Case: 13-31044 Document: 00512883766 Page: 1 Date Filed: 12/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-31044 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, December 29, 2014
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
QUINCY RICHARD, SR.,
Defendant - Appellant
Appeals from the United States District Court
for the Western District of Louisiana
Before JOLLY and JONES, Circuit Judges, and AFRICK*, District Judge.
E. GRADY JOLLY, Circuit Judge:
This appeal presents questions arising from a Louisiana public-
corruption case. Quincy Richard, Sr., a former member of the St. Landry
Parish School Board, pledged his support to an applicant for the position of
School Board Superintendent in exchange for $5,000. Unknown to Richard,
the applicant was a government informant, and Richard was convicted by a
jury under the federal bribery statute, 18 U.S.C. § 666. On appeal, Richard
challenges the sufficiency of his indictment, the constitutionality of § 666, the
sufficiency of the evidence, one of the district court’s evidentiary rulings, and
* District Judge of the Eastern District of Louisiana, sitting by designation.
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his sentence. We find no reversible error, and so we AFFIRM his conviction
and sentence.
I.
Quincy Richard, Sr., was a member of the St. Landry Parish School
Board. Early in the summer of 2012, he arranged a meeting between himself;
John Miller, a fellow member of the School Board; and Joseph Cassimere, an
applicant for the position of School Board Superintendent. At the meeting,
Richard and Miller asked Cassimere to discuss his application for the
Superintendent position. When Cassimere began detailing his plans for
improving local schools, however, Richard informed him that it would “take a
little bit more than that” for Cassimere to be selected. Miller elaborated,
explaining that he and Richard vote as a team and like to “work” for the
Superintendent, but that, in order for them to work on Cassimere’s behalf, it
would take “some kind of finance.”
Cassimere assumed that they were joking. But when, weeks later,
Richard arranged another meeting at which Richard and Miller put a specific
dollar figure on their support, he concluded that the bribery scheme was
serious. He therefore contacted the FBI, who gave him recording equipment
and instructed him to record future conversations with Richard and Miller.
Several more meetings followed. At one, Richard reiterated that
Cassimere needed to “take care of Miller” while rubbing his fingers together in
a gesture that Cassimere understood to refer to money. At another, Cassimere
informed Richard and Miller that he could pay them $5,000 apiece, and the
group agreed to reconvene for payment.
Finally, on September 24, 2012, two days before the Board was scheduled
to select a Superintendent, Cassimere met Miller and Richard at the
restaurant of a local casino. Cassimere had come with $10,000 worth of FBI-
provided bribe money, and FBI agents were in place to covertly monitor the
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meeting. During the meeting, Cassimere gave Richard and Miller each an
envelope containing $5,000. Richard was confronted by an FBI agent as he left
the restaurant, and he surrendered the envelope.
Richard and Miller were charged with one count of conspiracy to commit
bribery in violation of 18 U.S.C. § 371 and two counts of bribery in violation of
18 U.S.C. § 666. Miller pled guilty and cooperated with the government, but
Richard decided to go to trial. Before Richard’s trial began, the Board held its
vote to select a Superintendent. Richard, who had remained on the Board
despite his indictment, cast the deciding vote against Cassimere and in favor
of one of his competitors. Later, a Louisiana state court held that Richard was
ineligible to serve on the School Board because of a prior, unrelated felony
conviction. The government moved to prevent this judgment, which was
pending appeal, from being presented at trial, and the district court agreed,
citing relevance.
At trial, Richard was convicted by a jury on all three counts. He was
then sentenced to thirty-three months of imprisonment per count, to be served
concurrently, followed by three years of concurrent supervised release per
count.
II.
In this appeal, Richard challenges the sufficiency of his indictment, the
constitutionality of § 666, the sufficiency of the evidence, one of the district
court’s evidentiary rulings, and his sentence. We consider each challenge in
turn.
A.
Richard’s first argument on appeal is that his indictment does not satisfy
the constitutional requirements of adequately providing him full notice of the
crime of which he has been charged. “We review the sufficiency of the
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indictment de novo.” United States v. Simpson, 741 F.3d 539, 547 (5th Cir.
2014).
Richard’s argument as to the sufficiency of the indictment focuses on the
counts charging him with violating the federal bribery statute. That statute
punishes “an agent of an organization, or of a State, local, or Indian tribal
government, or any agency thereof” who “corruptly solicits or demands for the
benefit of any person, or accepts or agrees to accept, anything of value from
any person, intending to be influenced or rewarded in connection with any
business, transaction, or series of transactions of such organization,
government, or agency involving any thing of value of $5,000 or more,” if “the
organization, government, or agency receives, in any one year period, benefits
in excess of $10,000 under a Federal program.” 18 U.S.C. § 666(a)(1)(B), (b).
The statute defines an “agent” as “a person authorized to act on behalf of
another person or a government and, in the case of an organization or
government, includes a servant or employee, and a partner, director, officer,
manager, and representative.” Id. § 666(d)(1).
The superseding indictment closely tracks the language of § 666. It
alleges that Richard was an “agent[] and board member[] of the St. Landry
Parish School Board, an organization receiving federal assistance in excess of
$10,000 within the one year period before September 24, 2012,” and that he
“corruptly agreed to accept and did in fact accept a thing of value from a
victim/candidate for the position of Superintendent of the St. Landry Parish
School Board intending to be influenced and rewarded in connection with a
transaction and series of transactions of [the Board] involving anything of
value of $5,000 or more.” The indictment also includes a conspiracy count,
which further alleges that the Superintendent’s salary was approximately
$120,000 per year.
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According to Richard, the indictment is insufficient because it fails to
include some particulars, such as which federal program the School Board
received money from, which transaction was the subject of the bribe, and the
name of the particular person from whom he allegedly accepted a bribe.
“Generally,” however, “an indictment that closely tracks the language under
which it is brought is sufficient to give a defendant notice of the crimes with
which he is charged.” United States v. Franco, 632 F.3d 880, 884 (5th Cir.
2011). An indictment need not list every particular of the offense. Instead, it
“simply needs to allege each element of the crime in a way that allows the
accused to prepare his defense and invoke the Double Jeopardy Clause in a
subsequent proceeding.” Id. at 885. The superseding indictment closely tracks
the language of § 666, alleging each essential element under that statute.
Moreover, Richard will have no trouble invoking the Double Jeopardy Clause
in any future proceeding, since all of the details he identifies as missing from
the indictment came to light during the course of his prosecution. See United
States v. Lavergne, 805 F.2d 517, 521 (5th Cir. 1986) (“By relying on the
evidence in the record detailing exactly which charges constituted
embezzlement, [the defendants] can avoid a subsequent prosecution for these
same offenses.”). We therefore reject Richard’s argument that the indictment
was constitutionally insufficient.
B.
Richard next challenges the constitutionality of § 666, under which he is
charged. We review the constitutionality of a federal statute de novo. United
States v. Lawrence, 727 F.3d 386, 396 (5th Cir. 2013).
Richard’s challenge to § 666’s constitutionality must first confront and
distinguish the Supreme Court’s decision in Sabri v. United States, 541 U.S.
600 (2004). There, the defendants argued that the statute was
unconstitutional because it does not require a nexus between the criminal
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activity and the federal funds. Id. at 604–05. The Supreme Court rejected that
argument, holding that the Necessary and Proper Clause authorized Congress
“to see to it that taxpayer dollars appropriated under [the Spending Clause]
are in fact spent for the general welfare, and not frittered away in graft.” Id.
at 605. Because money is fungible, the Court reasoned, a nexus between the
criminal activity and the federal funds is unnecessary. Id. at 606.
Richard emphasizes that his challenge to § 666 is an as-applied
challenge, not a facial challenge like that brought in Sabri. See id. at 604. His
argument that the statute is unconstitutional as applied, however, is
unpersuasive. According to Richard, § 666 cannot constitutionally be applied
to the area of education, where state interests are stronger than federal
interests. Post-Sabri, though, we have applied § 666 to a secretary working in
a school-district superintendent’s office who used the district’s credit card to
make unauthorized purchases. See United States v. Ollison, 555 F.3d 152,
160–61 (5th Cir. 2009). Thus, Richard’s invocation of the state’s interest in
education, standing alone, fails to demonstrate that § 666 is unconstitutional
as applied to him.
C.
We next consider Richard’s sufficiency-of-the-evidence challenges. To
establish federal criminal jurisdiction over this admitted bribe, the
government is required to establish that the School Board received more than
$10,000 of federal benefits in a one-year period. See § 666(b). Thus, Richard
first challenges the sufficiency of the evidence with respect to the amount of
funds received from a federal program. He also challenges the evidence said
to support the value of the transaction connected with the bribe. Finally, he
argues that the evidence does not support the existence of a conspiratorial
agreement. Review of the sufficiency of the evidence is “highly deferential to
the verdict.” United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (internal
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quotation marks omitted). We do not re-weigh the evidence, but rather ask
“whether the evidence, when reviewed in the light most favorable to the
government with all reasonable inferences and credibility choices made in
support of a conviction, allows a rational fact finder to find every element of
the offense beyond a reasonable doubt.” United States v. Harris, 293 F.3d 863,
869 (5th Cir. 2002) (internal quotation marks omitted).
1.
Richard’s first sufficiency-of-the-evidence challenge relates to § 666’s
jurisdictional element, which requires the government to show that the
defendant’s agency “receives, in any one year period, benefits in excess of
$10,000 under a Federal program.” § 666(b). To prove this element, the
government offered the testimony of Elizabeth Scioneaux, the Deputy
Superintendent for Finance for the Louisiana Department of Education.
Scioneaux explained how federal money is distributed to school districts in
Louisiana and stated that, in the one-year period preceding Richard’s
acceptance of the bribe, the St. Landry Parish School District received
$18,923,877 in federal funds.
Richard does not contest the factual accuracy of Scioneaux’s testimony.
Instead, he argues that the School Board is distinct from the School District,
and thus that the government has not proven that the Board received $10,000
in federal funds. Scioneaux, however, testified that, for the purposes of
distributing federal education grant money, school boards and school districts
are synonymous. The jury could reasonably have relied on this testimony in
determining that the jurisdictional element was met.
2.
Richard next challenges the sufficiency of the evidence as it relates to
§ 666’s “transactional element,” which requires the recipient of the bribe to
have taken the bribe “intending to be influenced . . . in connection with any
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business, transaction, or series of transactions . . . involving any thing of value
of $5,000 or more.” § 666(a)(1)(B). This challenge also fails. As the government
points out, in United States v. Marmolejo we held that the value of § 666’s
transactional element may be satisfied by looking to the amount of the bribe,
reasoning that we were so persuaded because that is how “an appraiser would
value an asset.” 89 F.3d 1185, 1194 (5th Cir. 1986). Thus, because the amount
of the bribe here was $5,000, the jury reasonably could have concluded that the
transactional element was satisfied. 1
3.
Finally, Richard argues that the evidence was insufficient for the jury to
convict him on the conspiracy count. In particular, he argues that the evidence
showed only that he and Miller had similar objectives, not a conspiratorial
agreement.
To prove a conspiracy under 18 U.S.C. § 371, the government must show
“(1) an agreement between two or more persons to pursue an unlawful
objective; (2) the defendant’s knowledge of the unlawful objective and
voluntary agreement to join the conspiracy; and (3) an overt act by one or more
of the members of the conspiracy in furtherance of the objective of the
conspiracy.” United States v. Coleman, 609 F.3d 699, 704 (5th Cir. 2010). A
conspiracy “conviction may be based even on uncorroborated testimony of an
1 At oral argument, Richard argued that, when a bribe is given by a government agent,
the amount of the bribe is not a reliable indication of the value of the bribe’s subject matter,
and thus Marmolejo should not apply. The argument is, Marmolejo was based on the notion
that the best evidence of an item’s value is “the price a willing buyer would pay a willing
seller,” 89 F.3d at 1194 (internal quotation marks omitted), and, in a sense, a government
agent who gives a suspect a bribe is a “willing buyer” only of a conviction, not of the purported
object of the bribe. Moreover, if a government-provided bribe of at least $5,000 renders § 666’s
transactional element satisfied, then the government might always be able to satisfy the
transactional element simply by giving a suspect at least $5,000, irrespective of the true value
of the bribe’s object. Nonetheless, Richard waived this argument by raising it for the first
time at oral argument. United States v. Solis, 299 F.3d 420, 454 n.119 (5th Cir. 2002). Thus,
addressing the merits of this argument must wait until another day.
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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. Shoemaker, 746 F.3d 614, 623 (5th Cir. 2014) (internal
quotation marks omitted).
At trial, Miller testified that Richard proposed that they make money on
the selection process even before the opening for Superintendent was
announced. The government also presented evidence that both Richard and
Miller met with Cassimere and that they told him that they voted as a team
and required payment to swing the vote for Cassimere. Richard and Miller
both had contact with Cassimere, and Richard once encouraged Cassimere to
“take care of Miller” while making a hand gesture understood to signify
“money.” Furthermore, both Miller and Richard attended the final meeting
with Cassimere when payment was made. Finally, the government presented
evidence that corroborated the testimony of both Miller and Cassimere,
including audio and video recordings, telephone records, and some of Richard’s
own statements.
This evidence was sufficient for the jury to have convicted Richard on the
conspiracy count. We therefore reject Richard’s final sufficiency-of-the-
evidence challenge.
D.
Richard next challenges an evidentiary ruling of the district court.
Before the trial in this case began, a Louisiana state court ruled that Richard
was ineligible under state law to serve on the School Board because of a prior
felony conviction. Though Richard was appealing this judgment at the time of
trial, the government anticipated that he might attempt to use the judgment
to prove that he was not an “agent” of the School Board for the purposes of §
666. It therefore moved to exclude the judgment, arguing that whether
Richard was eligible to be elected to the Board as a matter of state law was
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irrelevant to whether he was an “agent” of the Board under § 666 at the time
of his criminal conduct; and, in any event, that admission of the state-court
judgment might confuse the jury as to whether Richard’s status as an “agent”
was a question of federal or state law. 2 The district court agreed with these
arguments and excluded any reference to the judgment. Richard now contends
that the district court’s exclusion of the judgment deprived him of the
opportunity to present a defense—specifically, the defense that he was not an
“agent” of the School Board because he was ineligible to serve in such capacity.
Ordinarily, we review evidentiary rulings for abuse of discretion. United
States v. Brooks, 681 F.3d 678, 709 (5th Cir. 2012). If the defendant fails
contemporaneously to object to the ruling, however, our review is only for plain
error. United States v. Williams, 620 F.3d 483, 488–89 (5th Cir. 2010). Plain
error is the appropriate standard here. The district court decided to exclude
the state-court judgment during a discussion with counsel just before opening
statements at Richard’s trial. Richard did not object to the court’s ruling
during this discussion—though he was given an express opportunity to do
so 3—or at any other point in the district-court proceedings. Thus, we apply
plain-error review to Richard’s challenge to the district court’s evidentiary
ruling.
Given the heightened standard of review, we cannot say that the district
court’s evidentiary ruling merits reversal. Plain-error review requires the
defendant to show “(1) error, (2) that is clear or obvious, and (3) that affected
2 Section 666 defines an “agent” as “a person authorized to act on behalf of another
person or a government and, in the case of an organization or government, includes a servant
or employee, and a partner, director, officer, manager, and representative.” § 666(d)(1).
3 After the district court ruled the judgment excluded, he expressly gave Richard’s
counsel an opportunity to object, telling Richard’s counsel that he was persuaded by
government counsel’s argument “unless [Richard’s counsel had] something to show [that] he’s
wrong.” Richard’s counsel replied, “No, sir, Your Honor.”
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the defendant’s substantial rights.” United States v. Hinojosa, 749 F.3d 407,
411 (5th Cir. 2014). Then, “[i]f those requirements are met, the reviewing court
may in its discretion remedy the error only if it (4) seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
Even assuming that the first three prongs of the plain-error test are
satisfied, see, e.g., United States v. Blocker, 104 F.3d 720, 735 (5th Cir. 1997),
Richard’s argument fails on the fourth prong. Regardless of whether he was
eligible to serve on the Board at the time of his election, it is undisputed that
Richard did in fact serve on the Board at the time of his criminal conduct. He
held himself out as a Board member, drew a Board member’s salary, and cast
binding votes along with the other Board members. 4 Given these
circumstances, the district court’s error, if there was any, was not the sort of
“particularly egregious” error that we have discretion to correct under the
fourth prong of plain-error review. See United States v. Delgado, 672 F.3d 320,
328 (5th Cir. 2012). We therefore reject Richard’s challenge to the district
court’s evidentiary ruling.
E.
Finally, Richard objects to several of the Sentencing Guideline
determinations that determined his sentence. We review the district court’s
sentencing-related fact-findings for clear error and its application of the
Guidelines de novo. United States v. Montgomery, 747 F.3d 303, 311 (5th Cir.
2014).
1.
4Indeed, this last point is vividly illustrated by the record evidence indicating that
Richard ultimately cast the deciding vote in favor of one of Cassimere’s competitors for the
Superintendent position. At sentencing, the district court characterized this vote as
“vengeful,” and remarked on the incongruity of Richard’s casting it “at that meeting—the
meeting that [Richard] say[s] now [he wasn’t] even a board member for, but it sure counted.”
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Richard first argues that the district court erred in applying § 2C1.1 of
the Guidelines (titled “Offering, Giving, Soliciting, or Receiving a Bribe”)
instead of § 2C1.2 (which has the same title, except “Gratuity” substitutes for
“Bribe”). See U.S. Sentencing Guidelines Manual § 2C1.1–2 [hereinafter
U.S.S.G.]. The statutory index suggests both § 2C1.1 and § 2C1.2 for violations
of § 666. Id. app. A. When the statutory index specifies more than one offense
Guideline for a particular statute, the court is to “determine which of the
referenced guideline sections is most appropriate for the offense conduct
charged in the count of which the defendant was convicted.” Id. § 1B1.2 cmt.
n.1. We have previously stated that § 2C1.1 is the appropriate Guideline when
the offense conduct charged includes a “corrupt purpose.” See United States v.
Whitfield, 590 F.3d 325, 367 n.31 (5th Cir. 2009). Here, the indictment alleges
that Richard “corruptly agreed to accept and did in fact accept a thing of value”
(emphasis added). Thus, the district court did not err in applying § 2C1.1.
2.
The district court increased Richard’s offense level by two levels under
U.S.S.G. §§ 2C1.1(b)(2) and 2B1.1 because it found that the offense involved
bribes totaling $10,000. Richard objects to the district court’s application of
this enhancement on two grounds. First, he argues that he should, at most, be
responsible for $5,000, instead of $10,000, because he personally accepted only
$5,000 from Cassimere. Second, Richard argues that § 2C1.1(b)(2) does not
apply because the government ultimately recovered the bribe money it
provided to Cassimere and thus did not suffer a loss. Neither argument carries
the day.
Richard’s first argument fails because Richard was convicted of
participating in a conspiracy with Miller. As this court has previously held,
the “offense” referred to in § 2C1.1 includes “the offense of conviction and all
relevant conduct.” See United States v. Roussel, 705 F.3d 184, 198 (5th Cir.
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2013) (internal quotation marks omitted). Since the $5,000 received by Miller
forms part of the basis of the conspiracy conviction, the district court did not
err in including that $5,000 in its § 2C1.1(b)(2) calculation.
Richard’s second argument is equally unpersuasive. The government’s
ultimate recovery of the bribe money does not preclude the application of
§ 2C1.1(b)(2) because that Guideline instructs the court to determine the
extent of the offense-level increase based on the “greatest” of the amount of the
bribe, the amount of the benefit to be received by the bribe-giver, “or the loss
to the government.” U.S.S.G. § 2C1.1(b)(2) (emphasis added). The district
court was therefore not required to look to the loss to the government in
determining the applicability of § 2C1.1(b)(2).
3.
Next, Richard argues that the district court improperly increased his
offense level under U.S.S.G. § 2C1.1(b)(3), which applies when “the offense
involved an elected public official.” Id. § 2C1.1(b)(3). This argument revives
Richard’s earlier contention that he was ineligible to serve on the School Board
under Louisiana law because of his prior felony conviction. According to
Richard, his ineligibility means that he cannot have been an “elected public
official” as that term is used in § 2C1.1(b)(3).
This argument is spurious. The language of the Guideline does not
require that Richard be an eligible officeholder. Richard was, in fact, elected
and he did, in fact, serve on the School Board in an official capacity with the
full authority of the office, and he accepted the bribe while officially occupying
the office. Since he unquestionably was “an elected public official,” the district
court did not err in increasing Richard’s offense level under § 2C1.1(b)(3).
4.
Finally, Richard argues that the district court improperly rejected his
request for a reduction in the offense level for acceptance of responsibility
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under U.S.S.G. § 3E1.1. But that “adjustment is not intended to apply to a
defendant who puts the government to its burden of proof at trial by denying
the essential factual elements of guilt, is convicted, and only then admits guilt
and expresses remorse.” Id. § 3E1.1 cmt. n.2. Here, Richard put the
government to its burden of proof at trial, filed a post-verdict motion for
acquittal challenging the sufficiency of the evidence, and continued to assert
that he was innocent as late as his factual objections to the PSR. The district
court therefore did not err in declining Richard’s request for a § 3E1.1
reduction.
III.
Richard proposed and accepted a bribe in exchange for his support in
selecting a School Board Superintendent. All of the requirements for a valid
federal conviction under § 666 have been satisfied. The district court
committed no error in sentencing Richard. In sum, Richard’s contentions on
appeal are meritless. Accordingly, his conviction and sentence are
AFFIRMED.
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