FILED
United States Court of Appeals
Tenth Circuit
May 27, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-1321
CHRYSANTH G. GRUENANGERL, (D.C. No. 1:06-CR-00002-WDM)
a/k/a Chris McCleod, (D. Colorado)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.
Defendant Crysanth Gruenangerl (Defendant) appeals his conviction on one
count of bribery of a public official in violation of 18 U.S.C. § 201(b)(1)(A),
arguing that the evidence was insufficient to prove his guilt beyond a reasonable
doubt. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
I.
The evidence presented at trial established the following. The Ski Apache
ski area is located in the Lincoln National Forest near Ruidoso, New Mexico. In
2004, at the time of all relevant events, the area was owned and operated by the
Mescalero Apache Tribe of native Americans. The Lincoln National Forest was
managed by the Smokey Bear Ranger District of the National Forest Service, a
division of the United States Department of Agriculture. Among other things, the
Forest Service issued special use permits that allowed private parties such as the
Mescalero Apache Tribe to conduct commercial enterprises, including the
operation of ski areas, within national forests.
The base facilities at Ski Apache and the ski lifts and mountain trails of the
area were operated pursuant to special use permits from the Forest Service. One
of the conditions to the special use permits issued for Ski Apache was an annual
safety inspection of the lifts at the ski area. Special safety inspections were also
conducted if specific safety concerns were raised about any of the equipment. If
a safety inspection found the lift equipment to be unsafe, the lifts would be shut
down until necessary repairs or improvements were completed.
While hiking in the Ski Apache area in 2004, Defendant noticed that the
concrete support pads for the Ski Apache gondola, which was forty-one years old
at the time, appeared to be unsafe. He took pictures of several support pads
documenting this problem. Shortly thereafter, Defendant approached Randy
2
Woolwine, the Vice President in charge of sales for Doppelmayr CTEC in
Golden, Colorado. Doppelmayr is an American subsidiary of an Austrian
company that builds aerial tramways, gondolas, and other ski lifts. Defendant
told Woolwine that, based on his personal observations and the photographs of
the gondola support pads, he believed that the gondola was unsafe and needed to
be replaced. Defendant asked Woolwine to inspect the gondola and tell the
owners that the gondola was unsafe. Woolwine advised Defendant that the Forest
Service, not Doppelmayr, was responsible for safety inspections and suggested
that Defendant contact Michael Lane, a regional tramway engineer employed by
the Forest Service, about conducting such an inspection.
Defendant asked Woolwine about the possibility of earning a commission
or finder’s fee if he was able to convince Ski Apache to purchase a new
Doppelmayr gondola to replace the old gondola. Woolwine told Defendant that if
Defendant was instrumental in the sale of a Doppelmayr gondola, Doppelmayr
would pay him a finder’s fee of one to two percent of the purchase price. When
asked at trial about this offer, Woolwine admitted that he personally believed the
chances were slim that Defendant would be successful in selling Ski Apache a
new lift, but also stated that he considered this to be a firm offer that Doppelmayr
would honor in the event that Defendant actually was successful. Before parting
ways with Defendant, Woolwine provided him with Doppelmayr promotional
materials describing ski lift products costing as much as $20 million.
3
After his conversation with Woolwine, Defendant contacted the Smokey
Bear District Ranger Office, told them of his concerns that the Ski Apache
gondola was unsafe, and showed them his photographs. Based on Defendant’s
report, a meeting was held at the Forest Service office in Ruidoso in early
November of 2004. In attendance were Richard Carlson and Michael Lane of the
Forest Service, Ski Apache Manager Dan Conners, and Joe Gmuender, an
independent engineer hired by the ski area. Defendant’s ex-wife Esther McLeod
also attended the meeting on his behalf. After discussing Defendant’s
photographs and assertions about the gondola’s safety, Lane and Gmuender
conducted an inspection of the gondola and concluded that it was safe. Lane then
wrote a field report detailing the inspection and its findings. A copy of the report
was provided to Defendant as an interested party.
Late in the day on November 23, 2004, Lane received a call on his cellular
phone from Defendant. Defendant was “irate, irritated, [and] very excited” and
questioned how the inspectors could have found the gondola to be safe. Vol. VII
at 183:24. Lane became suspicious that he was somehow being “set up” after
Defendant told him that he had taped a conversation with Conners. Explaining to
Defendant that he was driving his truck at the time, Lane asked Defendant to call
him back at his home.
A short time later, Defendant called Lane at Lane’s home and again
questioned how the old gondola could have been found safe. According to Lane,
4
Defendant advised him that he wanted to sell the ski area a new Doppelmayr
gondola and insisted that Lane was the person responsible for making that kind of
decision. Defendant purportedly told Lane that he would split with him a finder’s
fee of two percent of the purchase price of a new Doppelmayr gondola if Lane
would tell the owners of Ski Apache that the existing gondola was unsafe. Lane
indicated that he could not do as Defendant wished and asked if he could contact
Defendant the next day to address Defendant’s safety concerns.
The next day, November 24, 2004, Lane informed his supervisors at the
Forest Service of Defendant’s telephone calls. They put him in touch with Mark
Hopko, a special agent with the Office of the Inspector General of the Department
of Agriculture. Hopko arranged to record further telephone conversations that
day between Lane and Defendant. During the recorded conversations on
November 24, 2004, Defendant again expressed his dissatisfaction with Lane’s
conclusion that the Ski Apache gondola was safe. When asked by Lane what
Defendant wanted him to do, Defendant repeated his offer to split a two percent
commission from Doppelmayr with Lane if Lane would say that the existing
gondola was unsafe and tell the Mescalero Apache Tribe and Richard Carlson of
the Forest Service that the old gondola would have to be replaced with a new one.
On January 9, 2006, a federal grand jury indicted Defendant on two counts
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of offering a bribe to a public official, in violation of 18 U.S.C. § 201(b)(1)(A). 1
Count One charged an act of bribery of a public official occurring on November
23, 2004 (the date of the first conversations with Lane), while Count Two charged
an act of bribery of a public official occurring on November 24, 2004 (the date of
the later conversations with Lane). Each count charged that Defendant offered to
bribe Lane if Lane “would tell the Ski Apache ski area that it needed to replace
the gondola that was the subject of [his] field report.” Vol. I, doc. 1.
The case was tried before a jury. Following the close of the government’s
case in chief, Defendant moved for a judgment of acquittal on both counts,
arguing that the evidence was insufficient to prove he intended to influence any
official act. The district court declined to rule on the motion, reserving the right
to do so until the trial was concluded. Following the close of Defendant’s case,
the court informed him that the motion remained pending, but that the case would
be submitted to the jury.
On September 5, 2006, the jury acquitted Defendant on Count One of the
indictment, but convicted him on Count Two. The district court, implicitly
1
18 U.S.C. § 201(b)(1)(A) provides in pertinent part that:
Whoever . . . directly or indirectly, corruptly gives, offers or
promises anything of value to any public official or person who has
been selected to be a public official . . . with intent . . . to influence
any official act . . . shall be fined under this title or not more than
three times the monetary equivalent of the thing of value, whichever
is greater, or imprisoned for not more than fifteen years, or both, and
may be disqualified from holding any office of honor, trust, or profit
under the United States.
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denying Defendant’s motion for judgment of acquittal, sentenced him to thirty-six
months’ imprisonment. Defendant now appeals, renewing his argument that the
evidence was insufficient to convict him. 2
II.
We review the district court’s denial of a motion for judgment of acquittal
due to insufficiency of the evidence de novo, “viewing the evidence in the light
most favorable to the government.” United States v. Bailey, 327 F.3d 1131, 1140
(10th Cir. 2003) (quoting United States v. Austin, 231 F.3d 1278, 1283 (10th Cir.
2000)).
We must determine whether there is evidence from which a jury
could find the defendant guilty beyond a reasonable doubt. In
reviewing the evidence, however, we do not weigh the evidence or
consider the credibility of the witnesses in making our determination.
We may reverse the jury’s verdict only if no rational trier of fact
could have found the essential elements of the crime beyond a
2
Defendant also argued in his briefs to this court that the district court
erred by failing to dismiss Count Two because the counts in the indictment were
multiplicitous. (We note that at trial, Defendant was less specific in that he
moved to dismiss either one of the two counts at the close of the government’s
case.) At oral argument, however, counsel for Defendant abandoned this asserted
error. Were we to nonetheless consider the issue, we would conclude that any
error was harmless. Defendant was convicted and sentenced on only one of the
two allegedly multiplicitous counts, thus eliminating the principal harm posed by
multiplicitous counts. See United States v. Barrett, 496 F.3d 1079, 1095 (10th
Cir. 2007); United States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001). Any
additional harm to Defendant such as possible prejudice in the eyes of the jury
was the result of Defendant’s failure to object to the indictment prior to trial and
cannot serve as grounds for reversal. See United States v. Morehead, 959 F.2d
1489, 1506 n.11 (10th Cir. 1992). Further, even if one of the two counts were
dismissed, the testimony concerning the dismissed count would still have been
relevant and admissible at trial on the remaining count.
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reasonable doubt.
Id. (quotation marks and citation omitted). Applying this standard, the evidence
was sufficient for a reasonable jury to conclude that the government had proved
each of the elements of the crime beyond a reasonable doubt.
“A conviction under 18 U.S.C. § 201(b)(1)(A) requires: (1) that [the
defendant] directly, or indirectly, corruptly gave, offered or promised anything of
value; (2) to any public official; (3) with intent to influence any official act.”
United States v. Pankhurst, 118 F.3d 345, 352 (5th Cir. 1997) (citation omitted).
Defendant does not dispute that Lane is a public official. He argues, however,
that his statements during the November 24th conversations are too vague to be
construed as an offer or promise of anything of value to Lane. He also argues
that the government had to prove that the “official act” in question was the
revision of Lane’s field report, and that the government’s evidence did not show
that Defendant intended that Lane change the field report. Neither argument is
persuasive.
Defendant’s argument that the November 24th conversations are too vague
to be construed as a bribe is belied by the transcript of those conversations. 3
While the conversations were at times odd and Defendant’s half of the discussion
3
Though both the recording of the November 24th conversations and the
transcript were presented to the jury at trial, neither was included in the record.
Both Defendant and the government have appended identical copies of the
transcript to their briefs, which we assume accurately relate the content of those
conversations.
8
is susceptible to multiple interpretations, Defendant made several statements
during the conversations that a reasonable jury could construe as offers to pay
Lane in exchange for rendering an official opinion that the Ski Apache gondola
was unsafe:
[Lane:] So what do you want me to do? How can I help you?
[Defendant:] Mike, tell them they have to replace the old gondola for
a new one, period. I split with you. . . . I split with you two percent.
And I put it into writing. You get two percent. I get two percent
from a twenty million dollar contract. You get your money.
Aplt. Br., App’x 3, at 5.
[Defendant:] I would like to have a gondola, a new gondola up here .
. . You and me, we do that. We get two percent from Doppelmayr.
You and me. Twenty million (unintelligible) two hundred thousand
(unintelligible). I do not believe when you say, Hey, this is all great,
that they can ride the gondola for another 20, 21 years. I do not
believe so.
Id. at 9-10.
[Defendant:] . . . [W]e have to sell them a gondola. I split with you
two percent that Doppelmayr promising me. I don’t know what to
do. You just tell me. Forty-one years old doesn’t work for
(unintelligible) period. I don’t know what you tell Mr. Carlson. . . .
Id. at 10-11.
[Defendant:] . . . The Indians when they want to spend five hundred
million dollars, that they do (unintelligible) they can spend twenty
million dollars on a new gondola, period. You help me and you get
all the money you need. OK? Period. Between you and me.
Id. at 11-12.
[Defendant:] OK, and I tell you one thing, OK? When you, when
9
you need something, we’ve got this million dollar house up here. I
got everything in my life. I got the Hummer. I got the new Cadillac.
I got, I got the ex Eddie (unintelligible). I have everything in my
life. When you need something, contact me and you be up here right
away. I give you a safe life.
[Lane:] I appreciate that, sir.
[Defendant:] Mike, you need something just call me. OK?
[Lane:] All right. It makes me nervous.
[Defendant:] Money-wise, we are millionaires. We just, we just want
to have peace with the gondola up here, and you can help me with
that by saying this is not right. Forty-one-year-old car doesn’t drive
like a 2005.
Id. at 14.
Defendant cannot seriously contend that his statements during these
conversations were too vague to be construed as bribes. The jury knew that at the
time of the conversations, Defendant had already learned from Randall Woolwine
at Doppelmayr that Lane was employed by the Forest Service and was responsible
for conducting safety inspections of gondolas and other ski lifts. It knew that
Defendant had received a copy of Lane’s report finding that the gondola was safe
to operate. The jury knew that if the gondola was found to be unsafe, Defendant
could have earned a finder’s fee of one to two percent of the sale price of a new
gondola. With this background, Defendant’s end of the discussion is far from
vague: if you “help me . . . by saying this is not right,” id. at 14, that is, by
“tell[ing] them they have to replace the old gondola for a new one,” id. at 5, “I
10
split with you two percent that Doppelmayr promising me . . . and you get all the
money you need,” id. at 10-11. While this speaks for itself, the jury also heard
testimony from Agent Mark Hopko of the United States Department of
Agriculture that during an October 2005 interview, Defendant admitted to telling
Lane that he wanted him to say that the gondola was unsafe and that he offered
Lane a share of his commission if Lane would do so. Vol. VII at 94:1-6; see also
id. at 123:13-17, 128:1-7. This testimony was corroborated by Esther McLeod,
Defendant’s ex-wife, who was present at the interview. Vol. VIII at 84:12-15.
Defendant’s argument that the government was required to prove that the
official act he sought to influence was Lane changing his field report, rather than
saying that the gondola was unsafe, has no merit. “[T]he term ‘official act’
means any decision or action on any question, matter, cause, suit, proceeding or
controversy, which may at any time be pending, or which may by law be brought
before any public official, in such official’s official capacity, or in such official’s
place of trust or profit.” 18 U.S.C. § 201(a)(3). As charged by the indictment,
Defendant sought to have Lane “tell the Ski Apache ski area that it needed to
replace the gondola that was the subject of the field report.” Vol. I, Doc. 1. The
government presented evidence that among Lane’s official duties was conducting
inspections of ski lifts and lift equipment and rendering professional opinions
regarding their safety. Vol. V at 139:2-9; Vol. VII at 155:6-7; id. at 159:23-
160:5. The government also presented evidence that in his official capacity, Lane
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was called in to participate in a safety inspection of the Ski Apache Gondola. Id.
at 161:22-162:10. Based on this evidence, the jury could conclude that “tell[ing]
the Ski Apache ski area that it needed to replace the gondola” was an official act
within the meaning of 18 U.S.C. § 201(a)(3). 4
III.
The district court’s denial of Defendant’s motion for judgment of acquittal
is AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
4
Even assuming that the government could somehow bind itself to prove
the theory set forth in its opening statement, rather than the indictment—as
Defendant contends—the government did not present a materially different theory
in its opening. It simply stated that Defendant “told Mike Lane he would split
that finder’s fee, that commission Doppelmayr had promised him, if Lane would
do something, if Lane would change his report, if Lane would go back to the ski
area and say it isn’t safe.” Vol. V. At 112:4-7 (emphasis added).
12