organized Snyder’s challenges into three parts. Part II addresses Snyder’s argument that the district court erred in denying his motion to dismiss the indictment or disqualify the prosecution team after the government, pursuant to a search warrant, seized communications between Snyder and his attorney. Part III considers two challenges specific to the IRS obstruction count: his statute of limitations defense and the sufficiency of the evidence. Finally, in Part IV, we address speedy trial, jury instruction, and sufficiency-of-the-evidence challenges to Snyder’s federal funds bribery conviction.
II. Challenges to the Seizure of Snyder’s Emails
First, Snyder argues that the district court erred in denying his motion to dismiss
A. Background
In September 2015, the government obtained a search warrant for Snyder’s personal and City of Portage email accounts. At that time, Snyder had not yet been indicted, but he knew he was under investigation and had retained counsel. The government was aware that Snyder had retained counsel, so it developed a filter process to prevent the prosecution team from receiving privileged communications among Snyder’s emails seized under the warrant.
At an evidentiary hearing in the district court, the lead FBI agent testified that after he received data from Snyder’s email providers, he arranged for the data to be copied, secured the original hard drive, and then sent the copied data to the FBI’s Investigative Data Management System. The agent provided a list of search terms to identify potentially privileged communications, which the computer applied to “quarantine” roughly 8,600 of 109,000 emails. A team of FBI employees who were not otherwise involved in Snyder’s case then examined the quarantined documents. Those employees were not attorneys but were instructed on criteria for privileged attorney-
client communications and were advised to err on the side of caution. Of the roughly 8,600 emails sent to the team, they identified 900 as potentially privileged. Those 900 emails were then sent to an Assistant U.S. Attorney for a final review. The reviewing attorney worked in the same office as the prosecution team but was not otherwise involved in Snyder’s case. She identified roughly 300 emails as privileged, which were not provided to the prosecution team.
Snyder was indicted in November 2016. In February 2018, he moved to dismiss the indictment, or, in the alternative, to disqualify the prosecution team. He argued that members of the prosecution team intruded on his attorney-client relationship by reviewing privileged communications with his attorney in violation of the Sixth Amendment. Snyder identified roughly forty emails that he argued were privileged but had been shared with the prosecution team. Snyder also argued that the search warrant was overbroad, in violation of the Fourth Amendment.
Judge Van Bokkelen denied Snyder’s motion. United States v. Snyder, No. 2:16-CR-160 JVB, 2018 WL 4637253, at *9 (N.D. Ind. Sept. 27, 2018). The court began by analyzing whether any of the forty-some emails Snyder identified were indeed privileged. The court identified three exhibits that should not have been shared with the prosecution team. Two were emails regarding consulting contracts, but they were not related to this case. The third was a compilation of emails containing Quickbooks financial data that Snyder had generated upon his attorney’s request. The government already had access to at least some of the Quickbooks data, but the court found that Snyder suffered some prejudice by the disclosure because the Quickbooks emails made it easier for the government to
analyze his finances. The court prohibited the prosecution team from using the Quickbooks data or evidence stemming from it at trial. Id. at *8.
The court then evaluated the government’s filter process. The court commented
Turning to the constitutional arguments, the court found no violation of the Sixth Amendment. The emails had been seized and the filter process completed before Snyder was indicted in November 2016, and only at that time did his Sixth Amendment right to counsel attach. Snyder, 2018 WL 4637253, at *7. The court also concluded that seizure of Snyder’s emails under the warrant did not violate the particularity requirement of the Fourth Amendment. Id. at *8.
B. Analysis
We review the district court’s findings of fact for clear error and its legal conclusions de novo. See United States v. Pace, 48 F.4th 741, 747 (7th Cir. 2022); United States v. Arceo, 535 F.3d 679, 684 (7th Cir. 2008).
1. Fourth Amendment
On appeal, Snyder argues that the government’s warrant was overbroad because it sought “all information” associated with his email accounts and was not limited by date or time. Snyder notes that the warrant affidavit focused on events that occurred from 2011 through 2014, and he suggests that the warrant should have been limited to that time frame.
The Fourth Amendment requires that warrants be supported by probable cause and that they “particularly describ[e] the place to be searched, and the persons or things to be seized.”
Even if we assume that the warrant might have been overbroad in violation of the Fourth Amendment, the district court did not err in denying Snyder’s motion to dismiss. The remedy for such Fourth Amendment violations in a criminal proceeding is suppression of the evidence, not dismissal of the indictment or disqualification of the prosecution team. United States v. Morrison, 449 U.S. 361, 366 (1981) (remedy for searches and seizures contrary to Fourth Amendment in
criminal proceeding “is limited to denying the prosecution the fruits of its transgression”).2 We deny this challenge.
Snyder next argues that the district court erred in finding no violation of his Sixth Amendment rights. He insists that the government’s filter process was deficient because it was conducted solely by government agents, without court oversight or participation by Snyder’s counsel. Snyder characterizes the seizure of emails and the challenged filter process as an intentional intrusion into his attorney-client relationship for which dismissal of the indictment was an appropriate remedy.
The Sixth Amendment guarantees assistance of counsel to the “accused” in “all criminal prosecutions.”
The attorney-client privilege, by contrast, is not a constitutional right but an evidentiary privilege. Lange v. Young, 869 F.2d 1008, 1012 n.2 (7th Cir. 1989). It applies in criminal and civil proceedings to protect confidential communications between attorney and client made for the purpose of seeking or providing legal advice. United States v. BDO Seidman, LLP, 492
F.3d 806, 815 (7th Cir. 2007). A violation of the attorney-client privilege is not a per se violation of the Sixth Amendment. Nevertheless, a government intrusion into the attorney-client relationship can in some circumstances violate the Sixth Amendment. See, e.g., Shillinger v. Haworth, 70 F.3d 1132, 1134–36, 1138 (10th Cir. 1995) (holding that Haworth’s Sixth Amendment rights were violated when deputy sheriff, who was present at meetings between Haworth and his attorney, disclosed defense’s trial strategy to the prosecution, who used that information to impeach Haworth at trial); Bishop v. Rose, 701 F.2d 1150, 1151, 1155 (6th Cir. 1983) (finding Sixth Amendment violated where defendant’s handwritten statement, prepared at his attorney’s request, was discovered by prison guards, sent to the prosecutor, and used to impeach defendant’s credibility at trial).
The seizure and filtering of Snyder’s emails did not violate his Sixth Amendment right to counsel because the right had not yet attached. The government seized Snyder’s emails in September 2015 and completed its filter process in early 2016, well before Snyder was indicted in November 2016. Because Snyder’s Sixth Amendment right to counsel had not attached, the conduct he complains of could not violate that right. It makes no difference for purposes of the Sixth Amendment that Snyder had already retained counsel, who was representing him in negotiations with the government regarding criminal charges. Moran v. Burbine, 475 U.S. 412, 430 (1986) (“[I]t makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation.”); United States ex rel. Shiflet v. Lane, 815 F.2d 457, 465 (7th Cir. 1987) (defendant “cannot claim the protection of the sixth amendment merely because
he retained counsel prior to the filing of charges against him”).
In Weatherford v. Bursey, 429 U.S. 545 (1977), the Supreme Court considered whether the presence of an undercover agent at a meeting between a defendant awaiting trial and his attorney violated the Sixth Amendment. The Court rejected the per se rule proposed by the defendant. Id. at 550–51. Instead, the Court found that under the facts before it, the Sixth Amendment was not violated. Id. at 558. The Court observed that the agent did not disclose the details of the conversation to the government, none of the state’s evidence originated in the conversation, the agent did not testify about the conversation at trial, and, in short, the conversation was not “used in any other way to the substantial detriment” of the defendant. Id. at 554. The Court also stressed that the agent was invited to the meeting by the defendant. It was not a “situation where the State’s purpose was to learn what it could about the defendant’s defense plans.” Id. at 557. Because there was “no tainted evidence in [the] case, no communication of defense strategy to the prosecution, and no purposeful intrusion” by
the agent, the defendant’s right to effective assistance of counsel was not violated. Id. at 558.
Here, the seizure and filtering of Snyder’s emails resulted in three privileged documents being shared with the prosecution team. Two documents concerned consulting contracts unrelated to the case against Snyder, so their disclosure caused no prejudice to Snyder in this case. The only disclosure that was possibly detrimental, the Quickbooks data, had already been shared in part with the government, and the district court ordered the government not to use the data or any evidence derived from it at trial. Moreover, after an evidentiary hearing, the district court found that there was “no evidence, or even suggestion,” that the privileged files were shared with the prosecution team with the intent that they be used to prosecute Snyder. 2018 WL 4637253, at *6. As in Weatherford, there was here no intentional intrusion by the government, no tainted evidence from the few improper disclosures, and no communication of defense strategy. Under these circumstances, we find no violation of the Sixth Amendment right to counsel.
Still, Snyder argues that the filter process used in his case was deficient and that similar protocols have been rejected by the Third, Fourth, Sixth, and Eleventh Circuits. We disagree. As an initial matter, in none of the cases Snyder cites did the court find that a defective filter process violated the Sixth Amendment or required the indictment to be dismissed, as Snyder argues here.
Each case is distinguishable from Snyder’s in other ways as well. The Eleventh Circuit in In re Sealed Search Warrant & Application, 11 F.4th 1235, 1252 (11th Cir. 2021), actually approved of the government’s filter process. In re Grand Jury
Subpoenas, 454 F.3d 511 (6th Cir. 2006), concerned subpoenas, not a search warrant. Though the Sixth Circuit rejected the
Next, Snyder cites In re Search of Electronic Communications, 802 F.3d 516 (3d Cir. 2015), for the proposition that non-lawyer federal agents may not make privilege determinations. While this may be sound policy, the Third Circuit’s order was not a constitutional holding but a prospective, cautionary measure designed to protect a privilege holder’s rights. Id. at 530. The court did not find that review by non-attorney federal agents necessarily violated the attorney-client privilege, much less the Sixth Amendment.
Snyder’s strongest support comes from In re: Search Warrant Issued June 13, 2019, 942 F.3d 159 (4th Cir. 2019), but it too is readily distinguishable. As part of its investigation into “Lawyer A,” an attorney at a Baltimore law firm suspected of aiding the crimes of “Client A,” the government searched the law firm and seized “voluminous materials,” including all of Lawyer A’s email correspondence. Id. at 165–66. Only 0.2% of the seized emails were sent to or from Client A or contained his surname. Id. at 172. An “extensive” portion of the seized
emails concerned other firm clients, some of whom were also being investigated or prosecuted by the same U.S. Attorney’s Office. Id. at 167. Invoking the attorney-client privilege, the law firm sought an injunction to stop the filter team of government employees from reviewing the seized communications. Id. at 168. The district court denied the firm’s request, but the Fourth Circuit reversed and ordered that the magistrate judge conduct the privilege review. Id. at 170. The Fourth Circuit reasoned that the firm would be irreparably harmed if the government were permitted to view communications regarding its other clients. Id. at 172. The court also concluded that the firm was likely to succeed on the merits of its claim because the filter protocol approved by the magistrate judge impermissibly assigned judicial functions to the executive branch. Id. at 176.
Snyder’s case is distinguishable. To start, In re: Search Warrant concerned the seizure of an attorney’s email correspondence, not that of a client, and the Fourth Circuit was focused on the harm posed to clients other than Client A, the target of the government’s investigation. The court also emphasized that the vast majority of seized emails—99.8%—were apparently unrelated to the government’s investigation.
Despite these distinguishing facts, Snyder encourages us to read In re: Search Warrant as holding that all privilege reviews in criminal investigations must be performed by a judicial officer. We are not persuaded. The Fourth Circuit criticized the magistrate judge’s approval of the filter protocol—which occurred before the law firm invoked privilege—on the grounds that resolution of privilege “disputes” is a judicial function. 942 F.3d at 176 (Once “a dispute arises as to whether” communications are privileged, “the resolution of
that dispute is a judicial function.”). If the Fourth Circuit meant that once a claim of privilege is made, a court may not delegate its responsibility to resolve
To be sure, where law enforcement has reason to expect that a search (electronic or otherwise) will sweep up privileged communications, it should take appropriate measures to avoid intruding on attorney-client relationships. We are not convinced, however, that the filter process used here would have been rejected by other circuits, nor do we agree that the Constitution required earlier participation of defense counsel or oversight by the district court.
In sum, Snyder’s Sixth Amendment rights were not violated by the seizure and subsequent filtering of his emails because the right had not yet attached. Even if the right had attached, the filter process would not have violated his Sixth Amendment rights where there is no indication that the government purposefully intruded on the attorney-client relationship or that privileged materials were disclosed to
Snyder’s detriment. The district court did not err in denying his motion to dismiss on this basis.
III. Snyder’s Conviction for Obstructing the IRS
Next, we turn to Snyder’s arguments challenging his conviction for obstructing the IRS. Snyder challenges this conviction on two grounds. First, he argues the prosecution was barred by the statute of limitations. Second, he insists that his conviction was not supported by sufficient evidence.
A. Background
Before he was elected mayor, Snyder owned and operated First Financial Trust Mortgage in Portage. After First Financial Trust Mortgage failed to pay its 2007, 2008, and 2009 payroll taxes in full, the IRS notified the company that its bank accounts would be levied in July 2009. By the end of 2009, First Financial Trust Mortgage owed nearly $100,000 in payroll taxes.
In January 2010, Snyder agreed with GVC Mortgage that Snyder would operate First Financial Trust Mortgage (under the same name and at the same location) as a division of GVC Mortgage. Soon after reaching this agreement with GVC Mortgage, Snyder opened a bank account in the name of SRC Properties. Snyder then created invoices on SRC letterhead billing First Financial Trust Mortgage for services. He forwarded the invoices to GVC Mortgage, which paid SRC Properties directly. The government argued that by routing payments directly to SRC Properties, Snyder was able to conceal assets from the IRS, which had levied First Financial Trust Mortgage’s bank account.
During this time, Snyder was also behind in paying his personal taxes. In 2009, the IRS completed a civil audit of
Snyder’s 2005, 2006, and 2007 personal tax returns. He was assessed roughly $30,000 in taxes, penalties, and interest. In December 2010 and February 2011, the IRS levied Snyder’s personal bank accounts.
B. Statute of Limitations
In the district court, Snyder moved under Federal Rule of Criminal Procedure 7(d) to strike paragraphs 1-20 of Count 4 of the indictment as irrelevant and immaterial surplusage. Those paragraphs describe Snyder’s failure to pay payroll taxes in 2007, 2008, and 2009, his partnership with GVC Mortgage, his creation of SRC Properties, and his efforts to direct payments from GVC Mortgage to SRC Properties. Snyder argued that the paragraphs described conduct that occurred before November 17, 2010, outside the six-year statute of limitations period for violations of
The district court denied the motion. The court reasoned that the paragraphs were necessary to understand the alleged scheme and contained facts the government would need to prove at trial. The court recognized that the conduct alleged in the challenged paragraphs occurred outside the statute of limitations period, but it concluded that the alleged past conduct was “intertwined” with acts within the statute of limitations, “making the earlier acts relevant and proper to this case.”
On appeal, Snyder argues that the district court erred in failing to dismiss the
We review de novo a district court’s denial of a motion to dismiss on statute of limitations grounds. United States v. O’Brien, 953 F.3d 449, 454 (7th Cir. 2020). Here, however, Snyder did not seek dismissal of the tax obstruction count. He moved only to strike paragraphs 1-20 of the tax count—which describe his efforts to impede collection of his payroll but not his personal taxes—as surplusage. We review a district court’s denial of that motion for abuse of discretion. United States v. O’Connor, 656 F.3d 630, 645 (7th Cir. 2011). Regardless of how Snyder’s challenge is characterized, we find no error.
The six-year statute of limitations clock for a violation of
affirmative act to obstruct the IRS on or after November 17, 2010. It did so with respect to both personal and payroll taxes. The indictment alleged that, from 2010 to 2013, Snyder impeded the collection of his company’s payroll taxes by diverting payments from GVC Mortgage to SRC, which the IRS did not know about. With regard to his personal taxes, the indictment alleged that Snyder concealed the existence of
Snyder’s insistence that the district court erroneously intertwined his payroll tax and personal tax conduct misreads the district court’s order. The court simply recognized that, although paragraphs 1-20 did not describe conduct that occurred within the statute of limitations period, those paragraphs were essential to understand the government’s allegations that Snyder impeded the collection of payroll taxes by diverting payments to SRC after November 17, 2010. The district court did not err.3
C. Sufficiency of the Evidence
Snyder next argues that there was insufficient evidence to support the jury’s verdict on the tax count. We will overturn a conviction only if, viewing the evidence in the light most favorable to the government, “no rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” United States v. Maldonado, 893 F.3d 480, 484 (7th Cir. 2018), quoting United States v. Brown, 726 F.3d 993, 1005 (7th Cir. 2013). While this is a high hurdle for defendants to clear, the “height of the hurdle depends directly on the strength of the government’s evidence,” and a “properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” United States v. Moreno, 922 F.3d 787, 793 (7th Cir. 2019), quoting United States v. Garcia, 919 F.3d 489, 496–97 (7th Cir. 2019), quoting in turn United States v. Jones, 713 F.3d 336, 339 (7th Cir. 2013), and Jackson v. Virginia, 443 U.S. 307, 317 (1979).
A person violates the so-called “omnibus clause” of
proceeding. Id. at 1109–10, quoting United States v. Aguilar, 515 U.S. 593, 599 (1995).
The evidence here was sufficient to support the jury’s verdict. Evidence at trial established that Snyder owed personal and payroll taxes and that the IRS had taken “specific, targeted” steps to collect
Snyder’s arguments to the contrary are not persuasive. He notes that his personal taxes were paid in full before he was indicted, and he insists that paying via an installment plan, which the IRS permits, is not obstructive and did not give him
any unlawful benefit. Snyder also disputes that he omitted information on the 433-A forms. In his accountant’s copy of the 433-A form submitted in 2013, his ownership of SRC was reported on a page that is missing from the IRS’s copy. He suggests that pages or attachments might also be missing from the 2010 and 2011 forms that reported his employment with GVC Mortgage and his ownership of SRC. Snyder further argues that he did not report income from SRC because the company made little or no money in the relevant years and that, in any case, his failure to report income from SRC could not have impeded the IRS. He also claims that, although he did not list GVC Mortgage as an employer on his 2013 433-A form, he accurately reported his gross wages on that form. With regard to his payroll tax debt, Snyder argues that First Financial Trust Mortgage dissolved on June 14, 2010, and that he did not own GVC Mortgage, so any income earned by First Financial Trust Mortgage after that date could not be levied to pay its payroll taxes.
Snyder’s arguments were appropriate before the trial jury, but they do not entitle him to acquittal as a matter of law. The fact that he eventually paid his personal taxes on an installment plan did not prevent the jury from finding that he concealed income sources and assets from the IRS earlier in the process to try to obtain a favorable settlement. There is of course nothing per se obstructive about settling with the IRS or paying overdue taxes in installments. But evidence at trial showed that the IRS seeks to obtain a complete picture of a taxpayer’s income and assets so it can make a “fair assessment” when deciding whether to agree to a settlement or installment plan. A reasonable jury could conclude that Snyder omitted income and asset information on his 433-A forms in hopes of receiving a more favorable deal with the IRS.
Likewise, while the jury might have credited Snyder’s assertions that he reported his ownership of SRC Properties on pages or attachments that were missing from the IRS’s files, the jury was not required to draw that conclusion. The revenue agent testified that Snyder should have reported his ownership of SRC Properties
We are similarly unpersuaded by Snyder’s argument that his failure to report his modest income from SRC Properties could not have obstructed the IRS. The jury heard that thousands of dollars were deposited into and then withdrawn from SRC’s bank account each month. While this might have left Snyder with only modest net income each month, the jury could have reasonably credited the revenue agent’s testimony that Snyder’s ownership of SRC Properties would have been important to the IRS in assessing his ability to pay.
Nor are we convinced that Snyder is entitled to an acquittal because, as he argues, he reported his wages from GVC Mortgage on the 433-A form he submitted in 2013 even though he failed to list GVC Mortgage as his employer on that form. First, while the revenue agent testified that it was possible, no evidence at trial established that Snyder’s GVC Mortgage wages were included in the aggregate wage amount listed on the 2013 form. Second, the jury was not required to credit Snyder’s argument given evidence of his other omissions on the 433-A forms, including his failure to report his employment with GVC Mortgage or any wages on the 433-A form he filed in 2010.
Finally, the jury could reasonably conclude that Snyder diverted payments from GVC Mortgage to SRC to avoid the IRS’s levy on First Financial Trust Mortgage’s bank account and thereby to impede the IRS. While Snyder’s mortgage company was administratively dissolved in June 2010, the jury heard evidence that the IRS continued its attempts to collect and sent levy notices to First Financial Trust Mortgage in August 2011. The jury could reasonably conclude that routing payments to SRC obstructed, or had the potential to obstruct, the IRS’s efforts to collect First Financial Trust Mortgage’s payroll taxes. Sufficient evidence supported the jury’s verdict.4
IV. Challenges to Snyder’s Conviction for Federal Funds Bribery
Last, we consider several challenges to Snyder’s conviction for federal funds bribery. First, Snyder argues that his statutory and constitutional rights to a speedy trial were violated by the delay between his first and second trials. Second, he insists that
A. Background
Snyder took office as mayor of Portage in January 2012. In January 2013 and December 2013, Portage awarded two contracts worth a total of $1.125 million to Great Lakes Peterbilt (GLPB), the trucking company owned by Robert and Stephen
On December 13, 2012, the city issued the first invitation to bid. The invitation sought bids to sell three garbage trucks. It specified that the trucks must be unused and the manufacturer’s current production model. At trial, the government presented evidence that Reeder tailored the bid specifications to favor GLPB. Reeder testified that he based the chassis specifications on a Peterbilt chassis, which naturally favored the Buhas’ Peterbilt dealership. Reeder also specified that the trucks must be delivered within 150 days, a deadline that was suggested to him by GLPB, but was an unusually fast turnaround for a new garbage truck.
Roughly two weeks before the Board of Works was scheduled to meet to award the first contract, Reeder circulated a chart summarizing the bids. He highlighted GLPB’s bid and calculated the difference between its bid and every other bid. At the Board of Works meeting on January 28, 2013, the Board was informed that only GLPB’s bid was fully responsive to the invitation’s specifications, including the 150-day delivery
deadline. Mayor Snyder’s appointee moved to award the contract to GLPB, and the Board voted in favor.
That same month, the manager of GLPB approached Reeder to see whether the city wanted to purchase an unused, 2012 model truck that had been sitting on GLPB’s lot for two years. Mayor Snyder first tried to purchase the truck outright, but he was informed by the city attorney that the truck was too expensive to be purchased without going through the public bidding process.
The Board of Works then announced a second bid for two garbage trucks on November 15, 2013. Again, the bid invitation specified that the trucks should be unused and the manufacturer’s current production model. The invitation to bid sought two trucks, but it specified a smaller engine and transmission for one of the trucks. Reeder testified that he adjusted those specifications to match the truck sitting on GLPB’s lot. A mechanic for the city testified that, from a maintenance standpoint, it made little sense to purchase trucks with different specifications.
GLPB was the lowest responsive, responsible bidder, and it was awarded the second contract at a Board of Works meeting on December 23, 2013. Neither Reeder nor Mayor Snyder informed the Board that one of the trucks it was purchasing from GLPB was a 2012 model, so it did not meet the bid specifications.
Evidence at trial showed that Snyder was in frequent contact with the Buha brothers around the time of the second-round bid. Mayor Snyder’s calendar showed a scheduled lunch with Robert Buha on December 12, 2013, one day before the second-round bids were due. Phone records revealed
twenty-nine phone calls or text exchanges between the mayor and the Buha brothers in the four weeks between the announcement of the second-round bid and the date the bids were due. Records showed an additional eighteen phone calls or text messages between Snyder and the Buhas in the ten days after bids were due until the contract was awarded. Mayor Snyder did not have phone contacts with any other bidders during that time.
On January 10, 2014, GLPB issued a $13,000 check to Snyder. GLPB’s controller, who issued the check at Robert Buha’s direction, testified that Buha told him they were paying Mayor Snyder for his influence. When the FBI later questioned Snyder about the check, he insisted it was payment for health insurance and information technology consulting he had provided to GLPB. But Mayor Snyder had also told Reeder that the $13,000 check was for payroll and telephone consulting he performed for GLPB. And Mayor Snyder had told someone else, a city planning consultant, yet another story: that GLPB paid him to lobby the state legislature on its behalf.
Robert Buha testified that he had conversations with Snyder about his employees’ health insurance and IT upgrades, but that in his opinion, Snyder’s services did not justify $13,000. GLPB employees, including the controller,
testified that to the best of their knowledge, Snyder did not perform any consulting work for the company.
B. Speedy Trial Rights
After a jury found Mayor Snyder guilty of federal funds bribery, the district court granted his motion for a new trial on that count on November 27, 2019. On November 19, 2020, Snyder moved to dismiss the bribery count, arguing that his retrial would fall outside the 70-day period permitted by the Speedy Trial Act and would violate his Sixth Amendment right to a speedy trial. The district court denied the motion. United States v. Snyder, No. 2:16-cr-160, 2021 WL 369674, at *1 (N.D. Ind. Feb. 3, 2021). We address Snyder’s statutory argument and then his constitutional argument.
1. Speedy Trial Act
When a defendant is to be retried after an order for a new trial, the Speedy Trial Act requires that the second trial commence within 70 days “from the date the action occasioning the retrial becomes final.”
Relevant here,
The statutory issue in this appeal boils down to whether one specific 45-day continuance from December 7, 2019 to January 20, 2020, granted on the government’s motion, should be excluded under the Act. At a hearing nine days after Snyder’s motion for a new trial was granted, the government explained that the U.S. Attorney’s Office for the Northern District of Illinois, which was supervising Snyder’s prosecution due to recusals by attorneys in the Northern District of Indiana, had not decided whether to retry Snyder. The government
Judge Van Bokkelen asked defense counsel if they had “any problem with that?” Counsel replied, “I don’t think so.” Judge Van Bokkelen then asked, “By don’t think so, is that going to change?” Counsel replied it would not and said specifically that Snyder did “not object on a speedy trial basis.” Judge Van Bokkelen granted the motion and ordered that the docket entry note that the delay was excluded under the Speedy Trial Act in the interests of justice.
Snyder contends that the 45 days should not have been excluded because Judge Van Bokkelen failed to state sufficiently on the record his findings that the continuance was in the interests of justice. Snyder argues further that it was an abuse of discretion to exclude the 45 days because the case was not sufficiently complex to merit the continuance.
The district court, which denied Snyder’s motion to dismiss under the Speedy Trial Act, excluded the 45 days from its calculation. Snyder, 2021 WL 369674, at *4. Among other reasons, the court found that Snyder had forfeited or waived
the issue of that particular continuance by failing to develop it in his initial brief. In his initial motion to dismiss in the district court, Snyder presented his Speedy Trial Act calculation in a chart that listed periods of time and designated each as excluded or not excluded. He designated the 45-day continuance as excluded, with the notation that the days were “waived pursuant to Mr. Snyder’s agreement … but see fn. 3.” In that footnote 3, Snyder asserted, without explanation, that the continuance was not supported by an “ends of justice” finding, and he questioned whether his waiver could effectively exclude the time. He then wrote that, “For purposes of the record only,” his position was that the 45 days were not excluded. But because he believed the government had exceeded the allowed 70 days even excluding the 45-day continuance, he said he would “not push the point.”
As we see the situation, the district court tried to make a clear record on the defense response to the continuance. When counsel hedged at first (“I don’t think so”), the judge rightly pressed for a more definitive position and got it: counsel said Snyder would not object on a speedy trial basis. And when Snyder and his counsel later briefed the speedy trial motion, they hedged more, but their clearest signal was that they would not “push the point” of the particular 45-day continuance.
The deliberately ambiguous dance around this 45-day continuance came very close to inviting error, which would certainly foreclose appellate review. Whether invited or not, Snyder certainly waived the issue by telling the district court he was not going to “push the point,” so appellate review is also foreclosed on that basis. See United States v. Cook, 406 F.3d 485, 487 (7th Cir. 2005) (“A forfeiture is basically an oversight;
a waiver is a deliberate decision not to present a ground for relief that might be available in the law.”). Even if Snyder had not expressly declined to press the argument, the footnote’s “skeletal” argument, which was “really nothing more than an assertion,” was insufficient to preserve his claim. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991); see also Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016) (“perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived”), quoting United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991). Although Snyder developed the argument in his reply brief in the district court, that was “too little, too late, for ‘[a]rguments raised for the first time in a reply brief are [also] waived.’” Harper v. Vigilant Ins. Co., 433 F.3d 521, 528 (7th Cir. 2005), quoting James v. Sheahan, 137 F.3d 1003, 1008 (7th Cir. 1998); see also United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006) (finding waiver where defendant did not develop issue in initial brief and raised it “in a meaningful way only in his reply brief”).
While we have some discretion to consider waived arguments for compelling reasons, we see no reason to exercise such discretion here. Snyder agreed to exclude the 45 days, and the continuance furthered the interests of justice by giving supervisors overseeing Snyder’s prosecution time to review transcripts and to make a considered choice regarding his retrial.
2. Sixth Amendment
We consider four factors in deciding whether a defendant’s Sixth Amendment right to a speedy trial has been violated: “(1) the length of the delay, (2) the reasons for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) any prejudice the defendant suffered by the delay.”
Hart v. Mannina, 798 F.3d 578, 596 (7th Cir. 2015), citing Barker v. Wingo, 407 U.S. 514, 530 (1972).
The district court found no violation of Snyder’s Sixth Amendment rights. Snyder, 2021 WL 369674, at *8. Because more than one year had passed since the order was issued granting Snyder a retrial, the court recognized that the delay was presumptively prejudicial. Id. at *7. The court, however, found that other factors weighed against finding a Sixth Amendment violation.
The court observed that the delay in Snyder’s case was caused largely by the global pandemic, which made holding trials unsafe for jurors, parties, and court staff. The court said this delay was justifiable and could not be attributed to the prosecution.
The court also noted that some of the delay resulted from consideration of motions Snyder filed and was therefore attributable to him. Snyder asserted his speedy trial right on November 2, 2020, but the court reasoned that this factor did not weigh strongly in his favor because he asserted his right after the delays of which he complained. Id.
Finally, the court concluded that Snyder—who was not in pre-trial detention, did not complain of undue anxiety or concern while awaiting trial, and did not argue that his defense was hampered in any way—was not prejudiced by the delay. Id. at *8. Weighing these factors together, the court concluded that Snyder’s constitutional right to a speedy trial was not violated. Id. We review a district court’s denial of a constitutional speedy trial claim de novo and its findings of fact for clear error. United States v. Bell, 925 F.3d 362, 375–76 (7th Cir. 2019).
We agree that the first factor favors Snyder. The delay was “presumptively prejudicial” because more than one year passed between the order for a new trial in November 2019 and Snyder’s second trial in March 2021. O’Connor, 656 F.3d at 643. Snyder timely asserted his speedy trial right on November 2, 2020, so we also weigh the third factor in his favor.
When assessing the second factor, we ask “whether the government or the criminal defendant is more to blame for [the] delay.” Doggett v. United States, 505 U.S. 647, 651 (1992). The district court found that the delay between Snyder’s first and second trials was principally due to the Covid-19 pandemic. We agree with the district court that the pandemic-related delays in Snyder’s case were justifiable and cannot fairly be attributed to the government. See United States v. Keith, 61 F.4th 839, 853 (10th Cir. 2023) (treating pandemic-related delays as a “neutral” factor favoring neither side). On appeal, Snyder does not challenge the district court’s determination that the delay was also caused by motions he filed. We therefore weigh this factor against Snyder.5
We also weigh the fourth factor against Snyder. We assess prejudice “in light of the interests the Sixth Amendment seeks to protect,” namely, preventing oppressive pretrial incarceration, minimizing anxiety and concern of the accused, and limiting the possibility that his defense will be impaired. Bell, 925 F.3d at 376, quoting United States v. Harmon, 721 F.3d 877, 883 (7th Cir. 2013). Snyder was not held in pre-trial detention.
Snyder argues that his defense was prejudiced by the fading memories of four witnesses who would have otherwise exonerated him. We are not convinced. Two of those witnesses, Reeder and Joseph Searle, claimed not to remember certain facts on the stand, but both had testified at Snyder’s first trial. The fact that Reeder’s and Searle’s previous testimony was available to refresh their memories or to impeach their later testimony belies Snyder’s contention that, if he had been tried earlier, Reeder and Searle could have exonerated him.
Snyder also claims he was prejudiced by Robert Buha’s inability to remember the consulting work Snyder had supposedly performed for GLPB. In fact, Buha testified that Snyder consulted on healthcare and information technology issues faced by GLPB. In any case, Buha was questioned about GLPB’s supposed consulting agreement with Snyder well before the second trial. The parties had the benefit of his statements to the FBI and his grand jury testimony on the matter, which were used to refresh his memory on the stand.
Finally, Snyder complains that John Beck, the city mechanic, had forgotten that he, not Snyder, was the source of the 150-day deadline in the first-round bid. Snyder bases this assertion on an FBI agent’s notes from an interview with Beck in 2015 indicating that Beck suggested the 150-day deadline. Snyder used the agent’s notes to impeach Beck’s testimony. Confronted with the agent’s report, Beck insisted that the agent had misunderstood him and that he had corrected the misunderstanding with the FBI soon after the interview. We
cannot see how an earlier trial would have changed Beck’s testimony or its impact on the trial.
In sum, although the delay in Snyder’s case was presumptively prejudicial and he asserted his speedy trial right, he is more to blame for the delay than the government, and he has not shown prejudice from the delay. The district court did not err in rejecting his Sixth Amendment speedy trial challenge.
C. The Scope of 18 U.S.C. § 666 —Bribes and Gratuities?
Next, Snyder contends that
Snyder pressed this argument at several points in the district court. Before trial, he moved to dismiss the count from the indictment. At trial, he proposed a jury instruction that would have defined bribe, reward, and gratuity and instructed the jury to acquit if the government proved that he solicited or accepted only a gratuity, agreed to and paid only after the fact. After trial, he again argued in his motion for acquittal that the evidence did not support a finding that he and
the Buhas had entered into an agreement before the contracts were awarded as, he argued, the statute requires. The district court denied each of these challenges, citing precedent from this court holding that
The district court correctly rejected Snyder’s proposed reading of
This circuit has repeatedly held that
taken the same position. See, e.g., United States v. Ganim, 510 F.3d 134, 150 (2d Cir. 2007); United States v. Porter, 886 F.3d 562, 565 (6th Cir. 2018); United States v. Zimmermann, 509 F.3d 920, 927 (8th Cir. 2007); United States v. McNair, 605 F.3d 1152, 1188 (11th Cir. 2010).
Snyder asks us to reconsider our precedent in light of contrary decisions by the First and Fifth Circuits in United States v. Fernandez, 722 F.3d 1 (1st Cir. 2013), and United States v. Hamilton, 46 F.4th 389 (5th Cir. 2022). Both cases held that
The First and Fifth Circuits relied on similarities between the language of
The First and Fifth Circuits also compared the punishments imposed by
Fernandez and Hamilton do not persuade us to overrule our precedents on this statute. “We do not lightly overturn circuit
precedent, and we give ‘considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments.’” Wesbrook v. Ulrich, 840 F.3d 388, 399 (7th Cir. 2016), quoting Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006). We understand the reasoning of the First and Fifth Circuits, and in particular the odd difference in possible sentences for illegal gratuities paid to federal officials and those paid to state and local officials. Still, for several reasons in addition to stare decisis, we are not persuaded to overrule our decisions holding that
First, as we have explained, the word “rewarded” in
Accordingly, we follow here our precedents holding that
evidence of a prior quid pro quo agreement. The district court did not err when it refused to dismiss the count from the indictment, when it declined to give Snyder’s proposed jury instruction, or when it denied his motion for judgment of acquittal.
D. Sufficiency of the Evidence
Last, Snyder argues that even if
To prove a violation of
Snyder challenges the sufficiency of the evidence at both trials, so we must consider the evidence presented to both
juries. (If the evidence at the first trial had been legally insufficient to convict, the Double Jeopardy Clause would have barred the second trial. See Burks v. United States, 437 U.S. 1, 18 (1978); Webster v. Duckworth, 767 F.2d 1206, 1207 (7th Cir. 1985).) Viewing the evidence in each trial in the light most favorable to the government, we find ample support for the juries’ verdicts. Mayor Snyder put his good friend Reeder in charge of the bidding process even though Reeder had no experience administering public bids. Reeder then tailored both bid requirements to favor GLPB. In the first-round invitation, Reeder based the chassis specifications on a Peterbilt chassis, and after GLPB told Reeder it could deliver trucks in 150 days, Reeder included a 150-day deadline. In the second round, Reeder tailored the bid specifications to match the truck that had been sitting on GLPB’s lot even though the truck was not the manufacturer’s current model. The second invitation to bid was issued after Mayor Snyder tried unsuccessfully to purchase the GLPB truck outright. Evidence at both trials established that Snyder communicated with the Buhas around the time of the second-round bid.
Less than three weeks after the second contract was awarded to GLPB, the Buhas had GLPB pay Snyder $13,000. When questioned by the FBI, Snyder claimed the $13,000 check was payment for healthcare and information-technology consulting he performed for GLPB. When pressed for specifics, Snyder could not identify any work product he provided GLPB. He said that he went to meetings and “discussed things.” Although Snyder claimed to have advised GLPB on healthcare options after passage of the Affordable Care Act, he could not recall what decision GLPB made regarding its employees’ insurance coverage. The government subpoenaed GLPB and Snyder for all documentation, correspondence,
work product, and billing records related to Snyder’s consulting work for GLPB. No such evidence was produced.
Given irregularities in the bidding process, Snyder’s contemporaneous contacts with the Buhas (unique among bidders), the timing of the $13,000 payment, the dubious explanations offered for the payment, and the lack of corroborating evidence for Snyder’s claim that he was paid for consulting, a reasonable jury could conclude that Snyder accepted the check as a bribe or gratuity for steering the contracts to GLPB.
Snyder’s arguments to the contrary are unpersuasive. He argues that the
Next, Snyder contends that he is entitled to a judgment of acquittal because the government failed to show that the $13,000 check was a bribe or gratuity in connection with both rounds of bidding, as opposed to only the second round. This is incorrect as a matter of both law and fact. As a point of law, evidence at trial need not exactly match allegations made in the indictment. See generally United States v. Miller, 471 U.S. 130, 136 (1985). As a point of fact, when viewed in the light most favorable to the government, evidence at trial showed that Reeder—whom Snyder put in charge of the bidding process—drafted the chassis and deadline specifications in the first round to favor GLPB.
Finally, Snyder insists that a rational jury would have to conclude that he performed some work for GLPB, which would make the $13,000 check bona fide income, not a bribe or gratuity. We disagree. A reasonable jury could conclude that even if Snyder spoke with the Buhas and on occasion offered his advice, the $13,000 check was not paid for consulting services. In response to the government’s subpoenas, neither Snyder nor the Buhas could produce a contract, billing records, work product, or any other documentation showing that Snyder worked for GLPB. This, as well as evidence that Reeder crafted both bids to favor GLPB, the timing of the payment, and Snyder’s contemporaneous communication with the Buhas, permitted a reasonable jury to conclude that the $13,000 check was not payment for consulting services. The evidence was sufficient to support both juries’ verdicts.7
The judgment of the district court is AFFIRMED.