EMILIO M. GARZA, Circuit Judge:
Earnest Levi Garner ("Garner") and Raymond Lamont Shoemaker ("Shoemaker") stood trial for various federal crimes arising from a bribe and kickback scheme involving a community hospital. The crimes included conspiracy, federal program bribery, paying and receiving healthcare kickbacks, embezzlement, and making false statements to federal agents. After the jury returned guilty verdicts on all counts, the district court entered judgments of acquittal and, in the alternative, granted new trials as to several of the counts. We resolve two appeals in this opinion: In No. 12-60754, the Government appeals the district court's judgments of acquittal and grants of new trials for Garner and Shoemaker, and in No. 12-60791, Shoemaker appeals the district court's denial of his motion for judgment of acquittal or new trial on the remaining counts, of which he alone was convicted. We vacate the district court's judgments of acquittal and grants of new trials, affirm Shoemaker's other convictions, and remand for reinstatement of the jury verdict and for sentencing.
This case concerns a bribe and kickback scheme involving Tri-Lakes Medical Center ("TLMC"), a community hospital in Panola County, Mississippi.
Garner owned and operated a nurse staffing business known as Guardian Angel Nursing and, later, as On-Call Staffing, which provided temporary nurses to area hospitals. In early 2005, TLMC entered into a contract with Guardian Angel Nursing after Chandler had arranged two meetings between company representatives and Shoemaker. Soon thereafter, Chandler requested that Garner pay him $5 for every nursing hour his company billed at TLMC. According to Chandler, the $5 per hour was in return for Chandler's ensuring that TLMC used Garner's company for contract nurses and paid Garner's bills in a timely manner. About once a month, Garner would push Chandler to increase hours for his nurse staffing business at TLMC, and Chandler would lobby Shoemaker accordingly. A few months after this arrangement commenced, Chandler signed a board authorization giving Shoemaker a $50,000 raise. Upon Garner's request, Chandler created invoices that did not directly correlate to billed hours but rather looked as if they were for consulting or tax services; the memo "Accounting Fees" or "Accounting Services" appeared on checks from Garner.
In total, Garner paid Chandler $268,000 as a result of the agreement, and TLMC paid Garner's company approximately $2.3 million for nursing services. Shoemaker's executive assistant testified that Chandler, on behalf of Garner's company, regularly delivered invoices to and picked up checks directly from Shoemaker's office, while other vendors had no such billing practices. Moreover, Garner's nursing company was typically the first vendor paid by TLMC. Over the course of one year, when TLMC engaged a total of seven nursing companies, Garner's company received 40% of the hospital's business.
Meanwhile, in mid-2005, Robert Corkern ("Corkern") contracted to purchase TLMC. However, in order to secure financing, he needed a nonprofit entity that would qualify for a loan backed by the United States Department of Agriculture ("USDA"). Shoemaker offered Corkern the use of a non-profit under his control called Kaizen, and Corkern transferred to Kaizen his right to purchase TLMC. Subsequently, Kaizen's name was changed to Physicians and Surgeons Hospital Group ("PSHG").
In the fall of 2005, Chandler signed on behalf of TLMC a contract providing PSHG with rights to purchase the hospital from Panola County and the City of Batesville. Thereafter, PSHG purchased TLMC for approximately $27 million. Once the sale was finalized, Chandler left the Board, and Shoemaker was promoted from COO to Chief Executive Officer ("CEO").
Soon thereafter, Shoemaker began claiming that Garner and Corkern owed him money. Just prior to the sale of the hospital, Chandler had arranged a meeting between Shoemaker and Garner at the Como Steakhouse. During the meeting, Garner excused Chandler from the table, whereupon Garner and Shoemaker conversed privately for approximately thirty minutes. After the sale of the hospital, Shoemaker demanded $25,000 from Chandler, claiming that Garner had "promised" that sum in return for Shoemaker's maintaining the flow of nursing hours and payments to Garner's business. Chandler recounted this conversation to Garner, who initially did not respond. Chandler then proposed that he would begin paying Shoemaker $2,000 per month, and Garner replied
Later, Shoemaker demanded that Corkern pay him $250,000 for providing use of the non-profit to acquire TLMC. Corkern refused, explaining that it was illegal to sell a non-profit entity. There was no mention in any sale or loan documents of any debt owed by Corkern to Shoemaker regarding the sale of the non-profit, and Corkern testified that Shoemaker had not demanded such payment initially.
Shoemaker ultimately secured $250,000, though not from Corkern. While the hospital was applying to GE Capital for a line of credit that had to be approved by the USDA, Shoemaker signed a letter to the USDA stating that the hospital desperately needed working capital for its day-to-day operations. The letter did not indicate that Shoemaker would also pay himself using the funds. That same month, Shoemaker signed a statement certifying that the loan would be used only for the hospital and would not be applied toward the obligations of any third parties or affiliates. On the day the line of credit was issued, Shoemaker went to TLMC's business office and had a check for $250,000 issued to Kaizen. No one in the business office knew that Shoemaker had previously owned Kaizen. When TLMC received its first draw under the GE line of credit, the $250,000 was replenished. Shoemaker later presented an invoice to the business office indicating that the payment to Kaizen was for "organizational costs." Shoemaker subsequently deposited the check into a bank account that he controlled.
In October 2009, Federal Bureau of Investigation ("FBI") Special Agent Shannon Wright interviewed Shoemaker. At first, Shoemaker denied receiving $10,000 in checks from Chandler. Then he said he was "99% sure" he had not received any checks but that if he had, he would like to see them. Afterward, Shoemaker and Chandler agreed that they would call the payments a loan. Accordingly, the next time Agent Wright interviewed Shoemaker, he explained that Chandler had loaned him $10,000.
Chandler later began cooperating with the government and recording his consensual conversations with Garner. In one such conversation, Garner wondered if Chandler's payments to Shoemaker were "gonna be called bribery." They agreed to characterize the $5-per-hour arrangement as payments for "accounting" and "professional" services, and Garner insisted that the bill not disclose the arrangement or otherwise correspond with nursing hours. Later in that conversation, Garner said, "You know I told you ... I ... I didn't need to know who you paid ... what you did." Although Chandler's testimony was inconsistent as to the meaning of Garner's statement, he ultimately explained that it referred to his payments to Shoemaker, and to Garner's earlier remark that he did not care what Chandler did with his $5-per-hour fee.
Shortly thereafter, Agent Wright and USDA Special Agent Keith Luke interviewed Garner. They asked Garner about the payments to Chandler, and Garner explained that certain larger payments constituted a "finder's fee" for securing business at TLMC. He also confirmed that he paid $5 for every hour that his company billed and collected at TLMC.
Garner and Shoemaker were subsequently charged in twelve counts of the Superseding Indictment. Both Garner and Shoemaker were charged with two counts of conspiracy in violation of 18 U.S.C. § 371: Count One charged conspiracy to violate 18 U.S.C. § 666 by bribing
After a nine-day trial, the jury found both Garner and Shoemaker guilty on all counts. Both defendants filed motions for judgment of acquittal on all counts or, in the alternative, a new trial. The district court then granted judgments of acquittal and, in the alternative, new trials to Garner as to Counts One, Two, Four, and Five, and to Shoemaker on Counts One and Four. As for Count Three, the district court denied Shoemaker's motion for judgment of acquittal but granted him a new trial. The district court denied Shoemaker's motions as to Counts Six through Twelve. Thus, no convictions stood against Garner. Shoemaker remained convicted of Counts Three and Six through Twelve.
The Government now appeals all judgments of acquittal and grants of new trials. Shoemaker appeals from his remaining convictions.
The Government contends that the district court erred in granting judgments of acquittal to Garner on Counts One, Two, Four, and Five, and to Shoemaker on Counts One and Four. The district court determined that insufficient evidence supported each conviction, and on appeal, the Government challenges these determinations.
We give no deference to a district court's post-verdict judgment of acquittal. United States v. Hanson, 161 F.3d 896, 900 (5th Cir.1998). Rather, we "decide de novo whether the relevant evidence, viewed in a light most favorable to the government, could be accepted by a jury as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt." Id. (internal quotation marks and citation omitted). In considering the sufficiency of the evidence, we must bear in mind that the "jury is free to choose among reasonable constructions of the evidence," even when certain evidence conflicts or suggests innocence. Id. Although a district court may re-weigh evidence and assess witness credibility in considering a motion for new trial, it has "[n]o such discretion" when deciding a motion for judgment of acquittal. United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir.1997).
Count One charged Garner and Shoemaker with conspiring to violate 18 U.S.C. § 666 by committing federal program bribery, in violation of 18 U.S.C. § 371. The district court read Count One to allege two distinct conspiracies — a conspiracy between Garner, Shoemaker, and Chandler to bribe Chandler in violation of 18 U.S.C. § 666, and a conspiracy between the same individuals to bribe Shoemaker, also in
As to the first conspiracy in Count One, the district court reasoned that in order for the convictions to stand, the Government had to present evidence establishing that Chandler was an "agent" under 18 U.S.C. § 666 whom the conspiracy aimed to bribe. According to the district court, the Government's evidence that Chandler was a TLMC board member and Panola County employee could not suffice. Rather, the evidence at a minimum had to establish that Chandler possessed "control over the legal transactions of [TLMC] in ordering nursing services."
Section 666 criminalizes offering, giving, or agreeing to give anything of value to any person with intent to influence or reward an "agent" of an organization in connection with a transaction exceeding $5,000 in value, where the organization receives over $10,000 in federal funds over any one-year period. 18 U.S.C. § 666(a)(2). The statute also prohibits an "agent" from soliciting, accepting, or agreeing to accept anything of value with the intent to be influenced or rewarded in connection with such transactions. Id. § 666(a)(1)(B).
In United States v. Phillips, 219 F.3d 404 (5th Cir.2000), we considered the scope of the term "agent" in 18 U.S.C. § 666. Phillips was a Louisiana parish tax assessor who allegedly hired his political ally and the ally's wife in order to provide them with health insurance benefits. In return, the couple paid their salaries to Phillips as a kickback. The jury was instructed that Phillips was an "agent" of the parish if he had authority to act on its behalf and that tax assessors are "parish officers" under Louisiana law. The jury then convicted Phillips and his ally for theft involving a federal program in violation of § 666. Id. at 407-10. On appeal, we considered whether the evidence sufficiently established that Phillips was an "agent" of the parish within the meaning of § 666.
We held that "`agent' ... should be construed ... to tie the agency relationship to the authority that a defendant has with respect to control and expenditure of the funds of an entity that receives federal monies." Id. at 415 (emphasis added). Put simply, an agent is someone authorized to act on behalf of the organization or government not only in a general manner, but "with respect to its funds" in particular.
Here, we conclude that Chandler is an "agent" within the meaning of § 666 as interpreted in Phillips.
The district court erred by pronouncing a new requirement that the "agent" have direct authority over the ultimate decision targeted by the bribe — here, the "authority to order temporary nurses from providers, such as Guardian Angel, on a day-to-day as-needed basis." This requirement is absent from both the statute and Phillips,
Alternatively, the district court's opinion might be read to mean that 18 U.S.C. § 666 prohibits successful bribes, regardless of the recipient's official authority.
Regarding the second conspiracy in Count One, in which Garner, Shoemaker, and Chandler allegedly conspired to bribe Shoemaker, the district court found that the Government failed to introduce any evidence of the underlying agreement.
To obtain convictions under 18 U.S.C. § 371, the Government must prove "an agreement between two or more persons to pursue an unlawful objective," among other elements. Coleman, 609 F.3d at 704. "To be a conspiracy, an express, explicit agreement is not required; a tacit agreement is enough." United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.1997). A conspiracy may be proven with only circumstantial evidence or "inferred from a concert of action." United States v. Virgen-Moreno, 265 F.3d 276, 284-85 (5th Cir.2001) (internal quotation marks and citation omitted). Furthermore, "a conviction may be based even on uncorroborated testimony of an accomplice or of someone making a plea bargain with the government, provided that the testimony is not incredible or otherwise insubstantial on its face." United States v. Osum, 943 F.2d 1394, 1405 (5th Cir.1991). Additionally, "the jury is the ultimate arbiter of the credibility of a witness," and "testimony generally should not be declared incredible as a matter of law" unless it pertains to matters "that the witness physically could not have observed or events that could not have occurred under the laws of nature." Id.
Viewing the evidence in the light most favorable to the jury's verdict, we conclude that evidence of the agreement between Garner, Shoemaker, and Chandler
Notwithstanding this evidence, the district court found that there was "no substantive testimony" bearing on the agreement between Garner and Shoemaker. The district court based this finding solely on the fact that at the Como Steakhouse, Chandler had been excused from the table and therefore could not testify about that specific conversation. The district court further observed that "[t]he only persons present at the time in question [at the Como Steakhouse] were Garner and Shoemaker, and no evidence was presented by them of any such agreement."
The district court's reasoning misunderstands its limited task in ruling on a motion for a judgment of acquittal. In effect, the district court concluded that the Government was required to prove the agreement between the three individuals with direct evidence of a specific exchange between Garner and Shoemaker. But there was ample circumstantial evidence — even a "concert of action" — in the form of Chandler's testimony about Shoemaker's demand for $25,000 and reference to Garner's promise,
Accordingly, because sufficient evidence supported all requisite elements of the conspiracies to bribe Chandler and Shoemaker, we hold that the district court erred in granting Garner's and Shoemaker's motions for judgment of acquittal on Count One.
Count Two charged Garner with federal program bribery in violation of 18 U.S.C. § 666. The facts alleged in Count Two were the substantive counterpart to the first conspiracy charged in Count One: That is, Garner allegedly carried out the conspiracy by actually bribing Chandler.
The district court granted Garner's motion for judgment of acquittal on Count Two on the grounds that no evidence demonstrated that Chandler was an "agent" under § 666. For the reasons discussed above, see supra Part II.A.1, the district court erred. Additionally, we reject Garner's contention that evidence of the requisite mens rea was insufficient. See 18 U.S.C. § 666(a)(2) (criminalizing bribes offered "corruptly"). The jury heard Chandler's testimony that Garner sought to
The district court thus erred in granting a judgment of acquittal to Garner on Count Two.
Premised on the same facts as Count One, Count Four charged Garner and Shoemaker with conspiracy to violate 42 U.S.C. § 1320a-7b by providing healthcare kickbacks, in violation of 18 U.S.C. § 371. The district court read Count Four, like Count One, as alleging two distinct conspiracies — a conspiracy between Garner, Shoemaker, and Chandler to pay kickbacks to Chandler in violation of 42 U.S.C. § 1320a-7b(b)(2)(B), and a conspiracy between the same individuals to pay kickbacks to Shoemaker also in violation of § 1320a-7b(b)(2)(B).
Regarding the first conspiracy in Count Four, the district court reasoned that in order for the convictions under 42 U.S.C. § 1320a-7b(b)(2) to stand, the Government had to present evidence establishing that Chandler was a "relevant decisionmaker." The district court concluded that because "[i]t is undisputed that Chandler had no decision-making authority in regard to the actual procurement of nursing staff," he could not be a "relevant decisionmaker."
Enacted as part of the Medicare-Medicaid Anti-Fraud and Abuse Amendments, 42 U.S.C. § 1320a-7b(b)(2) criminalizes the payment of remuneration under two related circumstances:
42 U.S.C. § 1320a-7b(b)(2)(A), (B). Thus, the statute prohibits payments to "any person," so long as the payment is made with the requisite intent: The payer must "knowingly and willfully" offer or make a payment to induce the recipient either "to refer an individual to a person" for the provision of a covered healthcare good or service under subsection (A), or "to purchase, lease, order, or arrange for or recommend" procuring a covered healthcare good or service under subsection (B).
Here, applying the statute and viewing the evidence in the light most favorable to the jury's verdict, we hold that sufficient evidence supported Garner's and Shoemaker's convictions for conspiring to pay Chandler with the intent "to induce [Chandler to] arrange for or recommend" procuring nursing services from Garner. 42 U.S.C. § 1320a-7b(b)(2)(B). The Government introduced evidence that Chandler requested that Garner pay him $5 per hour for every nursing hour billed and collected at TLMC — payments that, according to Chandler, were in return for his ensuring that TLMC used Garner's company for contract nurses. About once a month, Garner would push Chandler to increase his company's nursing hours at TLMC, and Chandler would lobby Shoemaker accordingly. Moreover, Chandler testified that he ultimately paid Shoemaker a total of $12,000 over six months in order to maintain influence over Shoemaker.
The district court, however, read United States v. Miles, 360 F.3d 472 (5th Cir. 2004), to limit drastically the meaning of "any person," such that liability cannot attach unless the "person" who receives remuneration is a "relevant decisionmaker" with formal authority to effect the desired referral or recommendation.
In Miles, we considered whether sufficient evidence supported convictions under § 1320a-7b(b)(2)(A) for alleged healthcare kickbacks paid in return for advertising services. Id. at 480. The Miles defendants were owners of APRO, a home healthcare company. Premier, a public relations firm, distributed promotional materials about APRO to local doctors' offices. After a physician decided to use APRO's services for a patient, the physician would
Thus, Miles drew a distinction not between types of payees — "relevant decisionmakers" and others — but between a payer's intent to induce "referrals," which is illegal, and the intent to compensate advertisers, which is permissible. Moreover, the factual and procedural context of that case constrained our holding. Miles accordingly stands for a narrow legal proposition: Where advertising facilitates an independent decision to purchase a healthcare good or service, and where there is no evidence that the advertiser "unduly influence[s]" or "act[s] on behalf of" the purchaser, the mere fact that the good or service provider compensates the advertiser following each purchase is insufficient to support the provider's conviction for making a payment "to refer an individual to a person" under 42 U.S.C. § 1320a-7b(b)(2)(A). Miles, 360 F.3d at 480.
Miles is inapplicable to the facts before us. Here, advertising services are not at
Contrary to the district court's opinion and the parties' submissions, we did not hold in Miles that a payee with "relevant decisionmaker" status is an independent, substantive requirement of the statute. Such a novel move would be tantamount to re-writing the statutory text, which, as noted above, criminalizes payments to "any person[s]," so long as they are made with the requisite intent. See United States v. Polin, 194 F.3d 863, 866 (7th Cir.1999) ("The different subsections [(A) and (B)] do not distinguish between physicians and lay-persons."). Rather, we merely used the term "relevant decisionmaker" as shorthand — to characterize remuneration recipients who were paid with the culpable intent to induce "referrals." Miles, 360 F.3d at 480. Premier, as a public relations firm that did not unduly influence doctors through its advertising services, could not have been paid with the requisite corrupt intent to induce such "referrals"; therefore, it was not a "relevant decisionmaker." Id. In short, this label merely represents the statute's requirement that remuneration must be paid with certain illegal ends in mind.
The consequences of the district court's reading of the statute and Miles would be untenable. By its logic, if a bribe-giver wanted to avoid liability, he could simply identify the individual with direct operational authority over the desired decision, and bribe a manager who is at least one level removed in the chain of command, since the manager would have no direct, formal, day-to-day authority over the targeted decision. Alternatively, he could also avoid liability by paying a third party external to the organization to, in turn, bribe the decisionmaker within the organization. Such a view of the law ignores the statutory text, which limits liability not by narrowing the field of "any person," but by defining culpable intent. Indeed, intent was the focus of our inquiry in Miles — specifically the question of whether the evidence could establish intent to induce "referrals." Id. at 480.
We need not dwell at length on the district court's grant of a judgment of acquittal as to the second conspiracy alleged in Count Four — the conspiracy to pay kickbacks to Shoemaker. The district court's reasoning hinged on the finding that the Government introduced no evidence of the content of the Como Steakhouse conversation. As discussed above with respect to the parallel conspiracy charge in Count One, evidence of the overall agreement was sufficient. See supra Part II.A.2.
Accordingly, because sufficient evidence supported all requisite elements of the conspiracies to provide kickbacks to Chandler
Count Five charged Garner with healthcare fraud in violation of 42 U.S.C. § 1320a-7b(b)(2)(B). Count Five is the substantive counterpart to the first conspiracy charged in Count Four: That is, Garner allegedly realized the conspiracy by actually paying a kickback to Chandler.
The district court granted Garner's motion for judgment of acquittal on Count Five on the grounds that no evidence demonstrated that Chandler was a "relevant decisionmaker" under Miles. Miles, 360 F.3d at 480. For the reasons already discussed, the district court misinterpreted Miles. See supra Part II.C.1. Here, sufficient evidence established that Garner made payments with culpable intent to induce a "recommend[ation]." 42 U.S.C. § 1320a-7b(b)(2)(B). For other reasons previously discussed, see supra Part II.B, the evidence of Garner's mens rea — that he acted "knowingly and willfully" — was sufficient to sustain his conviction. Id.
Thus, the district court erred in granting a judgment of acquittal to Garner on Count Five.
The Government further contends that the district court erred in granting a new trial to Garner on Counts One, Two, Four, and Five, and to Shoemaker on Counts One, Three, and Four. Except for Shoemaker's motion on Count Three,
We review a district court's grant of a new trial for abuse of discretion. Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir.1999). A district court may "vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R.Crim.P. 33(a). The "interest of justice" may take into account "the trial judge's evaluation of witnesses and weighing of the evidence." United States v. Wall, 389 F.3d 457, 465-66 (5th Cir.2004). However, the trial judge "may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable." United States v. Arnold, 416 F.3d 349, 360 (5th Cir.2005) (citation omitted). Rather, "[t]he evidence must preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand." Id. A district court is "powerless to order a new trial except on the motion of the defendant." United States v. Brown, 587 F.2d 187, 189 (5th Cir.1979). Moreover, "a district court does not have the authority to grant a motion for a new trial under Rule
The district court granted Garner's and Shoemaker's motions for new trial on Counts One, Two, and Three for the reason that the jury's lack of sufficient instruction on the meaning of "agent" under 18 U.S.C. § 666 and Phillips was prejudicial.
As for Counts Four and Five, the district court granted Garner's and Shoemaker's motions for new trial on the basis that Miles required a jury instruction that Chandler "had authority as a relevant decision maker" to give business to Garner's company. But as explained above, this proposed instruction derives from an incorrect understanding of Miles. See supra Part II.C.1. Because the jury instructions adequately explained all requisite elements for liability under 42 U.S.C. § 1320a-7b(b)(2)(B),
We therefore vacate all of the district court's grants of new trials to Garner and Shoemaker.
Shoemaker appeals his remaining convictions on various grounds.
As to his conviction on Count Twelve for embezzlement in violation of 18 U.S.C. § 666, Shoemaker contends that the supporting evidence is insufficient, that the admission of testimony about civil violations and jury instructions equating deliberate ignorance with knowledge warrant a new trial, that the same jury instructions impermissibly amended the indictment, and that cumulative error requires a new trial. He submits that his convictions on Counts Eight through Eleven for conspiring
We have considered the parties' submissions and reviewed the record. Because we conclude that sufficient evidence supported Shoemaker's remaining convictions, and otherwise find no errors warranting reversal or a new trial, we affirm Shoemaker's convictions on Counts Three and Counts Six through Twelve.
For the foregoing reasons, we VACATE the district court's grants of Garner's and Shoemaker's motions for judgment of acquittal and new trial, AFFIRM Shoemaker's other convictions, and REMAND for reinstatement of the jury verdict and for sentencing.
Moreover, the Phillips majority's concern about avoiding constitutional doubts now itself rests on doubtful foundations. See Phillips, 219 F.3d at 414-15 (discussing limits of Spending Clause powers). In Sabri v. United States, 541 U.S. 600, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004), the Supreme Court held that § 666 is not facially unconstitutional for failing to require "any connection" between the bribe and federal funds. Id. at 604, 124 S.Ct. 1941. The Court reasoned that the Spending Clause gives Congress authority to appropriate federal funds for the general welfare, and that the Necessary and Proper Clause embraces power to protect the integrity of those funds using § 666, even when the bribe does not result in a direct misuse of federal resources. Id. at 605-606, 124 S.Ct. 1941.
Nonetheless, Phillips's narrower approach remains good law, see Brown, 727 F.3d at 338, and it does not require federal funds to be directly linked either to the bribe or to the agent. See Phillips, 219 F.3d at 411 ("[T]he funds in question need not be purely federal, nor must the conduct in question have a direct effect on federal funds."). Neither, under Phillips, must the agent have direct authority over the outcome that is the object of the bribe, contrary to the district court's interpretation. We are thus satisfied that under Phillips, and on the evidence in the record, Chandler was an "agent" under § 666.
First, we note that neither Garner nor Shoemaker objected to the testimony at trial, and their motions for judgment of acquittal or new trial did not mention any hearsay problem, let alone Bourjaily. While the district court "may on its own consider whether the evidence is insufficient to sustain a conviction," Fed.R.Crim.P. 29(a), we know of no authority establishing a district court's power to base a judgment of acquittal on its sua sponte exclusion of evidence admitted at trial without objection. But cf. Webster v. Duckworth, 767 F.2d 1206, 1215 (7th Cir.1985) (discussing Ninth Circuit cases that permit district court to grant new trial if some admitted evidence should have been excluded, and remaining evidence would have been insufficient).
Second, even if Shoemaker's statement about Garner's promise would have been barred following a Bourjaily hearing, there was no plain error because Garner and Shoemaker's "substantial rights" were not affected, United States v. Montes-Salas, 669 F.3d 240, 247 (5th Cir.2012), since other admissible testimony would have been sufficient to support the conspiracy convictions. First, Chandler stated that Shoemaker said, "I don't know what's going on, but I've held up the end of my deal, but I am not getting — that Lee hadn't held up the end of his deal." This statement is a party-opponent admission, admissible against Shoemaker, and supports his conspiracy conviction on Count One because it establishes his agreement with the other individuals that he should be receiving bribes. Fed.R.Evid. 801(d)(2)(A). Later, when Chandler offered to pay Shoemaker $2,000 a month, Garner said that "he didn't care who or what [Chandler] paid as long as it came out of [Chandler's] $5 an hour." Garner's response is a party-opponent admission as well and supports Garner's conspiracy conviction on Count One because it establishes his agreement with the others to provide Shoemaker with bribes (via Chandler). Thus, even without Shoemaker's reference to Garner's promise, a rational jury could have found beyond a reasonable doubt that Garner, Shoemaker, and Chandler conspired to violate 18 U.S.C. § 666.
On this issue, the Government is doubly mistaken. First, the district court opinion is not internally inconsistent. Count Four alleges a conspiracy, which requires agreement, while Count Six charges Shoemaker only for the solicitation or receipt of a bribe. Thus, the district court could logically determine that sufficient evidence supported Shoemaker's conviction on Count Six, while also determining that evidence of his agreement with others was not sufficient under Count Four.
Second, for purposes of Count Six, the district court never held that Shoemaker was a "relevant decisionmaker" under Section (b)(1) — and rightly so. As discussed above, because this case does not implicate advertising services, and given the ample evidence in this case that Shoemaker received the kickbacks with the requisite criminal intent, Miles is inapplicable to the analysis of Shoemaker's criminal liability under either Count Four or Six. See supra Part II.C.1.
