United States v. Theodore SuhlUnited States v. Theodore Suhl
Appeal from United States District Court for the Eastern District of Arkansas - Little Rock
Submitted: September 21, 2017
Filed: March 22, 2018
Before COLLOTON, BENTON, and KELLY, Circuit Judges.
A jury convicted Theodore Suhl of bribing an Arkansas state official. He appeals, arguing that the district court1 improperly defined the crime of bribery when analyzing his indictment and instructing the jury, committed evidentiary errors, and unreasonably calculated the loss due to his bribery scheme. We address each argument in turn.
I. Facts
Three individuals are key to this case. The first is Suhl, a successful Arkansas businessman. Among the businesses that Suhl owned or ran were two for-profit companies that provided mental health treatment to juvenile Medicaid recipients. Between 2007 and 2011, these two companies received over $10 million per year in Medicaid reimbursement. The second is Phillip Carter, an Arkansas probation officer. Carter and Suhl knew each other because Carter frequently referred juveniles for treatment at Suhl‘s companies. The third is Steven Jones, a former state legislator and the second-in-command at the
Suhl knew Jones from Jones‘s days as a state legislator, and he sought to capitalize on that acquaintance. At some point, Suhl asked Carter to arrange a meeting with Jones; Carter replied that the meeting would only happen if Suhl paid Jones a $2,000 “fee.” Suhl agreed, and wrote a $2,000 check to the church Carter attended, telling Carter “y‘all know what to do with it, do what you want with it.” Soon afterward, Suhl met with Jones over dinner. After that meeting, Carter‘s church (through its pastor, John Bennett) wrote Jones a check for $2,000.
This pattern repeated itself for four years. Suhl would call Carter, Carter would call Jones, Suhl would pay Carter‘s church, Suhl and Jones would meet, and Carter‘s church would pay Jones. At their meetings, and by phone through Carter, Suhl would ask Jones to assist his businesses. Some of his requests were broad: “see what he can do to help us.” Others were more specific. In an effort to increase his companies’ Medicaid reimbursement rates, for example, Suhl asked Jones “to see if he can get the Medicaid portion of [ADHS] . . . up under his jurisdiction.” Suhl also sought more clients by asking Jones to increase the geographical radius from which one of his companies could receive referrals. And Suhl asked Jones to convince the governor to reappoint him to a state board that licenses and inspects juvenile residential treatment facilities.
Jones never specifically agreed to do any of the things Suhl asked. He told Suhl he would “look into” his requests, and sometimes reported that he had involved himself in a meeting so he could gain information for Suhl. But there is no evidence that Jones ever did anything more than inquire into Suhl‘s requests.
Suhl‘s last meeting with Jones was over dinner at a steakhouse in Memphis, Tennessee. Carter was also there. That meeting was comprehensively documented by the FBI, which was investigating Suhl and his companies. FBI agents were listening when Suhl called Carter to complain that a rival company was receiving all the ADHS juvenile mental health referrals in northeastern Arkansas. Suhl told Carter that he wanted Jones to put a stop to this, and to direct the referrals to one of his companies instead. Agents also heard Jones accept Carter‘s invitation to meet with Suhl, but only if Suhl had “enough time to make sure he‘s got everything together for us.” At the steakhouse, video surveillance recorded Suhl passing Carter a check intended for Jones.
FBI agents approached Carter soon after this final meeting. Confronted with the wiretap and video surveillance evidence, Carter agreed to help the FBI investigate Suhl and Jones. Agents watched when Carter—now working with the FBI—took Jones the check Suhl had given him at the dinner. Jones accepted the money, and the FBI confronted him. Jones also agreed to help the FBI.
A grand jury indicted Suhl on one count of conspiracy in violation of
II. Discussion
On appeal, Suhl alleges three sets of errors. First he argues that the district court misinterpreted the federal bribery statutes, leading to errors in analysis of the indictment and instruction of the jury. Next, Suhl contends that the district court violated his right under the Confrontation Clause by limiting cross-examination of two witnesses, and abused its discretion by excluding evidence of his charitable giving. Finally, Suhl claims that the district court failed to accurately calculate the loss due to his bribery for purposes of sentencing.
A. Application of the Bribery Statutes
Suhl objects to the way the indictment and the jury instructions applied the federal bribery statutes to his conduct. Because Suhl‘s arguments involve the interplay of several anti-bribery statutes, a bit of background is useful.
1. Background
Federal statutes criminalize both the making and the taking of bribes, with separate subsections laying out different elements for defendants who pay bribes (the payor) and defendants who take bribes (the payee). See, e.g.,
Suhl was charged under two federal bribery statutes. The first is
The second statute is
Following Skilling, it was unclear where courts should look to find the elements of honest-services bribery. Some have sought guidance from the general federal bribery statute,
indirectly, corruptly give[], offer[], or promise[] anything of value to any public official . . ., or offer[] or promise[] any public official . . . to give anything of value to any other person or entity, with intent . . . to influence any official act.”
a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee.
136 S. Ct. 2355, 2371-72 (2016) (quoting
2. Indictment
Suhl argues that the indictment—which was filed pre-McDonnell—failed to state an offense, and that the government, rather than correcting its mistake by filing a superceding indictment, simply constructively amended the indictment at trial. We review the district court‘s refusal to dismiss the indictment de novo, and we will reverse only if the indictment is “so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted.” United States v. Sewell, 513 F.3d 820, 821 (8th Cir. 2008).
Suhl‘s argument appears to have several parts: (1) McDonnell applies to both honest-services and federal-funds bribery; (2) McDonnell requires an agreement between bribe payor and bribe payee to exchange something of value for an official act and, because the indictment did not allege an agreement between Suhl and Jones, it did not state a crime; and (3) when the government became aware of this problem, it constructively amended the indictment. We address each part of the argument in turn.
Suhl asks us to apply McDonnell to both honest-services and federal-funds bribery. McDonnell interpreted the term “official act” in
Nevertheless, even if we assume that McDonnell‘s definition of “official act” applies to both honest-services and federal-funds bribery, we are unconvinced that McDonnell requires the sort of agreement that Suhl describes. Suhl cites to the language in McDonnell wherein the Court explained that “[t]o qualify as an ‘official act,’ the public official must make a decision or take an action on [a] ‘question, matter, cause, suit, proceeding or controversy,’ or agree to do so.” 136 S. Ct. at 2372. But that passage applied the definition of “official act” to the portion of
portion of the federal-funds bribery statute likewise requires payment with “intent to influence” a state actor “in connection
The indictment, therefore, adequately stated the offenses of honest-services and federal-funds bribery. Assuming official acts are required under both statutes, the indictment identified the official acts that Suhl sought to influence. It included transcripts of Suhl‘s phone calls with Carter, which detailed how Suhl asked Jones to increase Medicaid reimbursement to his companies, draw a larger area from which his companies could receive referrals, ensure his reappointment to a state review board, and end a referral policy that benefitted one of his competitors. The indictment incorporated these facts into both the honest-services and federal-funds bribery counts. All of these acts involved a request for the “formal exercise of governmental power,” as required by McDonnell, 136 S. Ct. at 2371-72. That placed Suhl on fair notice that the government was alleging that he had paid money with an intent to influence official acts, see Sewell, 513 F.3d at 821, and we do not understand Suhl to argue that the requests made in the phone calls detailed above did not qualify as formal exercises of governmental power under McDonnell.
Given that the indictment stated an offense, Suhl‘s assertion that the government constructively amended the indictment also fails. Constructive amendments occur “when the essential elements of the offense set forth in the
indictment are altered, either actually or in effect, by the prosecutor or the court after the grand jury has passed on them.” United States v. Begnaud, 783 F.2d 144, 147 n.4 (8th Cir. 1986). Reviewing the record de novo, see United States v. Renner, 648 F.3d 680, 686 (8th Cir. 2011), we conclude that there was no amendment because the government sought to prove at trial what it alleged in the indictment: that Suhl paid Jones with an intent to influence official acts.
3. Jury Instructions
Suhl raises three objections to the jury instructions. He claims that (1) the honest-service bribery instructions did not require the jury to find that he bribed Jones in exchange for an official act; (2) the federal-funds bribery instruction did not require an official act at all; and (3) the federal-funds bribery instruction failed to identify a specific business transaction valued at $5,000 or more. “[W]e review jury instructions for abuse of discretion, and will affirm the district court if the instructions, as a whole, sufficiently submit the issues to the jury.” United States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir. 2009) (quoting United States v. Farish, 535 F.3d 815, 821 (8th Cir. 2008)).
i. Honest-services Bribery
A bribe is complete when payment is offered or made with “a specific intent to give . . . something of value in exchange for an official act.” Sun-Diamond, 526 U.S. at 404-05 (emphasis omitted). Suhl argues that the honest-services bribery instruction did not require the jury to find that he paid Jones in exchange for an official act.
The instructions required the jury to find that Suhl “made . . . or offered
[ADHS], would take official actions that would benefit Mr. Suhl and his businesses.” The instructions also explained that Jones need not have completed an official act: “It is sufficient if Mr. Suhl knew that the money was offered with the intent to induce performance of an official act by Mr. Jones.” The phrase “scheme to defraud” was further defined as “any plan or course of action intended to deceive or cheat another out of the right to honest services where a bribe is paid with the intent that Mr. Jones take official action or an official act.” As Suhl points out, the phrase “in exchange for” is not in the instructions as given. But Suhl offers no support for the assertion that this specific phrase must be included when the instructions otherwise convey the quid pro quo required in a case against a payor defendant. See Sun-Diamond, 526 U.S. at 404-05 (“Bribery requires intent ‘to influence’ an official act. . . . In other words, for bribery there must be a quid pro quo—a specific intent to give . . . something of value in exchange for an official act.” (emphasis in original)). Read as whole, the instructions fairly submitted the quid pro quo element to the jury.5
ii. Federal-funds Bribery: Official Act
Suhl asserts that the federal-funds bribery instructions failed to require an official act as that term is defined in McDonnell.6 We again decline to decide whether the
Suhl argues that the federal-funds bribery instruction failed to require that his payments to Jones be connected to a specific business or transaction valued at over $5,000. But this court has previously rejected Suhl‘s reading of
or series of transactions . . . involving anything of value of $5,000 or more.”
B. Evidentiary Rulings
Suhl alleges error in two of the district court‘s evidentiary rulings. First, he argues that keeping the details of Carter‘s voter fraud conviction away from the jury violated his rights under the Confrontation Clause. Second, he argues the district court erred in refusing to admit evidence of his and his family‘s long history of donating to Christian causes.
We review Confrontation Clause claims de novo. United States v. Holmes, 620 F.3d 836, 840 (8th Cir. 2010). The Confrontation Clause requires that a criminal defendant be given the right to be “confronted with the witnesses against him.”
The jury heard that Carter had previously been convicted of voter fraud, and Suhl cross-examined him about his plea deal on that charge. The district court prohibited Suhl from probing the particulars of that conviction while cross-examining both Carter and an FBI agent. Suhl contends that in doing so, the district court denied him the opportunity to confront his accuser. But Suhl received that opportunity when he extensively cross-examined Carter. Suhl asked Carter about his voter fraud conviction and his agreement with the government. Carter admitted that the government allowed him to plead to only one count of voter fraud, charged him with only one count of bribery in connection with the Suhl scheme, and promised not to charge him with any other crimes if he testified truthfully against Suhl. Carter also testified that he hoped for an “immediate release” from prison if he provided “substantial assistance” against Suhl.
Suhl wanted to cross-examine Carter about the details8 of his prior voter fraud conviction, but “a district court may impose reasonable limits on cross-examination based on concerns about prejudice or confusion of the issues.” United States v. Sigillito, 759 F.3d 913, 938 (8th Cir. 2014) (quoting United States v. Jasso, 701 F.3d 314, 317 (8th Cir. 2012)). “The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” United States v. Watson, 650 F.3d 1084, 1089 (8th Cir. 2011) (quoting Fensterer, 474 U.S. at 20). Here, the district court did not limit Suhl‘s ability to expose Carter‘s motives for testifying against him, and excluding potentially distracting testimony about the details of Carter‘s prior unrelated criminal activity did not impermissibly limit Suhl‘s opportunity to confront his accuser. Any similar limitation on the testimony from the FBI agent was likewise permissible.
As to the district court‘s exclusion of evidence detailing the Suhl family‘s long history of giving to Christian causes, we review for an abuse of discretion. Watson, 650 F.3d at 1088. Suhl argues that this evidence was crucial to his defense because his track record of philanthropy undermined the government‘s theory that his payments to Carter‘s church were really bribes for Jones. We agree that evidence of Suhl‘s philanthropy was relevant to the issue of intent, but Suhl was allowed to introduce evidence of his regular contributions to Carter‘s church that were made long before the allegations contained in the indictment. Suhl himself testified that he was a frequent contributor to Christian causes. And Suhl‘s mother testified that Suhl‘s payments to Carter‘s church were not bribes, but were part of the family‘s long-running benevolence. Under these circumstances, we are reluctant to conclude that the district court abused its discretion in excluding the proffered evidence.
Nevertheless, evidentiary errors are harmless if they have only slight influence on the verdict and do not affect the defendant‘s substantial rights. United States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008). Harmlessness analysis considers the disputed evidence “in the overall context of the government‘s case.” United States v. Worman, 622 F.3d 969, 976 (8th Cir. 2010). Here, the record contained strong evidence that Suhl‘s payments to Carter‘s church were exactly what the government said they were: bribes that Suhl intended to exchange for Jones‘s official acts. Multiple wire-tapped conversations documented Suhl‘s repeated attempts to pay Jones to take official action to help out his companies. At most, exclusion of any additional evidence on the philanthropy issue had but a “slight influence” on the jury‘s verdict.9
D. Sentencing
Finally, Suhl objects to the way the district court calculated the loss caused by his bribery scheme. We review the district court‘s interpretation of the Sentencing Guidelines de novo and its loss calculation for clear error. United States v. Martinez, 690 F.3d 1083, 1086 (8th Cir. 2012).
In this case, the district court found that Suhl intended for Jones to divert all of the juvenile Medicaid cases in northeastern Arkansas to one of his companies between 2011 and 2012. The court looked at Suhl‘s company records and determined that Suhl reaped a profit of 2.9% on Medicaid reimbursements in 2011, and a 0.9% profit in 2012. The court then multiplied those profit margins by the 2011 and 2012 Medicaid reimbursements received by the competitor from whom Suhl wanted Jones to divert clients. The court then added the 2011 and 2012 estimated profit totals together to get an estimated intended loss of $176,820.
This calculation is indeed an estimate, but it is sufficiently reasonable to avoid clear error. Intended losses are frequently difficult to calculate. Here, the district court based its calculations on concrete information: wiretaps of Suhl‘s calls that indicate his intent, the Medicaid profit margin of Suhl‘s company, and the Medicaid reimbursements received by Suhl‘s competitor. The resulting loss estimate was reasonable.
Suhl contends that the facts do not back up the district court‘s calculation. Suhl argues that there is no evidence that Jones could get all of the juvenile Medicaid patients in northeastern Arkansas referred to Suhl‘s company. But the district court‘s loss calculation was based on the loss that Suhl intended, and
III. Conclusion
The judgment of the district court is affirmed.