United States v. Whiteford

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

Nos. 10-1023 & 10-1373
___________

UNITED STATES OF AMERICA

v.

CURTIS G. WHITEFORD,
Appellant at No. 10-1023

MICHAEL B. WHEELER,
Appellant at No. 10-1373
_______________________

On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal Nos. 07-cr-00076-001 & 07-cr-00076-003
(Honorable Mary L. Cooper)
______________

Argued January 10, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges.
 (Filed: April 13, 2012)

DAVID P. SCHROTH I, ESQUIRE (ARGUED)
795 Parkway Avenue, Suite A-3
Trenton, New Jersey 08618
Attorney for Appellant, Curtis G. Whiteford

ANNMARIE HARRISON, ESQUIRE (ARGUED)
Henry E. Klingeman, Esquire
Krovatin Klingeman
60 Park Place, Suite 1100
Newark, New Jersey 07102
Attorneys for Appellant, Michael B. Wheeler

VIJAY SHANKER, ESQUIRE (ARGUED)
United States Department of Justice
Appellate Section
950 Pennsylvania Avenue, N.W., Room 1264
Washington, D.C. 20530

John P. Pearson, Esquire
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W., 12th Floor
Washington, D.C. 20530
Attorneys for Appellee

_________________

OPINION OF THE COURT
_________________

2
SCIRICA, Circuit Judge.

Curtis Whiteford and Michael Wheeler were officers
in the United States Army Reserve who were deployed to Iraq
in 2003 to work for the Coalition Provisional Authority. Both
defendants were convicted of conspiracy under 18 U.S.C. §
371, for participating in a bid-rigging scheme that involved
directing millions of dollars in contracts to companies owned
by Philip Bloom, an American businessman. Whiteford and
Wheeler raise the following claims on appeal: (1)
insufficiency of the evidence to establish each defendant‟s
participation in the conspiracy; (2) failure to grant a new trial
in the interests of justice; and (3) erroneous refusal to grant
“use immunity” to a co-conspirator. Wheeler also argues his
motion to suppress was erroneously denied. In addition, both
defendants challenge their sentences. We will affirm.1

I.

The Coalition Provisional Authority

The Coalition Provisional Authority (“CPA”) was
created in May 2003 by the United States, the United
Kingdom, and other members of the Coalition Forces to
function as a temporary governing body in Iraq. U.S.
Secretary of Defense Donald Rumsfeld appointed
Ambassador Paul Bremer to serve as Administrator of the

1
We have jurisdiction over this appeal pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742. The District Court had
jurisdiction pursuant to 18 U.S.C. § 3231.

3
CPA, and shortly after it was established, the U.N. Security
Council passed a resolution recognizing the CPA‟s
legitimacy. The U.N.‟s resolution called upon the CPA to
“promote the welfare of the Iraqi people through the effective
administration of the territory . . . .” See S.C. Res. 1483, ¶ 4,
U.N. Doc. S/RES/1483 (May 22, 2003). For the next fourteen
months, the CPA carried out this mandate by administering
humanitarian programs and reconstruction projects. To
finance its operations, it drew on two sources of funding: U.S.
congressional appropriations,2 and the Development Fund for
Iraq (“DFI”).3 On June 28, 2004, the CPA was replaced by
the Interim Government of Iraq, a sovereign Iraqi entity.

The CPA‟s staff, about 3,000 persons, consisted of
employees sent by the Governments of Australia, Denmark,
Italy, Japan, the United States, the United Kingdom, and other
members of the Coalition Forces. For its part, the United
2
In 2003, Congress appropriated $698 million to the CPA.
Over the remainder of 2003 and 2004, Congress dedicated
another $24.1 billion. Pre-Sentencing Report (“PSR”) ¶ 35.
3
The DFI included $2 billion in Iraqi assets seized by the
United States during the first Gulf War, $1 billion from the
Oil for Food Program, funding from the World Bank, and
contributions from Coalition Forces countries. PSR ¶ 35; see
also United States ex. rel. DRC, Inc. v. Custer Battles, LLC,
562 F.3d 295, 298-299 (4th Cir. 2009). The CPA was given
discretion in spending money from the DFI. See S.C. Res.
1483 at ¶13 (noting “that the funds in the Development Fund
for Iraq shall be disbursed at the discretion of the [Coalition
Provisional] Authority”).

4
States contributed both active-duty service members,
including reserves, as well as civilian employees. While
assigned to the CPA, members of the U.S. armed forces
continued to be bound by the Uniform Code of Military
Justice, see 10 U.S.C. § 802(a)(1), whose provisions apply “in
all places,” id. § 805. Military officers also continued to be
bound by Part 2635 of Title 5 of the Federal Code of
Regulations, which sets forth “standards for ethical conduct”
for employees of the Executive Branch. 5 C.F.R. §
2635.101(c). Part 2635 extends to persons “on detail” to an
international organization, unless they are specifically
exempted. Id. § 2635.104(c). Given that officers are
considered “employees” of the Department of Defense
(“DoD”), id. § 2635.102(h) (“Employee . . . includes officers
but not enlisted members of the uniformed services.”), they
are bound by Part 2635, and face potential penalties if they
deviate from its instructions, id. §§ 2635.106(a), 3601.101.
As Colonel and Lieutenant Colonel in the U.S. Army
Reserve, Whiteford and Wheeler, respectively, were
“officers.”

The CPA promulgated rules, memoranda, and orders
which carried the force of law in Iraq. See CPA Official
Documents, The Coalition Provisional Authority,
http://www.iraqcoalition.org/regulations/ (last visited Feb. 12,
2012). Memorandum Number 4, issued on August 19, 2003,
governed contracting procedures. It provided that:
“competition is mandatory for all Contracts”; “[r]easonable
efforts will be made to obtain competitive offers by
publicizing a solicitation”; “[g]rants administered under this
Memorandum will not directly or indirectly benefit any

5
Ministry, CPA or Coalition Forces official or employee
involved in the contracting or grant-making process”;
“[p]ersons involved in the contracting process . . . shall not . .
. [u]se public office for private gain”; requirements on a
project “may not be split to avoid the application of these
rules”; and contracts in excess of $500,000 shall be approved
by a special “Award Committee.” See CPA, Coalition
Provisional Authority Memorandum Number 4: Contract and
Grant Procedures Applicable to Vesterd [sic] and Seized
Iraqi Property and the Development Fund for Iraq, §§ 6(2),
6(5), 6(6), & 7 (Aug. 19, 2003), available at
http://www.iraqcoalition.org/regulations.

The Defendants

Curtis Whiteford was a Colonel in the U.S. Army
Reserve who lived in Utah. In September 2003, he was
deployed to Iraq on active duty. He was assigned to the
CPA‟s headquarters in the South Central Region (“CPA-
SC”), located in al-Hillah.4 Whiteford was appointed Chief of
Staff for CPA-SC, which made him the second most senior
person in the office after Regional Coordinator Michael
Gfoeller. Whiteford‟s responsibilities included supervising
CPA-SC‟s staff, overseeing CPA-SC‟s budget of $100

4
The CPA was divided into five regions, each of which was
directed by a Regional Coordinator. The South Central region
included the cities of Karbala and al-Hillah, and encompassed
50 percent of the land mass and 48 percent of the population
of Iraq.

6
million, managing CPA-SC‟s reconstruction projects, and
serving as a liaison between the CPA and Iraqi nationals.

Michael Wheeler was a Lieutenant Colonel in the U.S.
Army Reserve who lived in Wisconsin. In October 2003, he
was deployed to Iraq on active duty. He was sent to al-Hillah,
to work for the CPA. Wheeler was appointed Deputy Chief of
Staff and Deputy Civil Administrator for CPA-SC. This made
him responsible for recommending reconstruction projects,
facilitating payments from the CPA to contractors, and
ensuring that CPA-sponsored projects were completed in a
satisfactory manner.

The Conspiracy

Besides Whiteford and Wheeler, there were six other
persons either charged with or who pled guilty to
participating in the conspiracy to defraud the CPA. These
individuals were: (1) Philip Bloom, a U.S. citizen residing in
Romania, who owned and managed construction companies
throughout the world. One of Bloom‟s companies, Global
Business Group Logistics (“GBG Logistics”), entered into
numerous contracts with the CPA and the DoD to carry out
construction projects in Iraq. (2) Bruce Hopfengardner, a
Lieutenant Colonel in the U.S. Army Reserve, who served in
al-Hillah from September 2003 through June 2004.
Hopfengardner was an Operations Officer for CPA-SC,
reporting to Whiteford. His core duties were to oversee
police-related construction projects and to help train the Iraqi
police. (3) Robert Stein, a contract employee of the DoD, who
served as Comptroller for CPA-SC between November 2003

7
and June 2004, and reported to Whiteford. Stein‟s position
gave him unmonitored access to the CPA‟s vault. (4) Debra
Harrison, a Lieutenant Colonel in the U.S. Army Reserve
residing in New Jersey, who was deployed to Iraq from
October 2003 to July 2004. Harrison served as a financial
specialist and Deputy Comptroller for CPA-SC. In both
positions, she fell under Whiteford‟s chain of command. (5)
Seymour Morris, a U.S. citizen residing in Romania, who
operated a Cyprus-based financial services business and
worked closely with Bloom. (6) William Driver, Harrison‟s
husband.

The conspiracy was hatched in December 2003. While
visiting the CPA‟s headquarters in Baghdad, Philip Bloom
met with Stein and Hopfengardner, with whom he was
familiar. The three men formed an arrangement: Bloom
would pay Stein and Hopfengardner $100,000 up front and
$10,000 per month, each, if they would help Bloom secure
contracts from CPA-SC. Stein, who was Comptroller of CPA-
SC, could withdraw money from the vault at any point.
Hopfengardner, who oversaw the office‟s security projects,
could provide Bloom with inside information on bidding to
enable Bloom to secure contracts.

Shortly after the Baghdad meeting, several top
officials at CPA-SC convened to discuss the police academy
construction project. Whiteford, Wheeler, Hopfengardner,
and Stein were present, as were others who were not alleged
co-conspirators, such as Regional Coordinator Mike Gfoeller.
The officials at the CPA-SC meeting collectively decided to
break the police academy construction project into pieces,

8
each under $500,000. This would enable CPA-SC to evade
CPA regulations, which mandated that contracts over
$500,000 be sent to the Head of Contracting Activity for the
CPA, in Baghdad, for review and approval. See CPA,
Memorandum Number 4, § 7, supra. Gfoeller supported the
idea because he wanted to avoid delays in building the police
academy. The co-conspirators had personal motives in
supporting the policy change, because it meant Bloom‟s
companies could receive the police academy contracts
without interference from the CPA office in Baghdad.

In January 2004, Stein brought Michael Wheeler into
the fold. Wheeler‟s position was key: he was more intimately
involved in the details of the contracting process at CPA-SC
than Stein or Hopfengardner. Over the next several months,
Wheeler helped GBG Logistics secure roughly $5.5 million in
contracts. He would develop “scopes of work” that lined up
with the firm‟s capabilities, recommend modifications to their
bids to help them win approval, and direct Bloom to disguise
the bids so it was not obvious that GBG Logistics was
securing so many contracts. In return, Wheeler received
airplane tickets, liquor, and other gifts from Bloom. In July,
Wheeler helped smuggle money out of Iraq, when he flew to
the United States with Debra Harrison on airplane tickets
purchased by Bloom. Harrison was carrying $330,000 in
stolen CPA funds at the time. She paid Wheeler $1,000 and
covered the cost of his hotels and meals on the trip.

Although Whiteford was not at the initial Baghdad
meeting between Bloom, Stein and Hopfengardner, he began
receiving gifts from Bloom in February 2004. First, he

9
received an expensive watch and a laptop. Next, he received
$10,000 in cash to purchase a business-class airplane ticket
home. Although these items were handed to Whiteford by
Stein or Hopfengardner, they had been purchased by Bloom.
In March, Whiteford and Bloom exchanged emails about
starting an airline company in Iraq, and Bloom offered
Whiteford the job of president. Whiteford replied that he
could not accept the position while on active duty for the U.S.
military, but in May, he emailed Bloom information for the
proposed airline – such as which airports in Iraq would be
controlled by the Iraqi government and which would remain
under the control of the Coalition Forces, and how to apply to
either authority to provide airline services. He subsequently
asked Bloom for help in obtaining a sportscar. In May,
Whiteford accepted a business-class airplane ticket home that
was purchased by Bloom.

Over the course of the conspiracy, Stein,
Hopfengardner, Wheeler, Whiteford, and others helped
Bloom obtain $8 million in contracts from CPA-SC. These
included contracts for a new Iraqi police academy in al-
Hillah, contracts to build a Regional Tribal Democracy
Center in al-Hillah, and contracts to construct a library in
Karbala. On a regular basis, Stein stole money from CPA-
SC‟s vault and handed it to Bloom, who wire-transferred the
funds to foreign bank accounts. Bloom used the stolen CPA
funds as well as his own finances to purchase watches,
laptops, airplane tickets, and cars for his co-conspirators.

As the bid-rigging and contract-steering to Bloom was
underway, Stein, Whiteford, and Hopfengardner discussed

10
starting a private security company after completing their
services with the military. In early 2004, Stein and
Hopfengardner ordered a batch of weapons through CPA-SC
intending to keep them after the CPA dissolved, for use by
their company. Stein arranged for the weapons to be delivered
to a military base in Fort Bragg, North Carolina, where
Whiteford would pick them up. When the weapons were not
ready in time, Harrison and Wheeler agreed to help. After
their return to the United States in July 2004, they retrieved
the weapons from North Carolina and drove them to Stein‟s
home. Stein permitted Wheeler to keep several pistols, a
machine gun, and a silencer.

Arrests and Interviews

In 2006, Stein, Bloom, and Hopfengardner entered into
plea agreements with the federal government and agreed to
serve as cooperating witnesses. Bloom pled guilty to
conspiracy, bribery, and money laundering. He was sentenced
to 46 months‟ imprisonment and ordered to forfeit $3.6
million. Stein pled guilty to conspiracy, bribery, and other
charges. He was sentenced to 108 months‟ imprisonment and
ordered to forfeit $3.6 million. Hopfengardner pled guilty to
conspiracy and money laundering. He was sentenced to 21
months‟ imprisonment and ordered to forfeit $144,500.

As the co-conspirators were negotiating these
agreements, the federal authorities also began to investigate
Wheeler. In July 2005, FBI Agent Courtland Jones called
Wheeler by telephone and asked if he had moved weapons
from Fort Bragg to Stein‟s home. Wheeler answered yes. On

11
the morning of November 30, 2005, Wheeler visited an
attorney, and asked what he should do if he were questioned
by investigators. His lawyer told him to cooperate with
questioning, but to call him if he “got stumped.” Later that
same day, at 1:00 p.m., a group of federal agents including
Agent Jones arrived at Wheeler‟s home. They came upon
Wheeler standing in his driveway. Wheeler asked if the
agents were there to talk about Stein. Agent Jones answered
yes, “and other things,” reminding Wheeler of their phone
conversation. Wheeler informed the agents he had spoken
with an attorney, who had instructed him to cooperate but to
call if he “got stumped.” At this point, the agents informed
Wheeler he was under arrest, placed him in handcuffs, and
directed him to sit in their van. About ten minutes later, the
agents removed the handcuffs and gave Wheeler an Advice of
Rights form, which he signed. They proceeded to ask him
about the weapons from Fort Bragg. Wheeler responded they
were in his bedroom closet. At 1:28 p.m., Wheeler signed a
form consenting to a search of his residence. The agents
searched his home, and recovered many weapons not
registered in his name. For about one and a half hours, the
agents questioned Wheeler in his kitchen. The interview
terminated when Wheeler‟s daughter came home, and
Wheeler was taken to the local sheriff‟s office. In the car, he
requested a phone to call his attorney, and the questioning
ceased.

Procedural History

On February 1, 2007, a grand jury returned a 25-count
indictment against Whiteford, Wheeler, Harrison, Morris, and

12
Driver. Whiteford and Wheeler were charged with conspiring
to commit offenses against the United States (18 U.S.C. §
371); bribery (18 U.S.C. § 201(b)(2)); and eleven counts of
honest services wire fraud (18 U.S.C. §§ 1343 & 1346). The
indictment set forth the aims of the conspiracy: bribery, wire
fraud, interstate transportation of stolen property (18 U.S.C. §
2314), and possession and transportation of unregistered
firearms (26 U.S.C. § 5861(d)). Additionally, Wheeler was
charged with interstate transportation of stolen property and
smuggling bulk cash (31 U.S.C. § 5332).5

Before trial, Harrison and Driver were severed from
the case and each pled guilty to certain offenses.6 Also before
trial, Wheeler filed a motion to suppress his post-arrest
statements and the weapons recovered from his house, which
the court denied. On September 8, 2008, Whiteford, Wheeler
and Morris went to trial. On November 7, the jury returned
its verdict. It found Whiteford guilty of conspiring to commit
5
Harrison was charged with conspiracy, bribery, eleven
counts of wire fraud, four counts of transporting stolen
property in interstate commerce, four counts of money
laundering, and one count of tax fraud. Morris was charged
with conspiracy and eleven counts of wire fraud. Driver was
charged with four counts of money laundering.
6
Harrison pled guilty to one count of wire fraud, and Driver to
one count of money laundering. At the time of trial, Harrison
still awaited her sentence on the wire fraud plea, which turned
out to be 30 months‟ imprisonment followed by two years‟
supervised release. Driver was sentenced to three years‟
probation.

13
bribery and interstate transportation of stolen property, and
Wheeler guilty of conspiring to commit all four crimes in the
indictment. It found Whiteford and Wheeler not guilty of all
remaining charges, and Morris not guilty of any charge.
Whiteford and Wheeler filed post-judgment motions, which
the court denied. The court sentenced Whiteford to 60
months‟ imprisonment, followed by two years of supervised
release, and Wheeler to 42 months‟ imprisonment, followed
by three years of supervised release. It ordered Whiteford to
pay $16,200 in restitution, and Wheeler to pay $1,200.

II.

In their first claim of error, Wheeler and Whiteford
contend they should be acquitted because their convictions
were supported by insufficient evidence. We review the
denial of their post-judgment motions advancing such claims
de novo, but in a manner “particularly deferential” to the
jury‟s verdict. United States v. Soto, 539 F.3d 191, 194 (3d
Cir. 2008). We “view the evidence in the light most favorable
to the government and must sustain the jury‟s verdict if a
reasonable jury believing the government‟s evidence could
find guilt beyond a reasonable doubt.” United States v.
Vosburgh, 602 F.3d 512, 537 (3d Cir. 2010) (internal
quotation marks and citation omitted). We “examine the
totality of the evidence, both direct and circumstantial,” and
“credit all available inferences in favor of the government.”
United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003).

14
 A.

The federal conspiracy statute at 18 U.S.C. § 371
provides: “If two or more persons conspire either to commit
any offense against the United States, or to defraud the United
States . . . and one or more of such persons do any act to
effect the object of the conspiracy, each shall be [fined or
imprisoned].” As is clear from the text, Section 371 has two
alternative prongs: an “offenses” prong, which pertains to
conspiracies to violate any federal law, civil or criminal, and
a “defraud” prong, which pertains to conspiracies to defraud
the United States. United States v. Alston, 77 F.3d 713, 718
(3d Cir. 1996). The latter may be accomplished by conspiring
to cheat the U.S. government of money or property, or to
interfere with its operations. United States v. McKee, 506
F.3d 225, 238 (3d Cir. 2007).

To prevail in a conspiracy prosecution, the government
must prove each of the following elements beyond a
reasonable doubt: (1) an agreement between two or more
persons to achieve an unlawful goal; (2) the defendant
intentionally joined the agreement, with knowledge of its
objective; and (3) an overt act taken in furtherance of the
conspiracy by a co-conspirator. United States v. Rigas, 605
F.3d 194, 206 (3d Cir. 2010) (en banc); United States v.
Gebbie, 294 F.3d 540, 544 (3d Cir. 2002). The government
can prove the existence of the conspiratorial agreement and
the knowledge of the defendant with circumstantial evidence
alone. United States v. Tyson, 653 F.3d 192, 208 (3d Cir.
2011) (“We have [] recognized that the existence of a
conspiratorial agreement may be proven by circumstantial

15
evidence alone.”); United States v. Carr, 25 F.3d 1194, 1201-
03 (3d Cir. 1994) (holding a co-conspirator‟s knowledge can
be proven with circumstantial evidence). Moreover, “[t]he
government need only prove that the defendant agreed with at
least one of the persons named in the indictment that they or
one of them would perform an unlawful act.” United States v.
Kelly, 892 F.2d 255, 259 (3d Cir. 1989). “Failing to prove
that all named co-conspirators conspired with the defendant is
not fatal to the government‟s case.” Id.

B.

Whiteford and Wheeler concede the evidence was
sufficient to show the existence of a conspiratorial agreement
to defraud CPA-SC, as well as overt acts taken in furtherance
of that conspiracy. Thus, they concede the evidence was
sufficient to prove elements 1 (agreement) and 3 (overt acts)
of their conspiracy charges. But they claim there was
insufficient evidence to prove the second element – their own
participation in the conspiracy, undertaken intentionally and
with knowledge of its objectives. Whiteford contends there is
no proof he knew of the bid-rigging scheme among his
subordinates, nor that he intended to further the scheme.
Wheeler claims he “knew nothing about the [Baghdad]
meeting, the financial arrangements with Bloom, or the
agreement to steer contracts to Bloom in return for payment,”
and urges that the record fails to show otherwise.

Whiteford and Wheeler‟s insufficiency arguments are
unavailing. As to Whiteford, the jury found him guilty of
conspiring to commit two offenses: bribery (18 U.S.C. §

16
201(b)(2)), and interstate transportation of stolen property (18
U.S.C.§ 2314). There was sufficient evidence of Whiteford‟s
knowledge and intent as to each. With respect to bribery,
Whiteford admitted he was aware that GBG Logistics was
winning an “unusual” share of bids from CPA-SC and that
Stein was regularly giving Bloom large amounts of cash. The
evidence showed he was part of the group that decided to
break the police academy contracts into smaller ones (under
$500,000), and was in part responsible for the unusual level
of access Bloom had to the CPA compound. Meanwhile,
there was considerable evidence of Whiteford‟s personal
receipt of benefits. Stein and Hopfengardner testified to
witnessing Whiteford accept a $3,500 watch, a laptop, and an
expensive business-class airplane ticket to Utah, all of which
had been purchased by Bloom. Whiteford accepted these gifts
outside of the normal procurement process – he did not fill
out any paperwork – and Stein testified he told Whiteford that
Bloom had purchased the business-class ticket. The
government also presented emails in which Whiteford gave
Bloom information about starting an airline in Iraq and asked
for help in obtaining a sportscar in return. At the time he
made such a request, Whiteford knew Bloom had offered
Hopfengardner an expensive car as a gift. Altogether, this
evidence was sufficient to permit a jury to find that Whiteford
knew of or closed his eyes towards the bribery scheme among
CPA-SC officials and Philip Bloom, and that he intended for
the scheme to continue so he could reap personal benefits. See
United States v. Flores, 454 F.3d 149, 155 (3d Cir. 2006)
(holding an individual‟s participation in a conspiracy may be
“demonstrated by showing that a defendant . . . „deliberately

17
closed his eyes to what otherwise would have been obvious to
him‟”) (citation omitted); see also United States v. Clay, 618
F.3d 946, 953 (8th Cir. 2010) (“A willful blindness
instruction is appropriate when the defendant asserts a lack of
guilty knowledge, but the evidence supports an inference of
deliberate ignorance.”) (internal quotation marks and citation
omitted).7

Whiteford proffers a separate reason why the evidence
was insufficient to show his participation in a conspiracy to
commit bribery: during the time in question, he was not a
“public official” performing “official acts.” This argument
lacks merit. The bribery statute underlying Whiteford‟s
conspiracy conviction makes it a crime for a “a public official
. . . [to] seek[], receive[], accept[], or agree[] to receive or
accept anything of value . . . in return for . . . being influenced
in the performance of any official act.” 18 U.S.C. § 201(b)(2).
The term “public official” is defined as any “officer or
employee . . . acting for or on behalf of the United States . . .
in any official function, under or by authority of any such
7
For further support of the notion that willful blindness can
satisfy the knowledge requirement, see Third Circuit Model
Criminal Jury Instructions § 5.06 (“When . . . knowledge of a
particular fact or circumstance is an essential part of the
offense charged, the government may prove that (name) knew
of that fact or circumstance if the evidence proves beyond a
reasonable doubt that (name) deliberately closed (his) (her)
eyes to what otherwise would have been obvious to (him)
(her). No one can avoid responsibility for a crime by
deliberately ignoring what is obvious.”).

18
department[.]” Id. § 201(a)(1). The term “official act” means
“any decision or action . . . in such official‟s official capacity,
or in such official‟s place of trust or profit.” Id. § 201(a)(3).
Whiteford and Wheeler were “employees” of the federal
government when they were deployed to Iraq. 5 C.F.R. §
2635.102(h) (providing that officers in the uniformed services
are employees of the DoD). Their acts assisting Bloom were
taken in their “place of trust” at CPA-SC. Accordingly,
Whiteford and Wheeler were “public officials” in the
performance of “official acts” during the time in question,
and 18 U.S.C. § 201(b)(2) applied to their conduct. See
Dixson v. United Sates, 465 U.S. 482, 496 (1984) (holding the
federal bribery statute is “„applicable to all persons
performing activities for or on behalf of the United States,‟
whatever the form of delegation of authority”) (citation
omitted); United States v. Kidd, 734 F.2d 409, 411-12 (9th
Cir. 1984) (holding an Army private was a “public official”
under 18 U.S.C. § 201(b)(2)).

There was also sufficient evidence of Whiteford‟s
knowledge and intent as to the transportation of stolen
property objective. Stein testified to giving Whiteford
$10,000 from the CPA vault in February 2004, after
Whiteford approached Stein and asked him for assistance in
going on leave. Stein explained it was “obvious” the money
came from the vault – there were no ATM machines in al-
Hillah, and Stein had handed Whiteford a “banded packet” of
cash, which was how funds in the vault were packaged.
Although CPA rules forbade using vault funds for personal
travel expenditures, Whiteford took the $10,000 and
purchased a business-class ticket home. He also transported

19
$3,500 in “left over” money into the United States and tried
to give it to his wife – who refused to accept it, because she
thought it was stolen. From this evidence, the jury could have
concluded Whiteford knew the money was stolen, and
intended to transport stolen property in interstate commerce.

As to Wheeler, the evidence was also sufficient to
support his conviction for conspiracy under 18 U.S.C. § 371.
The jury found Wheeler guilty of conspiring to commit
bribery, wire fraud, interstate transportation of stolen
property, and unlawful possession of firearms. There was
ample evidence of Wheeler‟s knowledge and intent as to
each. With respect to bribery, the government presented
emails and witness testimony demonstrating that Wheeler
regularly provided Bloom with inside information about bids,
coached him in modifying his proposals so they better fit the
CPA‟s specifications, and told him to submit bids under
different company names so that he could win more contracts.
In return, Bloom provided Wheeler airplane tickets, weapons,
and liquor. With respect to honest services wire fraud, the
government presented records of numerous wire transfers
made by Bloom in which he moved stolen-CPA funds into
foreign bank accounts. Bloom then used the funds to pay
kick-backs to his co-conspirators. Because Wheeler was a
member of the bribery conspiracy and was intimately
involved in the contracting process at CPA-SC, it was
reasonable for the jury to find that Wheeler knew of the wire
transfers. With respect to interstate transportation of stolen
property, the government presented records showing that
Wheeler flew to the United States with Debra Harrison in
July 2004, on airplane tickets purchased by Bloom. As noted,

20
Harrison was transporting $330,00 in stolen CPA funds on
this flight, and in email to Stein, she told him she had given
Wheeler $1,000 and paid for his rooms and meals. Finally, as
to the possession of unregistered firearms, a federal agent
testified for the government that two pistols, a rifle, a
machine gun, and a silencer were seized from Wheeler‟s
home, and none were registered to him under the National
Firearms and Registry Record. Accordingly, this evidence
provided the jury sufficient grounds to find Wheeler guilty of
conspiring to achieve all four charged objectives.

C.

Whiteford and Wheeler contest the sufficiency of the
evidence in yet another manner: they argue the evidence was
insufficient because the government failed to prove the CPA
is part of the U.S. government. In making this claim, the
defendants assert that any conviction under 18 U.S.C. § 371
requires that the United States be the intended target of the
conspiratorial scheme. Because the government failed to
show the CPA was a U.S. entity, the defendants claim, the
evidence was insufficient to support their convictions.

This argument lacks merit. As explained supra,
Section 371 of Title 18 has both an “offenses” prong and a
“defraud” prong. Only the latter requires that the conspirators
intend to harm the federal government. Compare United
States v. Feola, 420 U.S. 671 (1975) (holding, in an
“offenses” prosecution under § 371, it was not necessary to
prove the defendant knew the intended victim was a federal
officer), with McKee, 506 F.3d at 238 (3d Cir. 2007) (holding,

21
in a “defraud” prosecution under § 371, there was sufficient
proof of defendants‟ “advocacy of non-tax-payment [to the
federal government] as well as overt acts and omissions . . . to
effectuate those goals”), and United States v. Rankin, 870
F.2d 109, 113-14 (3d Cir. 1989) (holding, in a “defraud”
prosecution under § 371, the indictment pled sufficient facts
to allege defendants intended “to defraud the United States by
impairing the lawful function of the United States District
Court”). Meanwhile, the indictment, jury instructions, and
verdict sheets all make clear that Whiteford and Wheeler
were charged with, tried for, and convicted of, violating the
“offenses” prong of § 371. Even the underlying crimes which
Whiteford and Wheeler were found guilty of conspiring to
achieve – bribery, interstate transportation of stolen property,
wire fraud, and unlawful possession of weapons – do not
require the United States to be the intended target of the
criminal activity.8 Accordingly, the status of the CPA as a
U.S. entity has no bearing on the sufficiency of the evidence.

8
See 18 U.S.C. 201(b)(2)(A) (making it unlawful for “a public
official” to “receive[], accept[], or agree[] to receive or accept
anything of value . . . in return for . . . being influenced in the
performance of any official act”); 18 U.S.C. § 2314 (making
it unlawful to transport “any goods . . . securities or money, of
the value of $5,000 or more, knowing the same to have been
stolen”); 18 U.S.C. § 1343 (“Whoever, having devised . . .
any scheme or artifice to defraud . . . transmits or causes to be
transmitted by means of wire . . . in interstate or foreign
commerce, any writings . . . shall be [punished].”); 26 U.S.C.
§ 5861(d) (“It shall be unlawful for any person . . . to receive

22
 III.

In the alternative, Whiteford and Wheeler request new
trials “in the interest of justice” under Fed. R. Crim. Proc.
33(b) for two reasons. First, they claim a private attorney for
Philip Bloom was “coaching” him from the courtroom while
he testified, thereby tainting the jury‟s verdict. Because the
fact of Bloom‟s coaching was confirmed only after the trial
concluded, the defendants argue, it qualifies as “newly
discovered evidence” and warrants a new trial.9 Second,

or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record.”).
9
In the middle of Bloom‟s cross-examination by Morris‟s
counsel, Whiteford‟s attorney requested a sidebar. He
informed the District Judge that based on his observations and
those of Whiteford‟s wife, he believed a lawyer for Bloom
had been making gestures to him from the courtroom as he
testified. The District Judge instructed a deputy to watch the
person indicated, and the deputy “observed nothing.” No
curative instruction was given, and none of Bloom‟s
testimony was stricken. It turned out the “private attorney”
Whiteford‟s counsel referred to was an associate who had
joined the law firm representing Bloom two weeks earlier.
The associate had not yet passed the bar nor worked on the
case, and was sent to court solely to watch. After the jury
rendered its verdict, the District Judge met with each juror to
thank them for their service. During one such meeting, one
juror suggested to the District Judge that he or she had seen a
person making gestures to Bloom while he testified. The
court informed the parties.

23
Whiteford and Wheeler contend a new trial is necessary
because the court did not charge the jury as to the identities of
the co-conspirators. We review the court‟s denial of
Whiteford and Wheeler‟s post-judgment motions, in which
they advanced these claims, for abuse of discretion. United
States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002).10

The District Court did not err in declining to grant
Whiteford and Wheeler new trials “in the interest of justice.”
As to the alleged “coaching” of Bloom by a lawyer who
turned out to be an associate from the firm representing
Bloom, such a fact, assuming it qualifies as “newly
discovered evidence,” would only warrant a new trial if it was
“of such nature, as that . . . [it] would probably produce an
acquittal.” United States v. Quiles, 618 F.3d 383, 388-89 (3d
Cir. 2010) (citation omitted). “[N]ewly discovered evidence
that is merely impeaching is unlikely to reveal that there has
been a miscarriage of justice. There must be something more .
. . suggest[ing] directly that the defendant was convicted
wrongly.” Id. at 392. Whiteford and Wheeler fail to meet this
standard; that is, they fail to demonstrate how the fact of
Bloom‟s “coaching” would “probably produce an acquittal”
were it presented to a jury. The court found “not a scrap of
information to the effect that Mr. Bloom falsified his
testimony on the basis of whatever this young attorney was
10
Note, however, that only Wheeler included the jury
instructions issue in his post-judgment motion requesting a
new trial. Thus, the analysis of the jury instructions as to
Whiteford is for plain error. United States v. Bey, 736 F.2d
891, 895 (3d Cir. 1984).

24
allegedly signaling to him.” Accordingly, the discovery of
Bloom‟s “coaching” does not warrant a new trial. See Duke v.
United States, 255 F.2d 721, 728 (9th Cir. 1958) (“We
entirely disapprove of the practice of any witness in a
criminal case, especially a government witness, receiving
secret advice from anyone while he is on the stand. It is a
destructive precedent. But, in the present case, it obviously
did not harm [the defendant] . . . . The error was not
prejudicial.”).11

Defendants also seek a new trial because the court did
not include the names of the co-conspirators in the jury
instructions.12 We disagree. In the indictment, the government
alleged that Whiteford and Wheeler “did knowingly conspire
. . . with Bloom, Hopfengardner, Stein and other persons
known and unknown to the Grand Jury” to commit the
conspiratorial schemes listed. When indictments are written
in such a manner, so as to include more than one named co-
conspirator, the identity of the additional co-conspirator(s) is
11
Additionally, for “newly discovered evidence” to warrant a
new trial under Rule 33, there must be “diligence on the part
of the movant” to discover the evidence and bring it to the
attention of the court. United States v. Cimera, 459 F.3d 452,
458 (3d Cir. 2006). Arguably, Whiteford and Wheeler fell
short of the “diligence” requirement in failing to request
additional cross-examination of Bloom, after suspecting that
he was being coached.
12
In discussing the conspiracy charge, the jury instructions
mentioned only the names of the three defendants –
Whiteford, Wheeler, and Morris.

25
not treated as an element of the offense. United States v. De
Cavalcante, 440 F.2d 1264, 1272 (3d Cir. 1971) (“The
existence of an agreement, rather than the identity of those
who agree, is the essential element to prove the crime of
conspiracy.”). The court‟s jury instructions for the conspiracy
charge conformed to the law as well as to the model
instructions of this Circuit. Compare Whiteford App. 2202-12
(jury instructions for the conspiracy charge), with Third
Circuit Model Criminal Jury Instructions § 6.18.371A (model
jury instructions for conspiracy under 18 U.S.C. § 371 in an
“offenses” prosecution). Whiteford and Wheeler cite no
authority supporting their proposition that the jury should
have been instructed on the names of their co-conspirators.
See United States v. Hopper, 384 F.3d 252, 257-58 (6th Cir.
2004), vacated on other grounds, 543 U.S. 1136 (2005)
(upholding the court‟s jury instructions despite the
defendant‟s claim that they caused him prejudicial error in
failing to specify the identity of his co-conspirators); United
States v. Leahy, 82 F.3d 624, 631-32 (5th Cir. 1996)
(upholding the court‟s jury instructions in a conspiracy case
where they referred to “two or more persons” but not any
named individuals).

IV.

Wheeler contends the court erred in declining to grant
his motion to suppress statements he made to the police after
his arrest, and the weapons recovered from his house. He
argues the statements should be suppressed because his
Miranda waiver had been deficient and his “testimony” to the
police involuntary, and the weapons seized were fruit of the

26
poisonous tree. We review the denial of Wheeler‟s motion
“for clear error as to the underlying factual findings and
exercise[] plenary review of the District Court‟s application
of the law to those facts.” United States v. Perez, 280 F.3d
318, 336 (3d Cir. 2002).

The court properly denied Wheeler‟s motion.
Beginning with Wheeler‟s Miranda waiver, there is nothing
to suggest it was deficient. The decision to waive one‟s Fifth
Amendment rights must be the product of “a deliberate choice
to relinquish the protection those rights afford.” Berghuis v.
Thompkins, 130 S. Ct. 2250, 2262 (2010). A court will
inquire first, whether “the relinquishment of the right [was]
voluntary in the sense that it was the product of a free and
deliberate choice,” and second, whether the waiver was made
“with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Moran v. Burbine, 475 U.S. 412, 421 (1986). Wheeler‟s
signing of the “Advice of Rights” form satisfies this standard.
He was not intimidated nor coerced, and his level of
education would have enabled him to read the form and
comprehend its meaning. Berghuis, 120 S. Ct. at 2262
(holding a Miranda waiver was valid when the defendant
“received a written copy of the Miranda warnings . . . could
read and understand English . . . [and] was given time to read
the warnings”). Although Wheeler argues the agents‟ failure
to inform him of the specific charges against him subjected
him to “psychological pressure,” he points to nothing that
might show his “will was overcome or [his] capacity for self-
control vitiated.” United States v. Velasquez, 885 F.2d 1076,
1089 (3d Cir. 1989). He also cites no authority, and we are

27
aware of none, holding that a defendant must know of the
charges against him to validate a Miranda waiver.

Wheeler‟s reference to his attorney – which he made
before signing the Advice of Rights form – does not change
the analysis. When the agents arrived, Wheeler informed
them he had consulted an attorney and that the attorney
directed him to cooperate unless he “got stumped.” These
remarks were not an objectively identifiable request for
counsel, and they did not amount to an invocation of
Wheeler‟s Fifth Amendment rights. See Davis v. United
States, 512 U.S. 452, 459 (1994) (“[I]f a suspect makes a
reference to an attorney that is ambiguous or equivocal in that
a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right
to counsel, our precedents do not require the cessation of
questioning.”). Accordingly, Wheeler‟s remark about his
attorney did not make his subsequent Miranda waiver invalid.

Furthermore, there is no evidence demonstrating that
after Wheeler signed the Miranda waiver form, his statements
to the police and his consent to the search of his house were
involuntary. While in his driveway, Wheeler informed the
officers the weapons from Fort Bragg were in his bedroom,
and he offered to lead them to the spot. He then signed a
consent form authorizing a search of his house, and helped
the officers gain entry. Wheeler participated in a one and a
half hour discussion in his kitchen, during which he answered
questions and retrieved documents the agents requested.
Throughout, there were no threats, nor raised voices, nor did

28
Wheeler indicate he wished to stop answering questions.
There was no indication his will was overborne.

Accordingly, the court did not err in finding Wheeler‟s
statements and the physical items retrieved from his house
admissible.

V.

Whiteford and Wheeler contend the court erred in
refusing to grant use immunity to co-conspirator Debra
Harrison. Wheeler requested immunity for Harrison in a pre-
trial motion, which the court denied, and Whiteford raises the
immunity issue for the first time on appeal. We review for
abuse of discretion with respect to Wheeler‟s claim, Perez,
280 F.3d at 348, and for plain error with respect to
Whiteford‟s, United States v. Olano, 507 U.S. 725, 731-32
(1993).

Use immunity may be conferred by a judge when a
witness refuses to testify. It prohibits the government from
using the witness‟s compelled testimony in a subsequent
criminal prosecution against him, except in select cases. 18
U.S.C. § 6002. Wheeler requested use immunity for Harrison
so she could testify as a defense witness and be precluded
from invoking her Fifth Amendment right against self-
incrimination. The government opposed this request, because
it had an interest in continuing to prosecute Harrison on the
charges to which she had not pled guilty and because her

29
sentencing hearing was scheduled for after the trial.13 A
magistrate judge recommended that Wheeler‟s motion be
denied, and the court adopted this recommendation.

There are two instances in which a defense witness
may be granted use immunity in the interests of due process:
first, where the prosecution has shown a “deliberate intent to
disrupt the factfinding process”; second, where the testimony
is “essential to the defense case and when the government has
no strong interest in withholding use immunity.” Government
of V.I. v. Smith, 615 F.2d 964, 975 (3d Cir. 1980). Only the
second category is relevant here, because neither Whiteford
nor Wheeler have alleged the government intended to disrupt
the factfinding process. Instead, Wheeler claimed in his pre-
trial motion that Harrison‟s testimony was “essential to his
defense” because she would state that he did not know she
was transporting stolen funds when they traveled together,
and that he acted innocently when he took possession of the
weapons in North Carolina. On appeal, Whiteford alleges
Harrison‟s testimony would also have been “essential
exculpatory evidence,” because she would have “corroborated
Whiteford‟s claim that he did not know [the co-conspirators]
were stealing.”

13
The government wanted to avoid having to face a Kastigar
hearing down the road, at which it would have to prove that
immunized testimony was not being used against Harrison in
her prosecution. See Kastigar v. United States, 406 U.S. 441,
462 (1972).

30
 The court‟s refusal to grant use immunity to Harrison
was not in error. To be essential to one‟s defense, testimony
must be “clearly exculpatory.” United States v. Cohen, 171
F.3d 796, 802 (3d Cir. 1999); Smith, 615 F.2d at 974.
Testimony that is “ambiguous . . . cumulative, or . . . found to
relate only to the credibility of the government‟s witnesses”
will not meet this bar. United States v. Lowell, 649 F.2d 950,
964 (3d Cir. 1981). The court‟s determination that Harrison‟s
testimony would not be “clearly exculpatory” for Wheeler
was not an abuse of discretion, because in multiple portions
of Harrison‟s statements to the police, she inculpated
Wheeler. See Perez, 280 F.3d at 350 (holding a witness‟s
anticipated testimony was not “clearly exculpatory” when it
was going to be undercut by a prior inconsistent statement
implicating the defendant). The denial was not plain error as
to Whiteford, because there is no indication Harrison would
have provided “clearly exculpatory” testimony essential to his
defense.

VI.

Whiteford and Wheeler raise several challenges to
their sentences. We review a district court‟s sentence in a
two-staged inquiry. United States v. Tomko, 562 F.3d 558,
567 (3d Cir. 2009) (en banc). First, we ask whether the court
committed any “significant procedural error” when imposing
the sentence – such as “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, [or] failing to consider the §3553(a) factors.” Id.
Next, we review the “substantive reasonableness” of the
sentence, focusing on the totality of circumstances. Id. “The

31
abuse-of-discretion standard applies to both our procedural
and substantive reasonableness inquiries.” Id. (citing Gall v.
United States, 552 U.S. 38, 46 (2007)).

Whiteford challenges his sentence on two grounds:
first, he contends the court erred in its “loss calculation,”
which it used to derive the guidelines range for his conspiracy
conviction; second, he contends the court gave inadequate
consideration to the sentencing factors under 18 U.S.C. §
3553(a). Both claims lack merit. With respect to the loss
calculation, the court held the losses attributable to
Whiteford‟s bribery objective should be equal to the value of
the “reasonably foreseen” bribes of Whiteford and his co-
conspirators. These bribes included automobiles, laptops,
watches, and airplane tickets purchased by Bloom for
Whiteford, Hopfengardner, and Stein, and they totaled
$159,891. The court‟s calculations were proper. According to
U.S.S.G. § 2B1.1(b), a court may include the “reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity” when determining the
“losses” caused by a defendant. See U.S.S.G. §
1B1.3(a)(1)(B); United States v. Robinson, 603 F.3d 230,
233-34 (3d Cir. 2010). There was ample evidence at trial that
Whiteford knew of – or could reasonably have foreseen –
each bribe in the loss calculation. Thus, the $159,891
estimation was factually and legally sound.14

14
It is also worth noting that the court‟s loss calculation was
considerably more conservative than that in the PSR. The
court calculated the losses to be $159,891, which triggered a

32
 Whiteford also contends the court failed to adequately
consider the sentencing factors under 18 U.S.C. § 3553(a). He
alleges it overlooked “the need to avoid unwarranted sentence
disparities among defendants,” see 18 U.S.C. § 3553(a)(6),
because it sentenced him to 60 months while his co-
conspirators received lower terms. But the court considered
each § 3553(a) factor and specifically mentioned the need to
avoid “unwarranted disparities.” It concluded 60 months was
proper for Whiteford, given “the gravity of someone who was
in [his] position” participating in the conspiracy. This
determination was substantively reasonable. See Quiles, 618
F.3d at 397 (“[A] defendant does not have a right to be
sentenced equally with his co-defendants.”).

Wheeler brings three challenges to his sentence, all of
which we reject. First, he contends the court erred in
imposing a four-level enhancement under U.S.S.G. §
2C1.1(b)(3), when it calculated the offense level for the
bribery objective of his conspiracy conviction. A four-level
increase is applied when a theft or fraud offense “involve[s]
an elected public official or any public official in a high-level
decision-making or sensitive position.” U.S.S.G. §
2C1.1(b)(3). The court held § 2C1.1(b)(3) should apply to
Wheeler because as a project officer at CPA-SC, he was an
“integral participant in the bidding, and contracting, and
payment process.” Wheeler‟s “signatures had to be on
recommendations for projects before they went to the contract

level enhancement of 10 for the bribery objective. The PSR
calculated the losses to be over $ 1 million, triggering a level
enhancement of 16. See PSR ¶¶ 186, 189.

33
officers for review” and he was privy to confidential
information about the CPA‟s scopes of work and bid
specifications. The court‟s conclusion was reasonable. See
U.S.S.G. § 2C1.1 cmt. 4(A) (defining a “[h]igh-level
decision-making or sensitive position” as one “characterized
by . . . a substantial influence over the decision-making
process”).

Second, Wheeler argues the court erred in imposing a
six-level enhancement under U.S.S.G. § 2K2.1(b)(1)(C) when
it calculated the offense level for the firearms objective of his
conspiracy conviction. Wheeler‟s claim lacks merit. To count
the firearms involved, the court tallied “all of the unregistered
firearms that were possessed by Stein, Wheeler, and Harrison
as of the day that they‟re all standing at Stein‟s house
divvying up those weapons.” It found “40 or so” weapons
“were encompassed within that entire transaction.” This
calculation was proper. Section 2K2.1(b) provides that all
firearms “involved” in an “offense” are to be included in the
firearms count for the level enhancement. See U.S.S.G. §
2K2.1(b)(1). Wheeler‟s “offense” was conspiring to possess
and transport unregistered firearms, and including all
“unregistered firearms” in the possession of Stein, Wheeler
and Harrison on the day they divided up the weapons was
reasonable. The attachment of the six-level enhancement was
proper. U.S.S.G. § 2K2.1(b)(1)(C) (providing a six-level
enhancement for a firearms count of 25-99).

Finally, Wheeler contends the court failed to
adequately consider the sentencing factors under § 3553(a)
because it overlooked the need to avoid unwarranted

34
disparities when determining his sentence. Wheeler is
incorrect. The court discussed each § 3553(a) factor when it
set his sentence, again mentioning the disparity factor. It
explained why 42 months‟ imprisonment was a fair term for
Wheeler as compared to the sentences for his co-conspirators,
given his high position of authority in Iraq. The court‟s
procedures were proper and its sentence was substantively
reasonable.

VII.

For the foregoing reasons, we will affirm the
judgments of conviction and sentences.

35