Filed: Jun. 07, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 7, 2011 No. 09-14891 JOHN LEY _ CLERK D. C. Docket No. 08-00043-CR-CC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MACK S. SMITH, RICHARD E. LONG, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Georgia _ (June 7, 2011) Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges. PER CURIAM: A jury
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 7, 2011 No. 09-14891 JOHN LEY _ CLERK D. C. Docket No. 08-00043-CR-CC-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MACK S. SMITH, RICHARD E. LONG, Defendants-Appellants. _ Appeals from the United States District Court for the Northern District of Georgia _ (June 7, 2011) Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges. PER CURIAM: A jury c..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 7, 2011
No. 09-14891
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00043-CR-CC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MACK S. SMITH,
RICHARD E. LONG,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(June 7, 2011)
Before DUBINA, Chief Judge, EDMONDSON and WILSON, Circuit Judges.
PER CURIAM:
A jury convicted Mack S. Smith and Richard E. Long of bribery of a public
official, honest services wire fraud, and money laundering. On appeal, Long and
Smith assert that the district court erred in allowing a witness to assert her Fifth
Amendment privilege against self-incrimination to avoid testifying. Long also
argues that his conviction is supported by insufficient evidence and that his
sentence is procedurally and substantively unreasonable. No reversible error
exists; we affirm defendants’ convictions and sentences.
I. BACKGROUND
Defendant Richard Long is a former civilian employee of the Army; he
served as a Water and Petroleum Program Manager from1991 to 2004. During that
time, Long reviewed contract bids and supervised contractor performance for the
Army’s contracts for water purification equipment and services. Long also
compiled contract requests, which included a statement of the work the Army
needed and an estimate on how much the contract should cost.
Defendant Mack Smith owned WATEC, a civilian contractor that provided
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services, training, and maintenance for water-purification systems.
Long helped WATEC win contracts by providing WATEC employees with
confidential information about the contracts and the government’s pricing
specifications before WATEC submitted its bid. WATEC would tailor its bid
based on that information and set its price as close as possible to the price the
government was willing to pay. This access to confidential information gave
WATEC an advantage in the bidding process.
Long also frequently wrote “sole-source justifications” that allowed the
government to award contracts to WATEC without going through a competitive
bidding process. Instead, the government awarded the contract directly to WATEC
based on Long’s assertion that WATEC was the only contractor capable of
performing the work.
The government awarded over $66 million in contracts to WATEC during
Long’s employment. During this time, Smith or WATEC made 55 payments to
Long of between $1,000 and $75,000. The payments were routed to accounts held
by Long, his wife, or his wife’s sister. The payments to Long totaled $549,700.
Long testified that all of these payments were “loans.” But no loan
agreement existed, and Long never paid back any of the money. Smith also hired
Long’s son to work at WATEC.
3
A grand jury issued a 105-count indictment charging Smith, Long, and
Long’s wife, Debra Long, with conspiring to commit honest services mail fraud,
honest services wire fraud, and bribery of a public official; and also with actually
committing wire fraud, bribery of a public official, and money laundering.
At trial, the defense sought to proffer the testimony of Mary Anne Osborn, a
contracting officer who worked with Long. But the government told the district
court that Osborn was the target of a separate investigation and that it planned to
question Osborn at trial about her own conduct that was under investigation.1
Long moved to exclude any cross-examination about the investigation of the
pertinent witness; the district court denied the motion.
When the defense called Osborn to the stand, the district court spoke with
counsel for Osborn and for the parties about the proposed lines of questioning.
Following this discussion, Osborn’s counsel said that Osborn planned to invoke
her Fifth Amendment privilege for all testimony, including direct examination.
After the defense made a detailed proffer of Osborn’s testimony, the trial court
preliminarily concluded that Osborn could correctly invoke the Fifth Amendment
about some topics but not about others.2
1
The investigation related to Osborn’s husband’s receipt of payments from a company to
which Osborn awarded contracts. Osborn later settled with the government.
2
Osborn could not invoke the Fifth Amendment on her employment history; her history
of contact with Long; general facts about specific contracts; WATEC’s performance and
4
Two days later, after hearing Long’s testimony, the district court ruled that
the witness Osborn would be totally excused from testifying. The court concluded
that “once testimony that would be cumulative is excluded, she could legitimately
refuse to answer essentially all relevant questions.”
The jury convicted Long of the bribery and wire fraud counts that occurred
after July 2004 (the date when, Long stated, he had taken an ethics class and
realized he was doing wrong) and of money laundering. The jury convicted Smith
of bribery, wire fraud, and money laundering. The jury acquitted Debra Long of
all counts. At sentencing, the District Court determined that Long had held “a high
level decision-making or sensitive position” and applied a four-level sentencing
enhancement. Smith and Long now appeal.
competence; Long’s role in a certain contract; Osborn’s interactions with Smith; and facts about
a contracting officer that Smith hired.
The district court preliminarily concluded that Osborn would be allowed to invoke the
Fifth on the contract-award process; propriety of billing methods; the influence of the task
monitor on the process; corruption of the process; and the investigation into Osborn’s conduct.
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II. DISCUSSION
A.
Defendants assert that the district court violated constitutional rights by
allowing Osborn to invoke her Fifth Amendment privilege against compelled self-
incrimination to avoid testifying. Long specifically argues that Osborn’s testimony
would have presented critical exculpatory evidence and that excluding the evidence
violated his Fifth Amendment right to due process.3 Smith argues that excluding
the testimony violated his Sixth Amendment right to compulsory process for
obtaining witnesses in his favor.4
Trial courts have broad discretion to resolve self-incrimination claims. See
United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th Cir. 1976); Hoffman
v. United States,
71 S. Ct. 814, 818 (1951) (“It is for the court to say whether [a
witness’s] silence is justified . . . .”). “To sustain the privilege, it need only be
evident from the implications of the question, in the setting in which it is asked,
3
Long asserts that Osborn would have testified that Long could not have improperly
influenced the contract award process even if he had wanted to; that Long was competent but
difficult to get in touch with; and that Smith did not understand all the pertinent contracting
concepts.
4
Smith asserts that Osborn’s testimony would have supported his defense that Smith’s
“loans” to Long did not buy access to Army contracts.
6
that a responsive answer to the question . . . might be dangerous because injurious
disclosure could result.” Hoffman, 71 S. Ct. at 818. In deciding whether a witness
is entitled to claim the privilege, the trial court may rely on its “personal perception
of the peculiarities of the case” in addition to “the facts actually in evidence.”
Id.
(quoting Ex parte Irvine,
74 F. 954, 960 (S.D. Ohio 1896)).
When a witness asserts the privilege against self-incrimination, “[a] court
must make a particularized inquiry, deciding, in connection with each specific area
that the questioning party wishes to explore, whether or not the privilege is well-
founded.” Moreno, 536 F.2d at 1049.
The district court’s inquiry into the areas of testimony was sufficient to
protect Defendants’ constitutional rights in this case. The district court in this case
inquired into the proposed testimony and cross examination. It appointed counsel
for the witness and heard from counsel for all parties, several times. Defendants’
counsel offered a proffer of the testimony the witness likely would have given.
The government outlined the questions that it likely would have asked the witness.
The trial court first pointed out certain topics that could be the subject of
testimony, but later considered the issue for a second time and revised its ruling.
After inquiring into the proposed subjects of testimony, the district court
noted that, if Osborn testified about the non-collateral subjects, the government
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planned then to question the witness about: the ethical obligations applicable to
Long, whether she knew that Long’s son worked at WATEC, whether she knew of
the payments to Long, and whether she would have approved the contracts if she
had known this information. Answering these questions would have very likely
resulted in incriminating disclosures. The court did not err in concluding that the
witness was entitled to raise her Fifth Amendment privilege against self-
incrimination to be excused from testifying about these proposed areas of inquiry.
See Hoffman, 71 S. Ct. at 818.
In addition, the court did not err by excusing the witness from testifying
about the remaining proposed subjects of testimony. The court properly concluded
that any topics about which the witness could testify without fear of self-
incrimination would likely be cumulative, irrelevant, or not subject to cross-
examination by the government without raising Fifth Amendment issues. In these
circumstances, a witness may be excused entirely from testifying. See Moreno,
536 F.2d at 1049 (noting that a witness could be excused from testifying if the
court concluded “that [the witness] could legitimately refuse to answer essentially
all relevant questions”) (internal quotation marks and citation omitted).
The district court’s decision to excuse Osborn from testifying violated no
constitutional rights.
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B.
We next review Long’s claim that insufficient evidence existed to convict
him of the acts of bribery and wire fraud in violation of 18 U.S.C. §§ 2,
201(b)(2)(A), 1343 and 13465 that occurred after 31 December 2004. On appeal,
Long argues that “after he retired on December 31, 2004, Mr. Long had no ability
to help Watec in any way . . . There was simply no evidence from which the jury
could conclude that, after December 31, 2004, Mr. Long had the specific intent to
act corruptly or to defraud.”
Long, however, did not move for a judgment of acquittal in the district court
on the counts at issue on appeal. Thus, we review his claim about the sufficiency
of the evidence only for plain error. We must affirm the conviction unless a
“manifest miscarriage of justice” has been shown. United States v. Bichsel, 156
F.3d 1148, 1150 (11th Cir. 1998).
Sufficient evidence supports the jury’s verdict. Evidence at trial established
5
18 U.S.C. § 201(b)(2)(A) prohibits a public official from receiving “anything of value .
. . in return for . . . being influenced in the performance of any official act.” 18 U.S.C. § 1343
prohibits the use of wire communication to execute “any scheme or artifice to defraud.” 18
U.S.C. § 1346 states that a scheme “to deprive another of the intangible right of honest services”
falls within the scope of section 1343.
9
that Long received $549,700 in payments from Smith. In exchange, Long
consistently recommended that WATEC receive lucrative government contracts.
A jury could reasonably infer that Long had accepted something of value in return
for being influenced in the performance of an official act in violation of section
201(b)(2)(A) and that he used wire communication to carry out a scheme to
defraud in violation of section 1343.
In addition, a jury could reasonably infer that payments made and accepted
after Long’s retirement were deferred compensation for earlier wrongs and were
part of a scheme to conceal Long’s earlier acts of influencing the award of
government contracts.6 No miscarriage of justice has been shown in this case;
Long’s convictions are affirmed.
C.
Long also argues that his sentence is procedurally unreasonable because he
did not occupy a “high level decision-making or sensitive position” that would
6
That the jury acquitted Long of the conspiracy count does not preclude a conclusion that
sufficient evidence existed to support a conviction for bribery and wire fraud. See United States
v. Pruitt, 638 F.3d 763, 767 n.6 (11th Cir. 2011) (“Mere inconsistency of the jury verdicts cannot
bolster Defendant’s argument on appeal.”).
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justify a sentence enhancement.
The sentencing guidelines allow for a 4-level increase to a base offense level
if the bribe “involved . . . any public official in a high-level decision-making or
sensitive position.” U.S. Sentencing Guidelines Manual § 2C1.1(b)(3) (2010).
Long concedes that “[n]umerous prosecution witnesses testified that they relied on
Mr. Long and his recommendations, due to his personal knowledge, experience,
and expertise.” But Long argues that the sentence enhancement does not apply to
“the broad range of bribe recipients who exerted some special influence over a
decision-making process, but specifically and only to those occupying ‘a high-level
decision-making or sensitive position.’” Long contends that regardless of the actual
influence he commanded, he did not occupy an official position of authority.
This form over function argument is incorrect. The commentary to the
sentencing guidelines state that a “‘[h]igh-level decision-making or sensitive
position’ means a position characterized by a direct authority to make decisions
for, or on behalf of, a government department . . . or by a substantial influence over
the decision-making process.” U.S. Sentencing Guidelines Manual § 2C1.1 cmt.
n.4(A) (2010) (emphasis added). In other words, a defendant’s position may be
evaluated in terms of the influence that the defendant exercised.
As Long concedes, the evidence at trial established that Long wielded
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substantial influence over the decision-making process. The district court did not
err in enhancing his sentence based on his high-level decision-making position.
Long last argues that his sentence is substantively unreasonable. Long
asserts that his 210-month sentence is grossly disproportionate to the nature and
circumstances of the offense, Long’s criminal history and characteristics, and
sentences that other white-collar crime defendants have received.
The district court did not commit reversible error in sentencing Long.
“[T]here is a range of reasonable sentences from which the district court may
choose, and when the district court imposes a sentence within the advisory
Guidelines range, we ordinarily will expect that choice to be a reasonable one.”
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both that record and the factors in section 3553(a).”
Id.
The district court considered both the sentencing guidelines and the 18
U.S.C. § 3553 factors before imposing a sentence. The court adopted the parties’
joint recommendation that the loss amount be calculated based on the value of the
total payments that Long received instead of the much greater value of WATEC’s
profits on the contracts.7 The sentence that the district court ultimately imposed--a
7
This lowered the offense level from 45 (for which the guidelines recommend life
imprisonment) to 37 (for which the guidelines range is 210 to 262 months).
12
total of 210 months’ imprisonment--is at the low end of the sentencing range.
Long has not shown that the sentence that the district court imposed is
unreasonable, and the sentence is affirmed.
III. CONCLUSION
Defendants have shown no error in their trials or sentencing. Their
sentences and convictions are AFFIRMED.
AFFIRMED.
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